     Case: 17-30124       Document: 00514695107         Page: 1    Date Filed: 10/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                            Fifth Circuit

                                                                           FILED
                                                                      October 24, 2018
                                      No. 17-30124
                                                                        Lyle W. Cayce
                                                                             Clerk
MARY SANDIFER; AMANDA SANDIFER; RYAN SANDIFER,

               Plaintiffs - Appellants

v.

HOYT ARCHERY, INCORPORATED; NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA; ST. PAUL
FIRE & MARINE INSURANCE COMPANY,

               Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana


Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
       This appeal arises from a most unfortunate, unintended, and
unwitnessed death. Dr. Alan Sandifer was pierced in the head by the cable
guard of his 2007 Hoyt Vulcan XT500 bow, 1 which he was examining, and
possibly modifying, while at his home.              Following his death, his family
members—Mary, Amanda, and Ryan Sandifer (“the Sandifers”)—filed suit



       1 A cable guard is a fiberglass rod that runs perpendicular from the riser—the central
component of the bow where the handle is located—toward the bowstring. It keeps the cable
out of the arrow’s line of fire.
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against Hoyt Archery, Inc. and its insurers (collectively, “Hoyt”).          The
Sandifers brought this action under the Louisiana Products Liability Act
(“LPLA”) alleging that the compound bow was defectively designed.
      The determinative issue on appeal is whether the district court erred by
excluding most of the testimony of the Sandifers’ primary expert, Dr. Kelkar.
In disallowing Dr. Kelkar’s testimony, the district court held, first, that he, as
a substitute expert, exceeded the scope of the expert opinion, theory, and
testimony as earlier defined by the district court when allowing him to enter
the case late into the litigation. Secondly, the court excluded on the grounds
that Dr. Kelkar’s opinion as to the causation of the accident was based on
propensity evidence, relating to the character and habits of Dr. Sandifer as a
hunter. Once the district court ruled on the evidentiary questions, it granted
summary judgment to Hoyt on the ground that the Sandifers did not present
evidence that Dr. Sandifer was engaged in a reasonably anticipated use of the
bow at the time of the accident, a required showing by the LPLA.
      Because we conclude that the court acted within its discretion, we
AFFIRM its grant of summary judgment, dismissing the case. But first let us
get to the facts of the Sandifers’ claims.
                                        I.
      Dr. Sandifer was an avid bow hunter. One evening, while at home, with
his wife seated in a different room, he sat at his computer with his Hoyt
compound bow. His wife asked what he was doing, and he told her that he was
searching the internet for a new part. A few minutes later, his wife heard a
loud noise and found her husband lying unconscious on the floor with the
compound bow’s metal cable guard in his head through his left temple. The
rod went deep into Dr. Sandifer’s brain. He died the next day. No one saw the
accident.


