Kennedy v. Joy Technologies, Inc. , 269 F. App'x 302 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2307
MOLLIE L. KENNEDY, Administratrix of the Estate of Gregory R.
Kennedy, deceased,
Plaintiff - Appellant,
v.
JOY TECHNOLOGIES, INCORPORATED; MATRIC LIMITED,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:05-cv-00030-JPJ)
Argued: December 5, 2007 Decided: March 12, 2008
Before WILKINSON and KING, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed in part, reversed in part, vacated in part, and remanded
by unpublished per curiam opinion.
ARGUED: James J. O’Keeffe, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant. Frank Kenneth Friedman, WOODS ROGERS,
P.L.C., Roanoke, Virginia; Patrick D. Blake, WILLCOX & SAVAGE,
Norfolk, Virginia, for Appellees. ON BRIEF: Monica Taylor Monday,
Charles H. Smith, III, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant. Mark D. Loftis, WOODS ROGERS, P.L.C.,
Roanoke, Virginia, for Appellee Joy Technologies, Incorporated.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from a lawsuit relating to a 2003 mining
accident in southwestern Virginia, in which coal miner Gregory
Kennedy was fatally crushed by a continuous mining machine.1
Mollie Kennedy, the administratrix of her husband’s estate, appeals
from the district court’s award of summary judgment to defendants
Joy Technologies, Incorporated, and Matric Limited. See Kennedy v.
Joy Tech., Inc., No. 2:05-cv-00030 (W.D. Va. Oct. 5, 2006) (the
“Opinion”).2 Mrs. Kennedy contends on appeal that the court erred
in excluding from evidence a portion of the accident investigation
report made by the Mine Safety and Health Administration concerning
her husband’s death (the “MSHA Report”), and in excluding the
opinions of her causation expert.3 As explained below, we affirm
the court’s ruling on the expert, reverse its ruling on the MSHA
Report, vacate the summary judgment award, and remand.
1
A continuous miner is a piece of mining equipment that cuts
coal directly from a coal seam, replacing many conventional mining
tasks such as drilling and blasting. Consol. Coal v. Marshall, 663
F.2d 1211, 1213 n.1 (3d Cir. 1981).
2
The Opinion can be found at J.A. 1236-43. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.)
3
Mrs. Kennedy also contends on appeal that the award of
summary judgment to the defendants resulted from an impermissible
weighing of the causation evidence, i.e., that the court failed to
view the evidence in the light most favorable to her, as the
nonmoving party. For the reasons discussed infra note 14, we need
not reach this contention.
2
I.
A.
At approximately 10 a.m. on October 22, 2003, Gregory Kennedy,
a forty-one-year-old coal miner, was operating a continuous miner
(the “mining machine”) with a remote control device (the “remote
controller”) in an underground mining operation in Paramount Coal
Company’s No. 7 mine, in Dickenson County, Virginia.4 Although Joy
sold the remote controller under its name as a component of the
mining machine, Matric had manufactured the remote controller under
contract with Joy. The remote controller contained two levers,
each of which controlled one of the mining machine’s two tracks,
generally referred to as “trams,” on its right and left sides. By
utilizing the remote controller’s two levers, the operator
controlled the trams and thus the direction of the mining machine.
In his work, Mr. Kennedy walked alongside the mining machine during
its operations and wore the remote controller on a harness strapped
to his body.
On the morning of October 22, 2003, Mr. Kennedy was engaged in
a process called “retreat” mining (also known as “pillaring”), and
was backing the mining machine out of a cut it had made in a pillar
4
The facts underlying this appeal are presented in the light
most favorable to Mrs. Kennedy, as the nonmoving party with respect
to the summary judgment motion. See Seabulk Offshore, Ltd. v. Am.
Home Assur. Co., 377 F.3d 408, 418 (4th Cir. 2004).
3
of coal.5 Mr. Kennedy backed the mining machine through an
intersection of two mine entries (underground tunnels within a coal
mine), preparing to make the next cut into the pillar. At the
time, two other coal miners, Anthony Blackburn and Willie Mullins,
were nearby hanging a ventilation curtain, with their backs to Mr.
