Solorio v. United States , 85 F. App'x 705 ( 2004 )

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This order and judgment is not binding precedent, except under the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.
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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.
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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.
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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
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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
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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
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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.
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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
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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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