PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CINDY ROE, 

 Plaintiff - Appellant. 

v. 

FCA US LLC, f/k/a Chrysler Group LLC, 

f/k/a Chrysler LLC, f/k/a Daimler Chrysler, 

 Defendant - Appellee. 

No. 21-6073 

_________________________________ 

Appeal from the United States District Court 

for the Western District of Oklahoma 

(D.C. No. 5:19-CV-00167-SLP)

_________________________________ 

Rosalind B. Bienvenu, Durham, Pittard & Spalding, LLP, Santa Fe, New Mexico (Caren 

I. Friedman and Justin R. Kaufman, Durham, Pittard & Spalding, LLP, Santa Fe, New 

Mexico, and David T. Bright, Sico Hoelscher Harris, Corpus Christi, Texas, with her on 

the briefs), for Plaintiff-Appellant. 

Ryan C. Bueche, Germer Beaman, & Brown, PLLC, Austin, Texas (Robert G. Sonnier, 

Germer Beaman & Brown, PLLC, Austin, Texas, and Heather L. Hintz and Thomas G. 

Wolfe, Phillips Murrah, P.C., Oklahoma City, Oklahoma, with him on the brief), for 

Defendant-Appellee. 

_________________________________ 

Before MATHESON, EBEL, and BACHARACH, Circuit Judges. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 2, 2022

Christopher M. Wolpert 

Clerk of Court

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Plaintiff-Appellant Cindy Roe suffered serious injuries after her Jeep Grand 

Cherokee unexpectedly backed over her. After the accident, she filed a lawsuit in 

federal district court against the manufacturer of her vehicle, FCA US (“FCA”), 

alleging that the shifter assembly in her vehicle had been defectively designed in that 

it could be perched into a “false-park” position where the vehicle appears to be in 

park, but is actually in an unstable position that can slip into reverse. Roe further 

alleged that this defect caused her injuries. To demonstrate this theory, she 

designated two experts, Steven Meyer and Peter Sullivan. After testing and analysis 

of the subject vehicle, the experts concluded that the vehicle was in this defective 

false-park position when Roe exited the vehicle, and the vehicle then slipped into 

reverse and backed over her, causing her injuries. 

FCA moved to exclude Roe’s experts as unreliable on the issue of causation, 

among other objections. FCA additionally moved for summary judgement because 

Roe could not create a material issue of fact on the essential element of causation 

without her experts’ testimony. The district court agreed with FCA, excluded the 

experts, and granted summary judgment for FCA. Notably, the district court found 

that the experts’ theory on causation was unreliable because they failed to 

demonstrate that the shifter could remain in false park for sufficient time for Roe to 

move behind the vehicle and then slip into reverse without manual assistance. Roe 

now appeals, arguing that the district court abused its discretion in excluding Meyer 

and Sullivan’s testimony. Exercising jurisdiction under 28 U.S.C. § 1291, we 

AFFIRM. 

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FACTUAL BACKGROUND 

A. The Accident 

On February 26, 2017, Roe was driving her 2004 Jeep Grand Cherokee on a 

rural property near Cushing, Oklahoma. After driving through a gate on the property, 

she stopped and exited the car to close the gate behind the rear of the car. Tragically, 

her Jeep suddenly moved backwards and rolled over her. Roe was eventually found 

by the vehicle near the gate having suffered severe injuries including a traumatic 

brain injury. 

Roe filed suit in federal district court against FCA, the manufacturer of her 

vehicle, for product liability, negligence, and failure to warn, alleging that her vehicle 

“improperly and unexpectedly jumped into reverse on its own after she had shifted it 

into park and exited the vehicle, running over her and causing traumatic and 

permanent injuries.” Aplt. App. at 12. Roe claimed that the shifter assembly of the 

subject vehicle was defectively designed in that it could be shifted into a “false-park” 

position where the shifter appears to be in park, but is actually in an unstable position 

where the shifter can self-engage into reverse. Roe alleged this defective position 

allowed her Jeep to slip into reverse and caused her injuries. 