Kennedy. After noticing a change in the sound of the mining
machine, Blackburn turned and observed that Mr. Kennedy was no
longer moving. He immediately illuminated Mr. Kennedy and the
mining machine with a light, and saw that Kennedy was slumped over
with blood flowing from his nose and mouth. Blackburn promptly
approached Mr. Kennedy and discovered that he was stuck between the
mining machine and the corner of the coal rib (the wall of the
mine) around which the machine had been maneuvering. At that time,
Mr. Kennedy’s back was against the coal rib and the mining machine
was pressed against his abdomen. Although the mining machine’s
left tram was spinning, Blackburn observed that the levers on the
remote controller were not depressed.
Blackburn promptly hit the emergency stop button on the remote
controller, de-energizing the mining machine and stopping the left
tram from spinning. While other miners hurriedly sought emergency
assistance, Blackburn tried to move the mining machine away from
5
“Pillar” or “retreat” mining is the process by which a coal
mining operation works “back from a remote portion of the mine
toward the entrance and permit[s] the roof to fall in as the
pillars of coal supporting it [are] removed.” Alsted Coal Co. v.
Yoke, 200 F.2d 766, 767 (4th Cir. 1952).
4
Mr. Kennedy’s body by using the remote controller. Although
Blackburn cut the remote controller from Mr. Kennedy’s body, he was
unable to get it to function. Finally, after removing the power
cord from another unit and attaching it to the remote controller,
Blackburn was able to move the machine away from Mr. Kennedy’s
body. Mr. Kennedy was then airlifted to the emergency room of St.
Mary’s Hospital in Norton, Virginia, where he was declared dead at
10:55 a.m.
The state agency responsible for mine safety in Virginia, the
Commonwealth’s Department of Mines, Minerals, and Energy (“DMME”),
was notified of Mr. Kennedy’s fatal accident within twenty minutes.
A few minutes later, MSHA also received such notification, and
representatives of both agencies arrived at the coal mine about
mid-day to begin a joint investigation. The MSHA investigatory
team included an electrical engineer, a mining engineer, a mine
inspection supervisor, and a mine safety and health inspector. The
MSHA team, working with DMME, collected relevant information,
questioned company personnel, and examined and photographed the
accident scene, beginning their work within two or three hours of
the accident. The investigation proceeded thereafter over several
months with an expanded investigative team, including, inter alia,
the district manager and assistant district manager of MSHA’s
regional office. From this effort, the MSHA team developed precise
drawings of the accident scene. The team conducted extensive
5
interviews with those having knowledge of the accident and tested
the mining machine to assess whether it had been functioning
properly at the time of the fatality. It also tested the remote
controller, along with its various power sources and components, in
a laboratory setting.
MSHA’s investigative efforts culminated in its detailed MSHA
Report, which fully described the accident investigation and
included appendices on MSHA’s examination and testing of the mining
machine and remote controller. After describing Mr. Kennedy’s
activities prior to the accident, the MSHA Report detailed the
tragic event, including the following:
Kennedy was located close to the inby, left corner of the
outby block when the machine pivoted to the right. He
was crushed between the machine’s motor compartment of
the ripper head and the coal rib. He was standing with
his back against the coal rib and the machine against his
abdomen. The bottom of the remote controller was against
the right portion of Kennedy’s abdomen. The controls of
the remote controller were not depressed by any means.
Neither his hands nor any other objects were on the
controls. The left side track on the machine was still
spinning in the forward direction.
J.A. 627. The MSHA Report observed that there were no eye
witnesses to the accident, “[n]o one stated the continuous mining
machine would make unexpected movements prior to the accident,” and
“[n]o one stated Kennedy had been previously observed within the
turning radius of the machine.” Id. at 630. Importantly, the
“Overview” section of the Report concluded that:
The most likely explanation for this continued operation
is a build up of debris in the left side track operating
6
lever’s socket, located on the remote controller, which
prevented the lever from returning to its neutral
position.
Id. at 623. The MSHA Report listed “causal factors” in its “Root
Cause Analysis” section, concluding that the “primary cause was the
victim’s position within the turning radius of the continuous
mining machine while it was being trammed.” Id. at 632. The
Report also specified another “causal factor,” concluding that
“[t]he remote control transmitter could have caused the left tram
drive to continue after the machine operator released the tram
lever due to debris lodged between the tram lever and the plate.”