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                                  No. 17-30124
      How the accident occurred is confounding and is the subject of this
litigation. Hoyt, the manufacturer, contends that, when modifying the bow,
Dr. Sandifer voluntarily placed his head in the bow to examine it while pulling
the drawstring; then, he accidentally lost control of the string, causing the
cable guard to enter his head; and that such use of the bow was not a
reasonably anticipated use of the instrument. The Sandifers contend that Dr.
Sandifer did not voluntarily place his head into the bow but instead that the
compound bow was defective, and the defect caused the cable guard to release
and enter Dr. Sandifer’s brain.
      This case was initially filed in the Nineteenth Judicial District Court for
the State of Louisiana. Hoyt removed the case to the U.S. District Court for
the Middle District of Louisiana.
      After over three years of litigation, the Sandifers asked for a continuance
of the trial date that had been set. Their primary expert, Dr. Gautam Ray, a
biomechanical engineer, had been diagnosed with terminal cancer and could
not continue in the case. The Sandifers had employed Dr. Ray to explain how
the accident occurred and to show that Dr. Sandifer’s use of the compound bow
was a reasonably anticipated use. See La. Rev. Stat. 9:2800.54 (stating that a
manufacturer is liable only when an injury “arose from a reasonably
anticipated use of the product”). The district court had qualified Dr. Ray to
testify at trial based upon the standards in Daubert v. Merrell Dow Pharms.
Inc.; that is to say, his methods were reliable and his opinions helpful to the
jury. See 509 U.S. 579 (1993). Further, the court had denied Hoyt’s motion for
summary judgment, partially because Dr. Ray testified that Dr. Sandifer’s
head “most probably than not” ended up between the cable guard and the bow
string involuntarily.
      As previously noted, because of his impaired physical condition, Dr. Ray
withdrew from the case. Afterward, the Sandifers moved the district court to
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allow Dr. Ray to be replaced with another biomechanical engineer. The court
granted that request. The court admonished, however, that the approval of “a
substitute expert was not an opportunity for [the Sandifers] to re-start expert
discovery or engage an expert outside the scope of expertise and methodology
of Dr. Ray.”
      The Sandifers hired Dr. Rajeev Kelkar—an accident reconstruction
expert and biomechanics consultant—who worked for InSciTech, Inc., an
engineering firm that specializes in the investigation and analysis of accidents
and equipment failures. He concluded in his report that it was most likely that
Dr. Sandifer’s injury resulted from a twisting of the bow string that caused Dr.
Sandifer’s head to involuntarily end up between the bow string and the riser
due to a design defect, rather than a volitional act on his part. The basis for
this opinion, as expressed by Dr. Kelkar, was that Dr. Sandifer was a
“meticulous” and “very safety conscious” bow hunter who would know not to
flex his left elbow in a “biomechanically disadvantageous” manner and place
his head in the bow.
      After Dr. Kelkar submitted his analysis and opinion, Hoyt deposed him.
At that deposition, Dr. Kelkar conceded that from a biomechanical perspective,
it was just as likely that Dr. Sandifer was killed by volitionally placing his head
inside the bow as it was by an accidental twisting of the bowstring. But he
added that he believed the second scenario was more likely because of
statements from Dr. Sandifer’s friends and family describing him as a careful
bow hunter and the difficulty of volitionally placing one’s head into a drawn
bowstring. When pressed, Dr. Kelkar conceded that, without the statements




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about Dr. Sandifer’s careful nature as a hunter, he could not say his theory
was more likely than the expert opinion offered by Hoyt. 2
                                             II.
         We turn to the arguments of the parties and the rulings of the district
court.       First, Hoyt moved to exclude portions of Dr. Kelkar’s report.
Specifically, Hoyt argued that Dr. Kelkar’s report exceeded the scope of Dr.
Ray’s expert report and that Dr. Kelkar’s conclusions were based improperly
on Dr. Sandifer’s reputation for safety. Hoyt further moved for summary
judgment.
         The district court granted Hoyt’s motions to exclude the challenged
portions of Dr. Kelkar’s expert report. In its ruling, the court first observed
that Dr. Kelkar’s methods and conclusions were beyond the scope of Dr. Ray’s
report in violation of the court’s instructions when allowing the substitution of
experts. Second, the court disqualified Dr. Kelkar on Daubert grounds. The
court held that neither the Sandifers nor Dr. Kelkar demonstrated that
propensity inferences were a reliable basis for an expert biomechanical
opinion. 3     The court noted that “in his deposition, Dr. Kelkar admitted that
but for his reliance on Dr. Sandifer’s reputation for safety, he would have
reached the same conclusion as . . . the Defendants’ expert.” In the absence of
a showing from the Sandifers that experts in the field of biomechanics




         For example, when asked “So what is it that we know about Dr. Sandifer that you
         2

think makes it more likely -- or one more likely than the other?” Dr. Kelkar responded, “That
[Dr. Sandifer] was a meticulous, careful, safe archer.” This acknowledgement was not an
isolated mistake as the Sandifers insist.
         The court also found such inferences to be based on inadmissible character evidence
         3

and that the evidence Dr. Kelkar sought to introduce was more prejudicial than probative.
Because the court’s Daubert holding is sufficient to settle this issue, for purposes of this
opinion, we will not address these bases for the district court’s holding.