B. Roe’s Experts 

To support her theory, Roe designated two experts, Steven Meyer and Peter 

Sullivan to testify as to “automotive defects, engineering issues, the automotive 

components involved and their functioning; the ‘false park’, ‘park to reverse’, or 

‘powered rollaway’ defect, the history of this defect in Chrysler and other vehicles, 

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and other similar incidents; applicable regulations, industry standards, and 

investigations; investigation and testing; and the causes of Cindy Roe’s injuries.” Id. 

at 67. 

i. Steven Meyer 

Steven Meyer is a mechanical engineer specializing in vehicular accident 

reconstruction; mechanical and structural failure analysis; and system design, 

analysis, and testing. In his report, Meyer surmised two potential hypotheses for how 

the accident could have occurred: 1) Roe shifted the vehicle into a false-park position 

before exiting and moving behind the vehicle when it then slipped into reverse and 

backed over her, and 2) Roe shifted the vehicle into reverse before exiting and 

moving behind the vehicle when it backed over her. After testing on Roe’s Jeep, an 

exemplar 2004 Jeep Grand Cherokee, and an exemplar shifter, Meyer determined that 

the second scenario was impossible and that the first scenario had a reasonable 

scientific probability of being correct. 

First, Meyer inspected and tested the subject vehicle on a flat concrete surface 

at his company’s facility. In inspecting and testing the gear shifter assembly, Meyer 

was able to “easily” manipulate the shifter lever to achieve the “perched” false-park 

condition. Id. at 120. He then performed testing on two scenarios. In the first, he 

shifted the vehicle from drive to reverse. After releasing the brake pedal, “the vehicle 

immediately began to move/accelerate” on the flat concrete surface. Id. In the 

second scenario, Meyer manually perched the vehicle in the false-park position. The 

“shifter was then nudged rearward, resulting in the transmission to engage the reverse 

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gear. Once the shifter was nudged rearward, the vehicle began to move rearward 

after a slight hesitation.” Id. at 120–21. Meyer then recorded the amount of force 

necessary to move the shift lever from the false-park position to reverse, which 

ranged between 13 and 26 newtons.1

 

Next, Meyer performed the same evaluation and testing a second time with an 

exemplar vehicle at the accident scene and repeated it a third time at his facility. He 

noted that the “[v]ehicle response was similar with little to no difference due to the 

ground condition or terrain.” Id. at 123. He also noted that “by leaving the vehicle 

in reverse, the driver could not exit the vehicle as the vehicle moved too fast for the 

driver to get out of the way of the moving open door,” effectively ruling out his 

second hypothesis. Id. at 126. He did not state in his report whether he achieved test 

results indicating there was sufficient time to exit the vehicle when the shifter was 

left perched in false park. 

At Meyer’s deposition, he estimated that it would take at least seven to eight 

seconds to exit the Jeep and walk behind it. While he referenced several instances of 

the vehicles slipping on their own from false park to reverse, he could not recall if 

the shifter ever slipped into reverse after staying perched for precisely seven to eight 

seconds. Meyer could recall one test where the vehicle stayed perched in the false1

 A newton is the “absolute unit of force in the International System of Units 

(SI units), abbreviated N. It is defined as that force necessary to provide a mass of 

one kilogram with an acceleration of one metre per second per second.” 

Encyclopedia Britannica, newton unit of measurement, 

https://www.britannica.com/science/newton-unit-of-measurement. 

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park position for over four minutes, but in this test, he manually nudged the shifter 

into reverse from false park. Meyer additionally discussed a National Highway 

Traffic Safety Administration (NHTSA) investigation into a “park-to-reverse” defect 

in Jeep Grand Cherokees.2

Meyer concluded in his reconstruction of the accident that a flat spot between 

park and reverse in the shifter assembly is a design defect that allowed Roe to 

unknowingly perch the subject vehicle in false park instead of park. Meyer surmised 

that when she exited the vehicle and moved behind it, the shifter lever slipped into 

reverse and the vehicle backed over her. Meyer also concluded that FCA could have 

feasibly installed an out-of-park alarm that would have warned Roe and others of this 

unsafe condition. 

ii. Peter Sullivan 

Roe’s other expert was Peter Sullivan. Sullivan is an automotive specialist and 

master service technician with specialized experience as a motor vehicle systems 

performance analyst. Sullivan has evaluated and written on shift systems throughout 

his career, including numerous park-to-reverse incidents. 