Id. at 633. In its “Conclusion” section, the Report determined, in
language similar to that used in its Overview, that:
The left side track of the machine apparently continued
to move due to a fouled tram lever on the remote
controller. Debris accumulated in the lever’s socket
prevented the lever from returning to its neutral
position.
Id. In its Appendix C, the MSHA Report indicated that “the socket
for the left tram lever was nearly full of dust and dirt,
restricting its free travel.” Id. at 639.6
6
The Report also related that the MSHA investigation team had
learned of a subsequent incident that occurred six months after Mr.
Kennedy’s fatal accident. In that incident, the left side tram of
the same mining machine continued to operate after both tram levers
on a replacement remote controller had been released, causing the
machine to slew to the right.
7
B.
On July 7, 2005, Mrs. Kennedy, for her husband’s estate, filed
suit against the defendants in the Western District of Virginia,
asserting that his death was caused by a defective mining machine
and its associated defective remote controller. Specifically, Mrs.
Kennedy alleged two negligence claims plus a products liability
claim, contending that the defendants had negligently designed the
mining machine and remote controller and negligently failed to warn
of their dangers. In her products liability claim, Mrs. Kennedy
contended that the defendants had breached implied warranties of
merchantability and fitness for a particular purpose because the
mining machine and remote controller were defectively designed,
manufactured, and marketed. These allegations are spelled out in
the Amended Complaint filed by Mrs. Kennedy on September 29, 2005,
which sought both compensatory and punitive damages. On August 11,
2006, Mrs. Kennedy abandoned her negligence claims.
On September 5, 2006, the defendants moved for summary
judgment on the products liability claim, asserting that Mrs.
Kennedy was unable to prove that their products were defective.
Defendant Matric also contended that Mrs. Kennedy could not prove
that any defect in its remote controller caused the death of Mr.
Kennedy. In support of their contentions, the defendants argued
alternate causes of the fatal accident, through expert testimony
and other evidence — first, that Mr. Kennedy had committed user
8
error, based in part on his alleged position within the “red zone,”
or turning radius of the mining machine, at the time of the
accident; and, second, that Paramount Coal had made unauthorized
alterations to the remote controller that allowed excessive dust
and debris to accumulate in its tram levers.
When they sought summary judgment, the defendants also moved
to exclude the evidence of Mrs. Kennedy’s expert witnesses, Dr.
Thomas Butler and Dr. Farhad Booeshaghi. In response to the
exclusion motion, Mrs. Kennedy withdrew Dr. Booeshaghi as an
expert, but opposed the motion to exclude Dr. Butler. In
opposition to the defendants’ summary judgment and exclusion
motions, Mrs. Kennedy filed, inter alia, the expert report and
testimony of Dr. Butler, the MSHA Report, and various documents
illustrating the problems that defendant Joy had experienced
earlier with debris accumulation in its remote controllers and the
resulting unplanned movements of its mining machines.7
The district court conducted a motions hearing on October 4,
2006, and issued its Opinion the next day, granting summary
judgment to the defendants and excluding the opinions of Dr.
Butler. By its Opinion, the court concluded that “[a]fter a
7
At the request of MSHA, and after receiving complaints that
remote controllers were sticking because of debris, Joy made a
series of design revisions to its remote controllers. In
connection with a recall of its remote controllers — necessary to
install the mandated revisions — Joy warned its customers to
“[p]lease remember that unplanned machine movement may also occur
due to sticking or damaged switches.” J.A. 974.
9
careful review of the summary judgment record, . . . the plaintiff
is unable to prove causation in this case, an essential element of
her claim of breach of warranty.” Opinion 5. The court went on to
relate that,
[w]hile it is certainly possible that this tragic
accident was caused by the excessive accumulation of coal
fines and debris in the control sockets, the evidence is
equally strong that the unplanned movement of the left-
hand tram resulted from other causes — for example, an
electronic malfunction (as suggested by one of the
plaintiff’s former experts) or an inadvertent error on
the operator’s part (as suggested by a defense expert).
Id. After observing that, in a products liability action, proof of
causation must ordinarily be supported by expert testimony, the
court considered the issue of whether the opinions of Dr. Butler
were admissible. Id. In so doing, the court recognized that Dr.
