                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 15 2004
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    IGNACIO SOLORIO, as personal
    representative of the estate of Miguel
    Ornelas Solorio; FILIBERTO
    JIMINEZ and ADELEDA ORELAS
    SOLORIO, as heirs of decedent
    Miguel Ornelas Solorio,

                Plaintiffs-Appellants,

    v.                                                   No. 02-4227
                                                   (D.C. No. 2:01-CV-25-K)
    UNITED STATES OF AMERICA,                             (D. Utah)

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.



         Ignacio Solorio died after being hit by a van driven by Susan L. Michel,

an employee of the Bureau of Land Management (BLM) (an agency within the

United States Department of Interior). The decedent’s estate and heirs filed this

wrongful-death suit against the government under the Federal Tort Claims Act,


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
28 U.S.C. §§ 1346(b)(1), 2671-80 (FTCA).          The district court granted summary

judgment in favor of the government after excluding the deposition testimony of

plaintiffs’ expert based on Rule 702 of the Federal Rules of Evidence and

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Solorio

ex rel. Solorio v. United States   , 228 F. Supp. 2d 1280, 1285 (D. Utah 2002).

Plaintiffs appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.     1




                                   Factual Background

       On April 16, 1999, Mr. Solorio was working at a barricaded construction

site next to a main road in Salt Lake City, Utah. Ms. Michel was driving a

government-owned van on her way home from a conference. She veered into the

construction area, hit a dirt pile and cement barrier, then struck and killed

Mr. Solorio. Shortly before the accident, a witness observed the van swerving;

shortly afterwards, another witness described Ms. Michel as being in the throes of

a seizure. Ms. Michel had never before experienced a seizure.

       The parties agree that the timing of Ms. Michel’s seizure is the

determinative factual issue. “[T]he source of the government’s substantive

liability under the FTCA is state law.” Boehme v. United States Postal Serv.,


1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

                                            -2-
343 F.3d 1260, 1264 (10th Cir. 2003). The parties do not dispute the district

court’s statement that “in Utah, a sudden and unforeseeable loss of consciousness

that incapacitates a driver does not constitute negligence because the

circumstances are beyond the control of the driver   .” Solorio, 228 F. Supp. 2d

at 1283 (citing Porter v. Price, 355 P.2d 66, 68 (Utah 1960), overruled on other

grounds, Randle v. Allen, 862 P.2d 1329, 1336 (Utah 1993); footnote omitted).

Thus, liability turns on the question of “at what point in time [Ms. Michel]

suffered the seizure” and became unable to control her driving. Id. at 1284.

       Because Ms. Michel has no useful memory concerning the sequence of

events, the parties constructed their versions of the facts using expert medical

testimony and, to a lesser extent, the testimony of lay witnesses. Plaintiffs

contend that Ms. Michel’s seizure was a result, not the cause, of the accident.

Their expert, Phillip S. Savia, M.D., a board-certified neurologist, opined that the

impact from the accident caused a grand mal epileptic seizure. Additionally,

plaintiffs point to the testimony of a lay witness that the van swerved a few

blocks before the accident, but appropriately stopped at a red light and started

again when the light changed to green. Under plaintiffs’ theory, Ms.     Michel

was able to control the van before the accident, even though she was driving

erratically.




                                           -3-
      The government, in contrast, asserts that the seizure began while Ms.

Michel was driving and it was the seizure that caused her to lose control of the

van. Its neurology expert, Fumisuke Matsuo, M.D., testified that the swerving of

the van was consistent with the initial phase of a seizure. Additionally, an expert

in emergency medicine, E. Martin Caravati, M.D., testified that the head trauma

to Ms. Michel during the accident was not severe enough to cause a seizure.

      The government filed a motion for summary judgment, arguing that

plaintiffs could not establish negligence under Utah law. In support, it provided

excerpts from the experts’ deposition testimony, emphasizing the credentials of its

experts and highlighting testimony backing up its theory of the case. It also

questioned the basis for the position staked out by plaintiffs. In doing so, the

government inserted a footnote citing Daubert, 509 U.S. at 590, and stating that

“Dr. Savia’s subjective belief or unsupported speculation is inadmissible as expert

testimony.” Aplt’s App., Vol. I at 34 n.3.

      In their response brief, plaintiffs did not directly address the Daubert

challenge. They asserted that they had established a prima facie case of

negligence because their expert’s testimony demonstrated a disputed issue of fact

as to when the seizure occurred. They argued that Dr. Savia was qualified to

testify as an expert and also provided a statement in which Dr. Savia stated his

“99.99 percent” certainty that Ms. Michel did not have a seizure before the


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accident. Id. at 147-48. They did not, however, provide Dr. Savia’s basis for

his statement.