Sullivan created an exemplar demonstrative aid of the subject vehicle shifter 

and transmission, on which he was able to achieve the false-park position. Sullivan 

relied in large part on Meyer’s investigation and testing as to the ability to achieve 

2

 The parties argue about the relevance of this report. FCA claims that it is 

irrelevant because the vehicles in the report use a different transmission. While Roe 

agrees in her Reply Brief that they are not the same, she argues that they function 

“largely the same.” R. Br. at 5. 

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false park and the timing of the vehicle’s backward movement when the vehicle is 

placed in reverse versus when the vehicle slips into reverse from false park. He also 

discussed five forces that may cause the shift lever to move from false park to 

reverse. These included: 

[1] [S]light vibrations, [2] movements, [3] impacts, or [4] weight 

transfers (such as a passenger opening or closing a door upon exiting the 

vehicle or opening or closing the rear lift/tail gate, or engine vibration, 

A/C compressor engagement, etc.), or [5] the gradual filling of the 

transmission coupling , [sic] ‘accumulator’, with transmission fluid as a 

result of fluid bypass through a partially open manual valve. 

Id. at 206–207. Sullivan also relied on the NHTSA report on Jeep Grand 

Cherokees. 

Like Meyer, Sullivan concluded that Roe left her Jeep in a defective false park 

rather than reverse when she exited the vehicle. He asserted that the Jeep then 

suddenly and without warning self-engaged into reverse, resulting in her injuries. 

Sullivan also opined that an out-of-park alarm could have been implemented to 

provide a warning. 

C. The district court’s decision 

After the expert reports and depositions had been submitted, FCA filed a 

motion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to 

exclude the two experts and also for summary judgment. FCA contended that Meyer 

and Sullivan were both unqualified to testify as to a design defect in the shifter 

assembly, to opine as to the underlying accident, and to testify as to an out-of-park 

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alarm. Further, FCA contended that the methods used by both experts to conclude 

the alleged defect caused the accident were unreliable. 

The district court granted the motion to exclude both experts and entered 

summary judgment for FCA. While the district court found that Meyer was qualified 

to opine as to the events of the accident and causation, he lacked the expertise to be 

qualified to testify as to a design defect in a shifter assembly. The court did find, 

however, that Sullivan was qualified as to the defective design of the shifter assembly 

and to opine on the events of the accident. The court found both experts to be 

unqualified and unreliable to testify as to the effectiveness of out-of-park alarms. 

As to causation, the court found that both experts used unreliable methods due 

to an analytical gap in their theory about how the defective design caused the 

plaintiff’s injury. Specifically, the court found that they had not sufficiently shown 

that the shifter could self-engage into reverse from the false-park position after 

enough time for Roe to exit the vehicle and move behind it. Further, the court found 

that the experts had not shown or explained that the forces that might cause the lever 

to slip into reverse were present in the subject vehicle. Based upon its rulings on 

FCA’s Daubert motion, the district court also granted FCA’s motion for summary 

judgment because Roe failed “to show a genuine dispute over whether the alleged 

defects (the Jeep’s self-shift into reverse and/or lack of an out-of-park alarm) caused 

Plaintiff’s injuries.”3

 Id. at 1283–85. 

3

 Under Oklahoma law, a product liability claim requires a plaintiff to prove 

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Roe now appeals, challenging the exclusion of her experts and the resulting 

summary judgment order. She raises three issues, arguing that the district court erred 

in 1) excluding Meyer and Sullivan’s testimony as unreliable due to analytical gaps 

in their theory of causation, 2) determining that Meyer was not qualified to testify on 

the defective design of the subject vehicle’s shifter assembly, and 3) determining that 

Meyer and Sullivan were not qualified or reliable to testify on the installation of an 

out-of-park alarm. The parties agree that if Roe’s experts were properly excluded, 

summary judgment must be granted in FCA’s favor. 