Butler had “opine[d] in his report that the accident was caused by
accumulated debris in a tram control lever socket,” but noted that
Dr. Butler “did no testing,” failed to “perform[] any calculations
regarding the accident and admitted that there could be alternative
explanations,” and that his testimony relied primarily on the MSHA
Report. Accordingly, the court granted the defendants’ “motion to
exclude Butler’s testimony on this point.” Id. at 6.8
8
It is unclear whether the court excluded all of Dr. Butler’s
opinions, or only his conclusion that the accident was caused by
accumulated debris in the remote controller’s lever socket. For
the purposes of our analysis, we assume that all of Dr. Butler’s
proposed opinions were excluded.
10
The district court — acting sua sponte9 — then determined
that “the MSHA report’s opinion that ‘the most likely explanation’
for the accident is debris in the lever socket of the 3-X remote
[controller] is likewise entirely speculative and thus inadmissible
under [Federal Rule of Evidence] 803(8)(C).” Id. at 7.10
Accordingly, the court concluded that “the plaintiff is unable to
prove an essential element of her case — causation — and thus her
suit must fail.” Id. In so ruling, the court pointed out that
defendant Joy “did not directly assert insufficient causation
evidence as a ground” for summary judgment, but that defendant
Matric had argued this proposition. The court thus observed that
its ruling would not come as a surprise to Mrs. Kennedy. Id.
9
The district court raised the issue of admissibility of the
MSHA Report at the motions hearing, asking Mrs. Kennedy’s counsel,
“does the plaintiff contend that the MSHA report, including its
finding that you read to me, is admissible?” J.A. 1232. After
Mrs. Kennedy’s counsel responded in the affirmative, the court
asked the defendants for their position. Not having previously
raised an issue concerning the admissibility of the Report, the
defendants simply responded that, if the court intended to admit
the conclusions of the MSHA Report, they must meet evidentiary
standards of reliability. From this record, it is clear that the
defendants had not contemplated the possibility that the MSHA
Report’s conclusions might be deemed inadmissible.
10
The Opinion seems to indicate that only the “MSHA report’s
opinion” — as opposed to the entire Report — was excluded.
Opinion 7. Because the parties share this understanding, we assume
that the district court considered the MSHA Report, save the
Report’s conclusion in its “Overview” section, that the “most
likely explanation for this continued operation is a build up of
debris in the left side track operating lever’s socket.” J.A. 623.
11
Two weeks later, on October 20, 2006, Mrs. Kennedy sought
relief under Federal Rule of Civil Procedure 59(e), requesting the
district court to reconsider its summary judgment award to the
defendants on the products liability claim. The court denied
reconsideration on November 13, 2006, and Mrs. Kennedy filed her
notice of appeal on December 12, 2006. We possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s award of summary
judgment, viewing the facts and all inferences drawn properly
therefrom in the light most favorable to the nonmoving party.
Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408, 418
(4th Cir. 2004). An award of summary judgment is appropriate only
“if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). A genuine issue of material fact is one “that
might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
opposing a summary judgment motion, the nonmoving party is entitled
to have the “credibility of his evidence as forecast assumed, his
version of all that is in dispute accepted, [and] all internal
12
conflicts in it resolved favorably to him.” Charbonnages de France
v. Smith, 597 F.2d 406, 414 (4th Cir. 1979). In assessing a
summary judgment motion, a court is entitled to consider only the
evidence that would be admissible at trial. See Maryland Highways
Contractors Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1251
(4th Cir. 1991) (noting that “hearsay evidence, which is
inadmissible at trial, cannot be considered on a motion for summary
judgment”).
A district court possesses broad latitude in ruling on the
admissibility of evidence, including expert opinions, and we are
unable to overturn evidentiary rulings with respect to relevance
and reliability absent a finding that the presiding court abused
its discretion. See GE v. Joiner, 522 U.S. 136, 141-42 (1997). A
district court has abused its discretion if its evidentiary ruling
was guided by erroneous legal principles, or rested upon a clearly
erroneous factual finding. See Westberry v. Gislaved Gummi, A.B.,
178 F.3d 257, 261 (4th Cir. 1999).
III.
