Nash v. Wal-Mart Stores , 709 F. App'x 509 ( 2017 )

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
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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.
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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.
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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
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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.
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