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routinely rely on propensity evidence, 4 the court found that it was not
reasonable for a biomechanical expert to rely upon propensity evidence and
excluded the portions of Dr. Kelkar’s report regarding whether Dr. Sandifer
volitionally placed his head in the bow while modifying it.
       The Sandifers then moved the district court to reconsider its decision to
exclude portions of Dr. Kelkar’s report, arguing that the district court’s ruling
resulted in manifest injustice and constituted an improper discovery sanction.
The district court denied that motion. In denying the motion, the court first
explained that when it allowed the Sandifers’ substitute expert, the court was
clear that the Sandifers could not restart expert discovery. Furthermore, the
district court reaffirmed its Daubert rulings excluding Dr. Kelkar’s proffered
expert opinion on Dr. Sandifer’s use of the bow at the time of the accident.
       After granting Hoyt’s motions to exclude portions of Dr. Kelkar’s report,
the district court then granted Hoyt’s motion for summary judgment.                       In
granting summary judgment, the district court underscored that the Sandifers
conceded in their motion for reconsideration that they could not carry their
burden of establishing a reasonably anticipated use of the bow without the
safety reputation evidence of Dr. Sandifer, which the district court had
excluded. They argued, however, that this propensity evidence should be




       4   We use the term “propensity evidence” to refer to evidence of Dr. Sandifer’s
reputation and/or habit of safe practices to show that Dr. Sandifer acted in accordance with
that reputation on the occasion that produced the accident. See PAUL F. ROTHSTEIN,
FEDERAL RULES OF EVIDENCE RULE 404 (3d ed. Feb. 2018) (“Habit or routine practice, like
character, describes a propensity, but it involves more regular, very specific, somewhat
involuntary responses to a repeated situation.”). We take no position on whether such
evidence is generally inadmissible character evidence or generally admissible habit evidence.
See, e.g., Reyes v. Mo. Pac. R. Co., 589 F.2d 791, 794–95 (5th Cir. 1979) (“Perhaps the chief
difficulty in deciding questions of admissibility under Rule 406 arises in trying to draw the
line between inadmissible character evidence and admissible habit evidence. Quite often the
line between the two may become blurred.” (citing McCormick on Evidence § 195 at 462–63
(2d ed. 1972))).
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allowed because such testimony was evidence of Dr. Sandifer’s habits, not a
description of his personal character. The Sandifers timely appealed.
                                      III.
        On appeal the Sandifers make two arguments. First they argue that the
district court abused its discretion by excluding the testimony of Dr. Kelkar as
beyond the scope of the Sandifers’ original biomechanical expert; and
moreover, excluding this testimony constituted an improper discovery
sanction. Secondly, the district court abused its discretion by excluding Dr.
Kelkar’s opinions based upon Dr. Sandifer’s safe archery practices.         The
Sandifers argue that such evidence was not impermissible character evidence,
but instead the evidence is admissible as habit evidence. Hoyt counters that
the evidence was in fact character evidence and, regardless, such propensity
evidence, be it character or habit, was beyond the scope of Dr. Kelkar’s
biomechanical expertise and formed an unreliable basis for his conclusions.
        In considering the Sandifer’s arguments, we need only address the
district court’s Daubert rulings relating to propensity evidence because, as we
shall see, they provide a sufficient basis for the grant of summary judgment to
Hoyt.
                                      IV.
        We review a district court’s exclusion of expert testimony and all
discovery-related rulings for abuse of discretion. Munoz v. Orr, 200 F.3d 291,
300 (5th Cir. 2000). Because district courts have broad discretion in deciding
the admissibility of expert testimony, “we will not find error unless the ruling
is manifestly erroneous.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th
Cir. 2004) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42 (1997)). We
reverse the trial court only “in ‘unusual and exceptional case[s].’” Id. (quoting
O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 499 (5th Cir. 1985)).