DISCUSSION 

A. The district court did not abuse its discretion in excluding Meyer and 

Sullivan’s testimony 

Roe contends that the district court abused its discretion in finding her experts 

unreliable on causation. Importantly, “[w]e review the district court’s application of 

Daubert to exclude expert testimony for abuse of discretion.” Truck Ins. Exch. v. 

MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). And we review de novo 

whether the district court applied the proper legal standard under Daubert. Goebel v. 

Denver and Rio Grande Western R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). The 

district court is afforded substantial deference in its application of Daubert, and we 

will only disturb the district court’s decision if we have “a definite and firm 

that the alleged defect: (1) caused the injury in question, (2) existed at the time it left 

the manufacturer’s control, and (3) made the product unreasonably dangerous. 

Braswell v. Cincinnati Inc., 731 F.3d 1081, 1085 (10th Cir. 2013) (citing Kirkland v. 

Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974)). 

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conviction that the lower court made a clear error of judgment or exceeded the 

bounds of permissible choice in the circumstances.” Truck Ins. Exch., 360 F.3d 

at 1210 (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir. 1986)). 

We conclude that the district court did not abuse its broad and substantial discretion 

in excluding this testimony as unreliable because the experts left an analytical gap in 

their theory of causation by failing to show a reasonable probability that there was 

sufficient time for Roe to get behind the vehicle after placing it into false park before 

it would slip into reverse without further human nudging. 

Under Federal Rule of Evidence 702, the district court has an important 

gatekeeping function with regard to the admissibility of expert opinions to ensure that 

all evidence is both relevant and reliable. See generally Daubert, 509 U.S. at 597. In 

order to determine whether Meyer and Sullivan’s expert opinions were admissible, 

the district court had to undergo a two-step analysis. First, the court had to determine 

whether the experts were qualified by “knowledge, skill, experience, training, or 

education” to render an opinion. See Fed. R. Evid. 702. Second, if they were so 

qualified, the court had to determine whether their opinions were “reliable” under the 

principles set forth under Daubert, 509 U.S. 579, and Kumho Tire Co., Ltd. v. 

Carmichael, 526 U.S. 137 (1999). The reliability inquiry asks whether the 

methodology employed by an expert is valid—that is, whether it is based on 

sufficient data, sound methods, and the facts of the case. See Kumho Tire, 526 U.S. 

at 152. The inquiry does not typically question “the quality of the data used in 

applying the methodology or the conclusions produced.” In re Urethane Antitrust 

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Litig., 768 F.3d 1245, 1263 (10th Cir. 2014). However, “nothing in either Daubert or 

the Federal Rules of Evidence requires a district court to admit opinion evidence that 

is connected to existing data only by the ipse dixit of the expert. A court may 

conclude that there is simply too great an analytical gap between the data and the 

opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). 

The district court here found the experts’ testimony unreliable due to such an 

analytical gap in the experts’ theory because the experts had not demonstrated in 

their testing that a shifter could self-engage from false park to reverse after the seven 

to eight seconds needed for Roe to exit and move behind the vehicle.4

 Aplt. App. 

at 1272. Meyer’s report only referenced instances in testing where he manually 

shifted the car from false park to reverse and measured the force needed, and his 

deposition indicated that he could not remember if he had a result where the shifter 

self-engaged into reverse after the requisite time. While Sullivan listed some 

potential forces that could cause a shifter to slip from false park into reverse (slight 

vibrations, movements, impacts, or weight transfers, etc.), the experts did not address 

which, if any, of these may have been present in the subject vehicle or whether these 

4

 The district court found it unclear whether the experts had shown that the 

shifter could slip on its own at all. Aplt. App. at 1272. There are several instances in 

Meyer’s deposition where he refers to the shifter slipping on its own without a 

manual nudge. See, e.g., Aplt. App. at 1028 (“In some cases I perch it, I know its 

perched, and I go to let go, and by the time I move my hand out of the way, it’s 

moving already.”). But that scenario assumes an almost immediate shifting into 

reverse after the driver lifted his or her hand from the level. By Roe’s own 

admission, that is not what happened here. 