A.
In considering this appeal, we first assess Mrs. Kennedy’s
contention that the district court abused its discretion in
excluding the MSHA Report’s conclusion on the cause of her
husband’s fatal accident, as being “entirely speculative and thus
13
inadmissible under [Federal Rule of Evidence] 803(8)(C).” Opinion
7. As noted, a team of MSHA officials and investigators arrived on
the accident scene shortly after it occurred on October 22, 2003.
The MSHA team, comprised of engineers, safety inspectors, and other
experts, worked jointly with the DMME to secure the relevant
information, question witnesses, and examine and photograph the
accident scene, beginning their effort within a few hours of the
accident. During the investigation, MSHA tested the mining machine
and remote controller, seeking to ascertain whether they had been
functioning properly at the time of the fatality.
When the MSHA Report was finalized, its “Overview” section
concluded that:
The most likely explanation for this continued operation
is a build up of debris in the left side track operating
lever’s socket, located on the remote controller, which
prevented the lever from returning to its neutral
position.
J.A. 623. In its summary judgment ruling, however, the Opinion
determined that “the MSHA report’s opinion that ‘the most likely
explanation’ for the accident is debris in the lever socket of the
3-X remote [controller] is likewise entirely speculative and thus
inadmissible under Rule 803(8)(C).” Opinion 7. Mrs. Kennedy
challenges this adverse admissibility determination, contending
that consideration of this aspect of the MSHA Report is proper with
respect to the summary judgment issue, and that such consideration
will compel the denial of summary judgment to the defendants.
14
Mrs. Kennedy’s appellate contention on the admissibility of
the MSHA Report’s conclusion implicates the provisions of Federal
Rule of Evidence 803(8)(C). That hearsay exception specifically
addresses the use in evidence of “factual findings resulting from
an investigation made pursuant to authority granted by law.” Fed.
R. Evid. 803(8)(C).11 It specifies that:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness . . . (8)
. . . Records, reports, statements, or data compilations,
in any form, of public offices or agencies, setting forth
. . . (C) [when used] in civil actions and proceedings .
. . factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources
of information or other circumstances indicate lack of
trustworthiness.
Id.Under Rule 803(8)(C), the evidentiary admissibility of public
records and reports is deemed to be presumed, based on the policy
determination that such admissibility is warranted “because of the
reliability of the public agencies usually conducting the
investigation, and their lack of motive for conducting the studies
other than to inform the public fairly and adequately.” Ellis v.
Int’l Playtex, Inc., 745 F.2d 292, 300 (4th Cir. 1984) (internal
11
MSHA’s investigation and Report on Mr. Kennedy’s fatal
accident were made pursuant to authority granted by law. See 30
U.S.C. § 813(a) (requiring authorized representatives of Secretary
of Labor (MSHA) to make frequent inspections and investigations of
mines to determine, inter alia, causes of accidents); 30 C.F.R. §
50.1 (describing MSHA’s authority to “investigate, and to obtain
and utilize information pertaining to, accidents, injuries, and
illnesses occurring or originating in mines”).
15
quotation marks omitted). As the Supreme Court has recognized,
“portions of investigatory reports otherwise admissible under Rule
803(8)(C) are not inadmissible merely because they state a
conclusion or opinion.” Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 170 (1988). When the trustworthiness of such an investigative
report has been challenged, a court should assess and weigh factors
such as: (1) the timeliness of the investigation; (2) the special
skill or experience of the investigators; and (3) any possible
motivation problems. Ellis, 745 F.2d at 300-01. We have also
identified other factors that may, in the proper circumstances, be
appropriate to such an evidentiary assessment, including
“unreliability, inadequate investigation, inadequate foundation for
conclusions, [and] invasion of the jury’s province.” Distaff, Inc.
v. Springfield Contracting Corp., 984 F.2d 108, 111 (4th Cir.
1993).
In light of the foregoing, the district court necessarily
abused its discretion in excluding the MSHA Report’s conclusion
from its summary judgment assessment. First and foremost, the
court failed to recognize and apply a presumption of admissibility
to the MSHA Report. As we recognized in Zeus Enterprises, Inc. v.