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      As we have noted, the district court held that Dr. Kelkar’s opinion
relating to reasonably anticipated use did not satisfy the standards for the
admissibility of expert opinion under Daubert because it was based upon
unreliable propensity evidence. The Sandifers counter that Dr. Kelkar relied
upon purely biomechanical grounds in his opinion and, alternatively, that the
propensity evidence was admissible as habit evidence. Unsurprisingly, Hoyt
fully defends the reasoning and conclusions of the district court. Our review
of the arguments leads us to conclude that the district court did not abuse its
discretion.
      Under the LPLA, in order to prevail the Sandifers must prove: (1) the
bow possessed an unreasonably dangerous characteristic; (2) the characteristic
proximately caused injury; and (3) the injury arose from a reasonably
anticipated use of the bow. La. Rev. Stat. 9:2800.54. The only issue we need
to consider is whether the district court properly excluded Dr. Kelkar’s opinion
on the element of reasonably anticipated use. Without such testimony, the
Sandifers cannot prevail.
      As did the district court, we review the admissibility of expert opinions
under the framework set out in Daubert v. Merrell Dow Pharms. Inc. See 509
U.S. at 589–95. Under Daubert, expert testimony is “admissible only if it is
both relevant and reliable.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th
Cir. 2002). To establish reliability an expert opinion must “employ[] in the
courtroom the same level of intellectual rigor that characterizes the practice of
an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137,
150 (1999). Finally, “the party seeking to have the district court admit expert
testimony must demonstrate that the expert’s findings and conclusions are
based on the scientific method and, therefore, are reliable.” Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc). The district court
observed that the Sandifers “do not contend that habit or character evidence is
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the type of evidence reasonably relied upon in rendering a biomechanical
engineering opinion.” 5 On appeal, the Sandifers have provided us with no
reason to doubt this statement. Indeed, Dr. Kelkar admitted in his deposition
that his statements based upon evidence of “Dr. Sandifer’s habits as an
individual” are not “biomechanical opinions.” 6
       Apart from exceeding the scope of his qualification as a biomechanical
expert, the propensity evidence Dr. Kelkar based his opinion upon is not a
reliable basis to draw a conclusion regarding Dr. Sandifer’s use of the bow at
the time of the accident. The propensity evidence was offered by witnesses who
testified that Dr. Sandifer was safety-conscious in using and handling the bow
as a hunter and when hunting.                Dr. Sandifer was not hunting when the
accident occurred; he was in his home office and he was engaged in modifying
his bow. This distinction further shows that the district court did not err in
finding that an analysis drawn from these propensity statements was not
helpful to the specific issues before the jury.




       5In their motion for reconsideration of the Daubert ruling, the Sandifers disputed this
characterization of their position but did not point to anything in the record indicating that
biomechanical experts rely upon character or habit evidence.
       6   From Dr. Kelkar’s deposition:
                Q: So what is it that we know about Dr. Sandifer that you think makes
                [Dr. Kelkar’s theory more likely than Hoyt’s theory]?
                A: That he was a meticulous, careful, safe archer. . . . That he, you know,
                did this as a passion and seemed to be doing very well, would not do
                anything remotely like this in terms of volitionally putting his head in
                the way between the cable guards and a string.
                Q. Okay. And you would agree that all of those things that you just
                talked about -- about Dr. Sandifer’s habits as an individual, being
                meticulous and safety conscious and all of that -- those are not
                biomechanical opinions?
                A: No. . . . They’re not. But it’s part of what I have to consider when I
                review the material.