      The government’s reply brief mounted an explicit Daubert attack on

Dr. Savia’s testimony. It argued that Dr. Savia’s opinion was so unreliable that it

was inadmissible under Fed. R. Evid. 702. The government characterized the

opinion as speculative and entirely unsupported by clinical experience or

scholarly literature. Id. at 165-67.

      At the hearing on the government’s summary judgment motion, the district

court zeroed in on the Daubert issue, stating that without Dr. Savia’s testimony,

it appeared that there was no evidence of negligence. Id., Vol. 2 at 200-01.

Defense counsel stated:

      [C]ertainly if the Court wants to have a two- or three-day trial on
      [the admissibility] point, that would be possible, or I suppose a
      Daubert hearing to examine just the expert testimony. We feel that
      it’s clear on the record that Dr. Savia has had ample opportunity to
      find a basis for his opinion. He wrote a report, and he was deposed,
      and at deposition he admitted that he based a lot of his findings on
      the assumptions, and he had no support on the literature for his
      opinion. And he also deferred to Dr. Matsuo as the expert of
      epilepsy and seizures.

Id. at 202.

      During the argument of plaintiffs’ counsel, the district court again focused

on the admissibility issue, asking at one time, “[w]hat if your expert is not

permitted to testify because he doesn’t meet the requirements of Rule 702,” id.


                                          -5-
at 203, and at another, “[t]ell me why your guy’s testimony should come in under

Rule 702,” id. at 204. Counsel responded, but generally stressed Dr. Savia’s

qualifications, rather than the basis for his opinion; argued the burden of proof; or

listed material facts allegedly in dispute. He argued that either both experts were

speculating, or neither was.

      The government’s rebuttal argument included a response to the district

court’s question that plaintiffs’ counsel “says that your expert is speculating as

much as his. What do you say to that?” Id. at 208. Defense counsel described

Dr. Matsuo’s citations to medical literature, his interview with Ms. Michel, and

his extensive clinical experience. Id. Counsel also suggested that a pre-trial

Daubert hearing could be held. Plaintiffs’ counsel, however, did not second the

proposal. The court took the suggestion of a Daubert hearing under advisement.

Id. at 212.

      The day after the summary-judgment hearing, without additional

proceedings, the district court issued a memorandum decision and order. The

court determined that plaintiffs had provided no support for Dr. Savia’s testimony

and therefore excluded the testimony as subjective belief or unsupported

speculation. The court also evaluated the opinion testimony of the government’s

experts and decided that the government’s experts had provided “factual bases

grounded in accepted scientific methods for their opinions.” Solorio,


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228 F. Supp. 2d at 1285. Concluding that Dr. Savia’s opinion was essential to

plaintiffs’ negligence case, the court granted     the motion for summary judgment.

Id.

       Plaintiffs have appealed the district court’s ruling. They assert that:

(1) the district court’s decision to exclude expert opinion testimony was made

after inadequate notice and on a truncated record; (2) the court’s analysis was

based on inaccurate facts; and (3) even without Dr. Savia’s opinion, there is a

disputed issue of fact as to whether Ms. Michel should have recognized that she

was ill before the accident and pulled over to the side of the road.


                                      DISCUSSION

       Daubert “established a ‘gatekeeper’ function for trial judges under Federal

Rule of Evidence 702.” When expert testimony is proffered, the “‘trial judge

must determine at the outset . . . whether the expert is proposing to testify to

(1) scientific knowledge that (2) will assist the trier of fact to understand or

determine a fact in issue. Daubert, 509 U.S. at 592.’” Goebel v. Denver &

Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). The judge must

“assess the reasoning and methodology underlying the expert’s opinion and

determine whether it is scientifically valid” and relevant to the case at hand. Id.

This court reviews de novo the question of whether the district court applied the

proper legal test in evaluating the expert opinion and reviews the court’s

                                             -7-
evidentiary ruling under the abuse of discretion standard. Id. “The testimony of

an expert can be rejected on summary judgment if it is conclusory and thus fails

to raise a genuine issue of material fact.” Matthiesen v. Banc One Mortgage

Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).

       Plaintiffs’ first issue is essentially a claim of unfair surprise arising from

the district court’s exclusion of their expert’s testimony. They assert that the

court erred in making its ruling in the absence of a separate motion to exclude

evidence, an explicitly-noticed   Daubert hearing, and a complete record.