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forces were capable of generating the number of Newtons in the proper direction 

needed to cause the shifter to self-slip into reverse. 

Roe argues that the district court abused its discretion for essentially two 

reasons. First, Roe believes no such analytical gap exists because the experts did in 

fact demonstrate test results showing that the lever could slip into reverse after 

sufficient time. Second, Roe believes the district court impermissibly required the 

experts to test their theory. We disagree as to both reasons. 

Roe argues that no such analytical gaps exist in her experts’ theory as they did 

in fact show that a shifter could slip into reverse from false park without a manual 

nudge after sufficient time. This is simply not supported by the record before us. 

Meyer does not mention any such results in his report. At his deposition, Meyer 

admitted that he could not recall a result of the shifter self-slipping into reverse after 

more than seven to eight seconds; instead, he merely stated that the video 

documenting his tests could be used to determine exact times. The video is not in the 

record before us, but Roe does cite a document purporting to summarize the video 

that was attached as an exhibit to her reply brief below. However, a document that 

was not provided in Meyer’s report or referenced in his deposition, and which 

summarizes a video that is not in the record, does not provide a basis for us to 

conclude that the district court erred in finding that these results did not actually 

occur. Indeed, it is unclear who created this document or if it accurately describes 

the video. Roe points to one reference in Meyer’s deposition to a result where the 

shifter remained perched in false park for four minutes, but Meyer admitted that this 

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four-minute result ended with a manual nudge into reverse, rather than the shifter 

slipping on its own. Aplt. App. at 1028. Lastly, Roe points to Sullivan’s report, 

which states that Meyer’s tests “result[ed] in various effects, including several 

instances where the transmission would remain unperturbed in a ‘False Park’ for an 

extended period of time before eventually slipping into Reverse and accelerating 

rearwards.” Id. at 584 (citing Aplt. App. at 178). But Meyer’s report and deposition 

does not support Sullivan’s statement. Thus, the district court’s conclusion that the 

experts failed to document any test results showing a shifter could self-slip into 

reverse after being perched for longer than seven to eight seconds is supported by the 

record.5

Roe’s next contention is that the district court applied the wrong legal standard 

under Daubert by requiring testing. Aplt. Br. at 34 (citing Werth v. Makita Elec. 

Works, Ltd., 950 F.2d 643, 653 (10th Cir. 1991) (rejecting as an improper standard 

an “erroneous, per se rule requiring independent testing” as “a precondition to the 

expert testimony”). FCA argues that the district court was free to require testing 

because we have held previously that it is acceptable for the district court to place a 

heavy emphasis on testing when the experts “rel[y] on novel theories” and “the basis 

for [their] opinion is subject to debate.” Heer v. Costco Wholesale Corp., 589 

F. App’x 854, 862 (10th Cir. 2014) (unpublished) (citing Bitler v. A.O. Smith Corp., 

400 F.3d 1227, 1235–36 (10th Cir. 2004)). Bitler specifically defined “novel 

5

 Indeed, Roe’s counsel at oral argument, contrary to briefing, conceded that 

Meyer had failed to demonstrate this timing in testing. (Oral Arg. (5:24–6:24)). 

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theories” as theories “that modif[y] otherwise well-established knowledge about [a] 

regularly occurring phenomenon.” Bitler, 400 F.3d at 1235–36. But the theory 

proposed by the experts here does not modify well-established knowledge and seems 

to depend largely on well-established principles of physics. Thus, a requirement of 

independent testing could not be upheld on this basis. 