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       We should make clear that Dr. Kelkar relies on this propensity evidence
to establish causation throughout his report and deposition testimony. His
report cites Dr. Sandifer’s “careful, meticulous” nature multiple times. When
pressed on this point, Dr. Kelkar acknowledged several times that it was Dr.
Sandifer’s propensity to handle the bow as a “meticulous, careful, safe archer”
that allowed him to conclude that his nonvolitional theory was more likely than
Hoyt’s volitional theory.        To be sure, an expert may rely upon otherwise
inadmissible facts and data if “‘experts in the particular field would reasonably
rely on such evidence.’” Daubert, 509 U.S. at 595 (quoting Fed. R. Evid. 702). 7
Here, however, the Sandifers and Dr. Kelkar present no reason to doubt the
district court’s finding that experts in the field of biomechanics do not rely upon
such propensity evidence in forming their professional opinions. Cf. Moore,
151 F.3d at 276 (“The proponent need not prove to the judge that the expert’s
testimony is correct, but she must prove by a preponderance of the evidence
that the testimony is reliable.”). Thus, it seems quite clear that the district
court was within the realm of its discretion to conclude that it would be
improper to “invite the jury to rely on expert opinion consisting of conclusions
based partly on generally inadmissible propensity evidence.” Travis v. State
Farm & Cas. Co., 2005 U.S. Dist. LEXIS 49957 (M.D. La. Dec. 23, 2005); see
also Moore, 151 F.3d at 278 (noting that “‘[u]nder the regime of Daubert a
district judge asked to admit scientific evidence must determine whether the
evidence is genuinely scientific, as distinct from being unscientific speculation



       7 The Sandifers argue that the evidence of Dr. Sandifer’s careful nature is properly
characterized as admissible habit evidence. The proper frame of reference here is Rules 701–
703, not Rule 406. Nobody doubts that experts may rely on otherwise inadmissible evidence
if such evidence is relied upon by experts in the field. The question here is the reliability of
Dr. Kelkar’s methods. It is immaterial to our analysis whether the propensity evidence is
characterized as habit or character. What matters is that such evidence is not a reliable basis
for a biomechanical expert opinion.

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offered by a genuine scientist.” (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d
316, 318 (7th Cir. 1996))).
      With the unreliable portions excluded, Dr. Kelkar’s opinion as to
causation of the accident becomes ambivalent and is of no help to the jury in
sorting out a reliable explanation of how the accident occurred. Without the
benefit of the propensity evidence, Dr. Kelkar can only conclude that his theory
is as likely as the defense theory. An expert opinion must “help the trier of fact
to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702;
see also Pipitone, 288 F.3d at 245 (“A perfectly equivocal opinion does not make
any fact more or less probable and is irrelevant under the Federal Rules of
Evidence.”); Brown v. Parker-Hannafin Corp., 919 F.2d 308, 311–12 (5th Cir.
1990). For example, in Pipitone v. Biomatrix, Inc. we held that the district
court properly excluded an expert who testified that he had no “scientific
evidence” to support his conclusion that it was more likely than not that an
infection occurred in a certain way:
      Dr. Millet’s testimony on causation is not helpful to the fact-finder
      because of his inability to conclude that it was more likely than not
      that the Synvisc caused the infection in Pipitone’s knee. A
      perfectly equivocal opinion does not make any fact more or less
      probable and is irrelevant under the Federal Rules of Evidence.
      Therefore, the district court did not abuse its discretion in
      excluding Dr. Millet’s testimony.
288 F.3d at 245. So too here. Dr. Kelkar testified that “biomechanically” Hoyt’s
volitional theory was just as likely as his own theory. Thus, Dr. Kelkar’s
opinion, without the propensity evidence, could not help the jury decide
whether Dr. Sandifer was engaged in reasonably anticipated use of the bow
when the accident occurred. The district court did not abuse its discretion in
excluding Dr. Kelkar’s “perfectly equivocal opinion.” Id.
      In sum, the burden was on the Sandifers to show how the accident
occurred. Their biomechanical expert admits that his biomechanical opinion
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is just as likely as Hoyt’s biomechanical theory. His only response to Hoyt’s
theory is based on unscientific and unhelpful propensity evidence that is not
reasonably relied upon by experts in the biomechanical field and consequently
fails to satisfy Daubert’s requirements for the admissibility of expert opinion.
The Sandifers thus fail in their burden to show that Dr. Sandifer was engaged
in a reasonably anticipated use of the bow at the time of the accident.
Summary judgment was appropriate, and the judgment of the district court is
                                                                   AFFIRMED.




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