       This court has rejected a similar claim in Ralston v. Smith & Nephew

Richards, Inc., 275 F.3d 965 (10th Cir. 2001). In that products-liability suit, the

defendant-manufacturer filed a motion to strike the plaintiff’s expert testimony

and a motion for summary judgment. At a hearing, plaintiff’s counsel agreed to

strike the expert testimony, to substitute a new expert, and to abandon all theories

of liability except a failure-to-warn claim. The district court then granted

plaintiff additional time to file a supplemental opposition to defendant’s summary

judgment motion, focused on the failure-to-warn issue. Plaintiff filed the

opposition, attaching the new expert’s deposition testimony, and also arguing in

favor of the failure-to-warn claim. At the summary judgment hearing, the district

court excluded the new expert’s testimony, based on the court’s finding of

unreliability and a lack of qualifications. It also rejected another expert’s


                                           -8-
affidavit, because the averments in the affidavit contradicted his prior deposition

testimony. The court then granted summary judgment in favor of defendant.

Id. at 968.

      One of the plaintiff’s contentions on appeal was that she was not informed

that the expert’s qualifications would be an issue at the summary judgment

hearing. Id. at 970 n.4. This court rejected the suggestion

      that it was ‘unfair surprise’ for the district court to have excluded
      [the expert’s] testimony at that time. This contention . . . is belied by
      the record. In [defendant’s reply to the supplemental opposition] an
      entire section is devoted to the argument that [the expert] was not
      qualified to render an expert opinion regarding the sufficiency of a
      warning. This reply was filed . . . eleven days in advance of the
      [summary judgment] hearing. As the purpose of the hearing was to
      discuss the issues raised in the parties’ supplemental summary
      judgment papers, it is disingenuous for Plaintiff to now claim that
      she was unaware that [the expert’s] qualifications would be at issue
      at the hearing.

             Nevertheless, [plaintiff] bore the burden of demonstrating to
      the district court that [the expert] was qualified to render an expert
      opinion. Accordingly, [plaintiff] cannot now complain that she was
      unprepared to attend to her burden and discuss her own expert’s
      qualifications at the summary judgment proceeding.

Id. There are obvious parallels between the procedure in Ralston and in the

instant case.

      Plaintiffs cite cases from the Third Circuit to support their contention that

they were not given adequate process. However, the procedural background of

those cases is not comparable. In the case of In re Paoli Railroad Yard PCB


                                         -9-
Litigation, 916 F.2d 829 (3d Cir. 1990), the plaintiffs had no “foreknowledge of

the direction that the district court’s opinion might take.” Id. at 855. Further, the

district court had failed to conduct an in limine hearing, denied oral argument on

the evidentiary issues and on the related summary judgment motion, and entered a

case management order which restricted the plaintiffs’ opportunity to discover the

government experts’ positions. Id. at 854. The facts of Padillas v. Stork-Gamco,

Inc., 186 F.3d 412 (3d Cir. 1999), are also distinguishable. As in In re Paoli, the

plaintiff “could not have known in advance the direction the district court’s

opinion might take” and had no “opportunity to be heard on the critical issues

before having his case dismissed.” Id. at 417.

      Here, plaintiffs’ assertion of unfair surprise rings hollow.   In spite of

receiving notice and an opportunity to be heard, they failed to make an adequate

showing on the Daubert gatekeeping issue. The district court’s exclusion of

Dr. Savia’s expert opinion testimony was not an abuse of discretion.

      Also, the court did not abandon its gatekeeping function by admitting the

government’s expert testimony. In its order, the court summarized the experts’

opinions and their underlying factual bases, Solorio, 228 F. Supp. 2d at 1281-82,

then concluded that they had explained the “accepted scientific methods for their

opinions,” id. at 1285. We see no legal error in the district court’s consideration

of these expert opinions.


                                           -10-
      Plaintiffs’ next issue is closely related to the first. They assert that the

district court based its analysis on incomplete and incorrect facts. On appeal,

plaintiffs have submitted complete deposition transcripts. The district court’s

decision, however, was necessarily based on the deposition excerpts before it

at the time of its ruling.

      For their final issue, plaintiffs argue that their case should have survived

summary judgment even without Dr. Savia’s testimony. They rely on a lay

witness’s testimony that Ms. Michel had managed to stop at a red light and start

when it changed to green, claiming that Ms. Michel could have recognized the

problem and pulled over to the side of the road before causing the accident.

However, the record provides no connection between the ability to stop at

a traffic light and self-knowledge of a disabling seizure. To the contrary, defense

expert Dr. Matsuo testified that it is unlikely that Ms. Michel’s perceptions would

have warned her to stop the car. Aplt’s App., Vol. 1 at 127-28.

      Because we conclude that the district court did not abuse its discretion in

excluding Dr. Savia’s testimony, and that without his testimony the government




                                         -11-
is entitled to judgment as a matter of law, we AFFIRM the district court’s entry

of summary judgment.


                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




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