                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                   September 8, 2017
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
STEVEN NASH,

       Plaintiff - Appellant,

v.                                                    No. 17-1092
                                          (D.C. No. 1:15-CV-02330-RM-MEH)
WAL-MART STORES, INC.;                                 (D. Colo.)
LOUISVILLE LADDER, INC.,

       Defendants - Appellees.

                        _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
                   _________________________________

      Mr. Steven Nash fell off a 7-foot step ladder and sued the

manufacturer (Louisville Ladder, Inc.) and retailer (Wal-Mart Stores, Inc.),

alleging negligence, strict liability, and breach of an implied warranty. In

district court, Mr. Nash retained Mr. Robert D. Fritz as an expert witness.


*
      We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Louisville and Wal-Mart moved to strike the expert and to grant summary

judgment. After a hearing, a magistrate judge issued a proposed

disposition, which would grant the motion to strike based on the

unreliability of the expert’s opinion.

      On de novo review, the district judge agreed to grant the motion to

strike based on unreliability of the opinion; but the district judge also

relied on Mr. Fritz’s lack of qualifications regarding step ladders. Without

Mr. Fritz’s opinion testimony, the district judge concluded that Mr. Nash

had not established a genuine issue of material fact. Thus, the district

judge granted not only the defendants’ motion to strike but also their

motion for summary judgment.

      At the time of these rulings, Mr. Nash was represented by counsel.

But Mr. Nash is appearing pro se in this appeal. Mr. Nash’s pro se status

requires us to liberally construe his filings, but we do not serve as his

advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005). Even liberally construed, Mr. Nash’s filings do not

provide any plausible basis to disturb the district judge’s rulings. Thus, we

affirm.

                                    * * *

      Standards of review. The opinion testimony could be admitted into

evidence only if the expert was qualified and his opinion testimony was

reliable. Fed. R. Evid. 702. Finding both requirements unsatisfied, the

                                         -2-
district judge granted the motion to strike. We review this ruling for an

abuse of discretion. Etherton v. Owners Ins. Co., 829 F.3d 1209, 1216

(10th Cir. 2016).

      The district judge also granted the defendants’ motion for summary

judgment. This part of the ruling is subject to de novo review. Cillo v. City

of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). In applying this

standard, we view the evidence in the light most favorable to Mr. Nash,

resolving all factual disputes and reasonable inferences in his favor. See

id.

      Mr. Nash’s appellate arguments. Mr. Nash presents six arguments:

      1.   The defendants have not questioned the expert’s report or his
           calculations.

      2.   The magistrate judge relied on the expert’s failure to produce
           calculations, but the expert was not to blame for the failure to
           produce these calculations.

      3.   If Mr. Nash had been allowed to speak at the hearing, the
           outcome might have been different.

      4.   In the final judgment, the district judge did not refer to the
           expert’s calculations.

      5.   The defendants’ counsel conducted an inaccurate demonstration
           at a hearing before the magistrate judge.

      6.   The step ladder did not satisfy standards established under the
           American National Standards Institute.

These arguments are meritless.




                                     -3-
      Discussion of Mr. Nash’s appellate arguments. Mr. Nash denies that

the defendants had questioned the expert’s report or his calculations. But

the defendants did challenge the report, filing a motion to strike that

disputed both Mr. Fritz’s qualifications and the reliability of his opinions.

As for the calculations, this characterization is misleading. Until Mr. Nash

objected to the magistrate judge’s proposed disposition, the defendants had

not obtained the expert’s calculations. Without those calculations, the

defendants had argued that they could not ascertain how the expert was

reaching his conclusions. 1 Mr. Nash’s misleading characterization does not

suggest any error in the rulings.

      In addition, Mr. Nash argues that the expert was not to blame for the

failure to produce his calculations. This argument is puzzling. In his appeal

briefs, Mr. Nash acknowledges that he disagreed from the outset with the

expert’s refusal to produce his calculations. Appellant’s Opening Br. at 4;

see also Appellant’s Reply Br. at 3 (agreeing that his expert should have

presented his calculations at the hearing). The magistrate judge concluded

that the failure to produce the calculations supported striking of the

expert’s opinion testimony.

1
      As discussed below, Mr. Nash ultimately furnished the calculations
when he objected to the magistrate judge’s proposed disposition. Once the
calculations were furnished, the defendants argued that Mr. Nash had
furnished them too late, that Mr. Nash had waived his argument by failing
to present it to the magistrate judge, and that the expert’s calculations were
not part of his report.

                                     -4-
      But the calculations were later furnished to the district judge, and he

considered the issue de novo without relying on the expert’s delay. Thus,

the failure to produce the calculations ultimately played no role in the

district judge’s decision to strike the expert.

      Mr. Nash also argues that if he had been allowed to speak at the

hearing, he could have elicited the expert’s opinions and influenced the

magistrate judge’s proposed disposition. But Mr. Nash had asked the court

to appoint counsel. R. at 123-27. According to Mr. Nash, he was quieted by

his attorney, not by a judge. We have no basis to reverse based on the

attorney’s quieting of Mr. Nash.

      Mr. Nash also states that the district judge’s final judgment did not

reflect consideration of the expert’s calculations. This statement is true,

but the district judge also issued an order discussing the expert’s opinions.

Though the district judge had no obligation to consider the expert’s tardy

information, the judge did so anyway. See ClearOne Commc’ns, Inc. v.

Biamp Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011) (holding that issues

are waived when raised for the first time in objecting to a magistrate

judge’s proposed disposition).

      In addition, Mr. Nash argues that the defense counsel conducted an

inaccurate demonstration before the magistrate judge. But the magistrate

judge’s proposed disposition was subject to de novo review, and we have



                                      -5-
no reason to believe that the demonstration influenced the district judge’s

decision to strike Mr. Nash’s expert.

      Finally, Mr. Nash argues that the step ladder was deficient under the

standards established by the American National Standards Institute. But

Mr. Nash did not present this argument in district court. 2 We could

ordinarily consider this issue for plain error, but we decline to do so

because Mr. Nash has not urged plain error. See Anderson v. Spirit

Aerosystems Holdings, Inc., 827 F.3d 1229, 1238-39 (10th Cir. 2016).

                                    * * *

      Mr. Nash’s arguments do not support reversal of the district court’s

striking of the expert or the court’s award of summary judgment to the

defendants. Thus, we affirm.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




2
      He was represented by counsel at the time.
                                        -6-