However, the district court did not rely on Bitler for such a proposition or 

claim that testing was required because the experts presented a novel theory. Instead, 

the district court excluded their testimony because the experts had a self-contained 

analytical gap in their theory, relying almost entirely on testing to support their 

theory and yet failing to show that they actually found that a shifter in false park 

could slip into reverse on its own after being perched for sufficient time for someone 

to exit the vehicle and move behind it. Aplt. App. 1271–1273. While Meyer 

measured the force necessary for the shifter to slip to reverse and Sullivan noted 

several potential forces that could have nudged the shifter, they failed to specify that 

the hypothetical forces could actually exert the requisite number of newtons in the 

proper direction to cause the shifter to engage into reverse or that such forces were 

present in Roe’s car at the time of the accident. Without this testing or additional 

explanation, it is totally unsupported why the experts believe the shifter could shift 

on its own into reverse after remaining in false park for sufficient time. 

Roe argues that making any specific demonstration as to the timing or the 

exact forces was not required because her experts used a reasoning-to-the-bestinference approach where they had two potential hypotheses as to the cause of the 

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accident and successfully eliminated one of them. See Bitler, 400 F.3d at 1236–37 

(permitting experts to engage in a process-of-elimination approach to the cause of an 

injury). Meyer did indicate that his testing had ruled out that Roe had placed the 

vehicle directly into reverse because the test vehicles moved too quickly once the 

brake pedal was released into reverse. Aplt. App. at 126. But Bitler requires more 

for this approach than merely eliminating one of the two hypotheses postulated by the 

expert: “more than mere possibility, an inference to the best explanation for the cause 

of an accident must eliminate other possible sources as highly improbable, and must 

demonstrate that the cause identified is highly probable.” Bitler, 400 F.3d at1238 

(emphasis added). To demonstrate this, “there must be some independent evidence 

that the cause identified is of the type that could have been the cause.” Id. at 1237. 

Because the experts here failed to use any additional testing of their own or by 

others or other independent evidence to demonstrate that the shifter could remain in a 

false-park position and slip on its own into reverse after sufficient lag in time, they 

have not demonstrated that their second hypothesis was even possible—let alone 

highly probable. Indeed, the reliability of Roe’s experts seems questionable when the 

experts would rule out one hypothesis (e.g., that Roe herself placed the vehicle into 

reverse before exiting the vehicle) as unviable based on infeasibility in testing, but 

adopt the only other hypothesis they selected without using the same testing 

procedures to demonstrate that the other hypothesis is viable and indeed was “highly 

probable.” 

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Roe’s experts did not put on any evidence even that Sullivan’s list of 

hypothetical forces in the vehicle could produce the requisite number of newtons of 

force in the proper direction needed to cause the shifter to slip into reverse as 

documented by Meyer or that such forces were highly likely to have been present in 

Roe’s vehicle at the time of this event. See Hoffman v. Ford Motor Co., 493 F. 

App’x 962, 976 (10th Cir. 2012) (unpublished) (excluding an expert who never 

showed that the force necessary to trigger a defect seatbelt was present in the subject 

vehicle). 

As a result, the district court did not abuse its broad discretion in excluding the 

experts’ testimony on causation as unreliable. 

B. It is unnecessary to resolve the remaining issues on appeal. 

Roe raises two additional issues. Because these issues do not affect the district 

court’s decision to grant summary judgment in favor of FCA, we need not address 

them here.6

 Roe argues that the district court abused its discretion in finding Meyer 

unqualified to testify regarding defective design. However, summary judgment 

below did not rely on this holding because the district court found Sullivan was 

qualified to testify as to defective design. Roe also argues that the district court 

abused its discretion in determining that Meyer and Sullivan were not qualified or 

reliable to testify on the installation of an out-of-park alarm. The feasibility of an 

out-of-park alarm is an issue of curing the potential defect that likewise need not be 

6

 We also decline to consider FCA’s alternative grounds to support the 

exclusion of the experts. 

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addressed when there is no evidence supporting that the asserted defect could cause 

the accident in the first place. Even if we were to agree with Roe on these issues, we 

would still have to affirm summary judgment in favor of FCA because Roe has no 

evidence to create a triable issue of fact on whether the potential defect caused her 

injury. 

CONCLUSION 

For the above reasons, we AFFIRM the district court’s grant of FCA’s motion 

for summary judgment. 

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