Alphin Aircraft, Inc.,“[t]he admissibility of a public record
specified in the rule is assumed as a matter of course, unless
there are sufficient negative factors to indicate a lack of
trustworthiness.” 190 F.3d 238, 241 (4th Cir. 1999) (internal
16
citations omitted). Furthermore, the party opposing the admission
of such a report bears the burden of establishing its
unreliability. Ellis, 745 F.2d at 301. Thus, Rule 803(8)(C) “is
not a rule of exclusion, but rather is a rule of admissibility,” so
long as the proffered report satisfies the requirements of the
rule. Zeus, 190 F.3d at 241.
In this situation, the district court excluded the MSHA
Report’s conclusion from its summary judgment assessment without
identifying or explaining any “negative factors [that] indicate a
lack of trustworthiness,” sufficient to overcome the presumption of
admissibility. Id. at 241. Although the court observed that the
Report’s conclusion was speculative, it failed to identify any
deficiencies in the MSHA investigation or in MSHA’s testing on the
mining machine and remote controller. As the Supreme Court
recognized in Beech Aircraft, if an investigatory report is
otherwise admissible under Rule 803(8)(C), portions of that report
are not rendered inadmissible simply because they state a
conclusion or opinion. 488 U.S. at 170. Accordingly, the rule of
presumptive admissibility created by Rule 803(8)(C) was applicable
to both the data and the conclusions spelled out in the MSHA
Report.
Moreover, the district court failed to assess the reliability
of the MSHA report’s conclusion by use of the various factors
recognized by our precedent. And, these factors plainly weighed in
17
favor of the admissibility of the Report, i.e., — MSHA had
investigated the fatal accident over several months, beginning
immediately after it occurred; the MSHA investigators possessed
special skills and experience; and the defendants have not
suggested any “motivational problems” relating to either the
investigation or the Report. Ellis, 745 F.2d at 300-01(determining that court should assess admissibility of
investigatory report by examining timeliness of investigation,
special skill or experience of officials, and possible motivation
problems).
Mrs. Kennedy also emphasizes on appeal that the court should
not have ruled sua sponte on the admissibility of the MSHA Report’s
conclusion. She argues that, despite extensive briefing on the
summary judgment issues, the defendants had never challenged the
admissibility of the Report. As a result, Mrs. Kennedy relied on
the Report’s unchallenged and unassailed contents as being
admissible in their entirety, and she contends that the Report was
central to her opposition to the defendants’ summary judgment
request.12 Although a trial court possesses broad discretion in
12
On appeal, the defendants now seek to raise issues on the
trustworthiness of the MSHA Report. Specifically, they contend
that the Report was “rife with contradictions.” Br. of Appellees
46. Their contention in this regard is premised on the fact that
portions of the Report conclude that a stuck switch could have
caused the accident, whereas other portions are more certain of
this result. The defendants now argue that the Report is
unreliable because it does not indicate whether the investigators
were qualified or whether they ruled out operator error as a
18
addressing evidentiary issues in any pending case, the defendants
bore the burden of proof on this issue, and they raised no
“negative factors to indicate a lack of trustworthiness” of the
Report. Zeus, 190 F.3d at 241; see also Ellis, 745 F.2d at 301(concluding that “burden is on the party opposing admission to
demonstrate that the report is not reliable” and determining that
this is so because “it is far more equitable to place that burden
on the party seeking to demonstrate why a time tested and carefully
considered presumption is not appropriate”).
In these circumstances, the district court erred, as a matter
of law, in failing to accord a presumption of admissibility to the
conclusions of the MSHA Report. It also erred in failing to apply
the various factors recognized by our precedent for assessing the
reliability of such a report, and in presumably placing the burden
on Mrs. Kennedy to establish that the Report’s conclusions were
admissible — rather than on the moving defendants to show they
were inadmissible. Accordingly, the district court abused its
discretion in excluding the MSHA Report’s conclusion from its
possible cause, and because the Report conflicts with the DMME’s
conclusion. The defendants, of course, should have presented these
contentions in the district court, rather than in this appeal.
19
summary judgment consideration.13 We thus reverse the court’s
ruling as to the MSHA Report’s conclusion.14
B.
