*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60803

 

BETTYE MAXWELL,

Plaintiff-Appellant,

versus

FORD MOTOR CO., ET AL.,

Defendants,

FORD MOTOR COMPANY,

Defendant-Appellee.

 

Appeals from the United States District Court for

the Northern District of Mississippi

(USDC No. 2:02-cv-308)

_________________________________________________________

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*1
Page 2

We affirm the judgment of the district court for the following reasons:

1. The door latch theory conflicts with Appellant’s pleading and prior claim

concerning laminated and tempered door glass. The scheduling order required all 

amendments to be served by May 3, 2003 and required Appellant to designate 

witnesses by September 22, 2003. Appellant’s counsel requested production of 

door latch documents in January 2004. However, Appellant did not move to 

compel this production, or in any other way bring the door latch theory to the 

attention of the district court, prior to the motion for late designation of experts in 

May 2004. District courts consider four factors in determining whether the 

testimony of a late-designated expert witness should be permitted: 1) the 

explanation for the failure to identify the witness; 2) the importance of the 

testimony; 3) potential prejudice in allowing the testimony; and 4) the availability 

of a continuance to cure such prejudice. Hamburger v. State Farm Mut. Auto. 

Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). Appellant had notice of the 

alternative theory of defective door latches for at least four months before filing 

its motion. Late designation would have required Appellee to defend against a 

new theory of recovery without benefit of full discovery. For these reasons, the 

district court did not abuse its discretion in denying the late designation. The 

district court also held that if Appellee introduced direct testimony regarding a 

door latch, Appellant could use door latch evidence on rebuttal. However, 

Appellee did not introduce door latch evidence. The district court did not abuse 
Page 3

its discretion in excluding the door latch evidence.

2. Trial judges enjoy “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, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238, 

252 (1999). It is not necessary for all Daubert factors to be addressed. Plaintiff 

was allowed to present full expert testimony supporting the claim of defective 

glass. In addition, the district court articulated concerns that Phillips was no 

longer an objective expert witness. The district court did not abuse its discretion 

in excluding Donald Phillips’ expert testimony.

3. Appellant did not seek review of the Magistrate Judge’s decision excluding 

discovery concerning vehicles manufactured by Volvo. Appellant’s briefs do not 

cite any authority for the proposition that otherwise admissible evidence should be

excluded on the basis of an unreviewed discovery order. The district court did not 

abuse its discretion in allowing Appellee to submit evidence in support of its 

state-of-the-art defense.

4. The jury received a specific instruction to focus on the alleged defects in the Ford 

truck and the relationship of these defects to Maxwell’s injuries, rather than what 

caused the truck to leave the roadway. Appellant was not prejudiced by 

comments concerning the distance from the Maxwell home to the casino and 

accident site, the $500 cash on Maxwell’s body, or the condition of his cell phone.

5. Federal Rule of Evidence 803(8)(C) provides a hearsay exception for public 
Page 4

records and reports including “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.” Appellant objected that 

Appellee failed to carry its burden of showing that the NHTSA report was 

trustworthy. To the contrary, however, Appellant bore the burden of proving that 

the NHTSA report was untrustworthy. Moss v. Ole South Real Estate, Inc., 933 

F.2d 1300, 1305 (5th Cir. 1991) (“In light of the presumption of admissibility, the 

party opposing the admission of the report must prove the report’s 

untrustworthiness.”). “Opinions and conclusions, as well as facts, are covered by 

Rule 803(8)(C).” Id. The district court did not abuse its discretion in allowing 

the NHTSA report.

6. Experts may rely on facts that are otherwise inadmissible if of a type 

reasonably relied upon by experts in the particular field. FED. R. EVID. 703; 

Marcel v. Placid Oil Co., 11 F.3d 563, 567 n.6 (5th Cir. 1994). Trial courts 

“should defer to the expert’s opinion of what data they find reasonably reliable.” 

Peteet v. Dow Chemical Co., 868 F.2d 1428, 1432 (5th Cir. 1989). Appellee’s 

expert, Robert Rucoba, testified that he both consults and relies on statistics from 

the federal government. The district court did not abuse its discretion in 

allowing Appellee’s expert to testify on the basis of this statistical evidence.

Affirmed.