Finally, Mrs. Kennedy asserts that the district court erred in
excluding her proffered expert, Dr. Thomas Butler. According to
Mrs. Kennedy, the court abused its discretion when it excluded Dr.
Butler’s opinions, premised on its determination that Butler had
failed to perform any independent testing, and relied solely on the
MSHA Report. The defendants, in contrast, contend that Butler’s
qualifications were highly questionable and that he based his
opinion on a single line in the MSHA report’s “Overview.” After
acknowledging that Dr. Butler had opined that the accident was
caused by accumulated debris in a tram control lever socket, the
13
We note that evidence otherwise admissible under Rule
803(8)(C) remains subject to other pertinent evidentiary
limitations, such as those in Rules 402 and 403. See Fed. R. Evid.
402 (providing for exclusion of evidence which is not relevant);
Fed. R. Evid. 403 (providing for exclusion of relevant evidence if
probative value is outweighed by danger of unfair prejudice,
confusion, or delay).
14
In light of our disposition of the MSHA Report issue, we need
not address Mrs. Kennedy’s contention that the district court
erroneously awarded summary judgment to the defendants after
weighing the evidence on causation and determining that it was
“equally strong” on both sides. Opinion 5. On remand, the
evidence of causation should be revisited and include the MSHA
Report’s conclusion. We note, however, our concern with the
apparent consideration of material initially presented by Mrs.
Kennedy’s withdrawn expert witness, and observe that she is
entitled to have her evidence viewed in the proper light. See,
e.g., Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979).
20
court determined that “Dr. Butler’s deposition, part of the summary
judgment record, clearly shows that this opinion is mere
supposition on his part, based primarily on his reading of the
report of the investigation of the accident by [MSHA].” Opinion 6.
Because “Dr. Butler did no testing nor performed any calculations
regarding the accident and admitted that there could be alternative
explanations for the accident that were beyond his expertise,” the
court excluded Dr. Butler’s testimony “on this point.” Id.We review a district court’s exclusion of expert testimony for
abuse of discretion, and we do “not overturn Daubert evidentiary
rulings with respect to relevance and reliability absent an abuse
of discretion.” Bryte v. Am. Household, Inc., 429 F.3d 469, 475
(4th Cir. 2005) (citing Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993)). A district court is afforded “considerable
leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999). The rules of evidence
provide that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.” Fed. R.
Evid. 702. And, as the Supreme Court has explained, “[t]he trial
judge must ensure that any and all scientific testimony or evidence
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admitted is not only relevant, but reliable.” Daubert, 509 U.S. at
589.
Dr. Butler’s report indicates that he was “asked to review the
available documents and other materials and to determine, if
possible, the cause of the accident.” J.A. 795. The documents and
materials that Dr. Butler reviewed in the preparation of his report
included: the complaint, answer, and certain other pleadings;
photographs and videotapes of the scene of the accident; the DMME
report, the MSHA Report and data; audio cassettes of interviews
with those who witnessed relevant events on October 22, 2003;
documents produced by Joy; and deposition testimony. Although Dr.
Butler’s report provides a helpful summary of the deposition
testimony, the MSHA Report, and the documents produced by Joy, it
does not do so with any specific scientific gloss or expertise.
Furthermore, most of the conclusions of his report were apparently
adopted from the MSHA Report.
The Supreme Court’s decisions in Daubert and Kumho Tire, read
together, mandate the trial courts to serve as gatekeepers on
expert evidence, and to “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.”
Daubert, 509 U.S. at 589; see also Kumho Tire, 526 U.S. at 152. In
this case, Dr. Butler’s report does not demonstrate any particular
scientific expertise that can be assessed for reliability or that
would ultimately assist the finder of fact. The Report merely
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summarizes the evidence of record, without providing any
specialized analysis to support its conclusions.
In according the district court the deference to which its
challenged ruling is entitled, we are therefore unable to disturb
its exclusion of Dr. Butler’s opinions. We thus affirm that aspect
of this appeal, but authorize the court to revisit it on remand —
if it sees fit so to do — in light of this opinion.
IV.
Pursuant to the foregoing, we affirm the district court’s
ruling on the expert witness, reverse its ruling on the MSHA
Report, vacate the summary judgment award, and remand for such
further proceedings as may be appropriate.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED
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