F I L E D

United States Court of Appeals

Tenth Circuit

FEB 4 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK MILLER, individually and as

administrator of the estate of Matthew

Miller, deceased; CHERYL MILLER,

individually,

Plaintiffs - Appellants,

v. No. 02-3092

PFIZER, INC., Roerig Division,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 99-CV-2326-KHV)

Arnold Anderson Vickery, Houston, Texas (James E. Fitzgerald, Cheyenne,

Wyoming, and Earl Landers Vickery, Austin, Texas, with him on the briefs), for

Plaintiffs - Appellants.

Malcolm E. Wheeler (James E. Hooper, Amy L. Padden and Craig R. May, with

him on the brief), of Wheeler Trigg & Kennedy, P.C., Denver, Colorado, for

Defendant - Appellee.

Before EBEL , ANDERSON , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.
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Matthew Miller died at the age of thirteen, one week after beginning to take

sertraline, an antidepressant drug marketed as “Zoloft.” His parents sued Pfizer,

the manufacturer of Zoloft, for wrongful death, claiming that Zoloft caused

Matthew to commit suicide. 

The Millers hired Dr. David Healy, who proposed to testify that Zoloft may

cause suicide and had in fact caused Matthew to commit suicide. Applying

standards outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), and its progeny for determining whether expert testimony is

admissible under Federal Rule of Evidence 702, the district court ruled that

Dr. Healy could not testify. This left the Millers with no expert to provide

evidence of causation. Accordingly, the court granted summary judgment to

Pfizer. 

The Millers appeal. Their principal claim is that the court did not give

them a fair opportunity to make a proper record supporting Dr. Healy’s

conclusions. At the outset of discovery the Millers had requested the court to

appoint independent experts to evaluate the opinions of the parties’ retained

experts. The district court did so only after completion of discovery. The courtappointed experts ultimately advised the court that Dr. Healy’s analysis was
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unscientific. The Millers now argue that the district court improperly deprived

Dr. Healy of the opportunity to respond to concerns expressed by the independent

experts. If the district court had indeed deprived Dr. Healy of that opportunity,

the Millers might prevail on a claim of abuse of discretion. Our review of the

record, however, establishes that the district court acted with patience and

fairness. Most, if not all, of the concerns expressed by the independent experts

had previously been expressed by Pfizer or the district court. The Millers have

failed to identify any concern to which they lacked an adequate opportunity to

respond. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 

I. BACKGROUND

Dr. Douglas Geenens diagnosed 13-year-old Matthew Miller with

depression and prescribed Zoloft on July 21, 1997. Matthew hanged himself one

week later. The Millers filed a wrongful death action against Pfizer in the

United States District Court for the District of Kansas on July 27, 1999, basing

federal jurisdiction on diversity of citizenship, see 28 U.S.C. § 1332. Their

expert witness on causation has been Dr. David Healy, a

neuropsychopharmacologist. 

Zoloft belongs to a class of drugs called selective serotonin reuptake

inhibitors (SSRIs). Dr. Healy asserts that SSRIs cause akathisia, a syndrome

involving motor restlessness, which in turn causes some patients to commit
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suicide. In forming his opinion Dr. Healy relied on various articles and studies

involving Zoloft and other SSRIs. Of these studies, he placed the most emphasis

on his own healthy-volunteer study, two “challenge-dechallenge-rechallenge”

reports (in which subjects were given the drug, then not given it, and then given it

again), and a study conducted by Dr. Ian Hindmarch (although he ultimately

decided not to rely on the Hindmarch study). He also relied on depositions from

this case; testimony, depositions, and exhibits from other cases; Pfizer documents;

an application of what are known as Koch’s postulates (which are employed to

evaluate causality); and a meta-analysis he performed using Pfizer data. 

Shortly after bringing suit, the Millers submitted a preliminary report

prepared by Dr. Healy. Anticipating that Dr. Healy’s views might be challenged

by Pfizer, the Millers, in an effort to obtain validation of Dr. Healy’s opinions

from an outside source, filed a motion to appoint independent experts on

October 21, 1999. 

The court’s first scheduling order, entered November 18, 1999, required the

Millers to provide Pfizer with their Rule 26 expert disclosures no later than

December 28, 1999. The scheduling order also set a deadline of February 11,

2000, for the Millers to provide Rule 26 disclosures pertaining to rebuttal experts. 

On January 10, 2000, Pfizer filed a “Motion to Limit Revision, Amendment or

Supplementation of Expert Opinions Disclosed Pursuant to Rule 26(a)(2).” The
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district court sustained this motion in part on January 28, 2000. It ruled that the

Millers could “serve a supplemental final expert report on or before [March 7,

2000],” and final rebuttal expert disclosures by March 28, 2000. Dist. Ct. R.,

Doc. 115. 

On March 27-28, 2000, Dr. Healy was deposed for ten hours. During the

following two weeks the Millers provided Pfizer with supplemental responses to

Pfizer’s requests for admission. The responses contained an explanation of a

statistical analysis performed by Dr. Healy. Objecting to the responses as

untimely, Pfizer filed on April 17, 2000, an “Emergency Motion to Bar Plaintiffs’

Expert, Dr. Healy, from Supplementing His Opinions and to Strike and Deem

Admitted Plaintiffs’ Second Supplemental Responses to First Requests for

Admissions.” Dist. Ct. R., Doc. # 195. The district court denied this motion on

April 18, 2000, after observing that “[t]he newly disclosed information does not

appear to substantially depart from information which has been previously

disclosed.” Dist. Ct. R., Doc. # 199 at 2. But it reserved its final ruling on the

issue until it considered the parties’ dispositive motions and stated that it “may

well strike Dr. Healy’s information because of the late hour at which it has been

produced.” Id. at 2-3. 

Also on April 18, 2000, Pfizer filed a motion to exclude Dr. Healy’s

testimony under Daubert. Proceedings were delayed, however, when Pfizer’s
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attorney was seriously injured in an accident on June 2, 2000. The district court

continued the trial date from July 18 to September 19, 2000. Then, on August 18,

2000, the district court issued an order staying all proceedings and directing the

parties to show cause why independent expert witnesses should not be appointed. 

Ultimately, on April 24, 2001, the court entered an order appointing two

independent experts, John Concato, M.D., M.S., M.P.H. and John M. Davis, M.D. 

In its order appointing the experts, the district court identified the

“fundamental question” on which it wanted advice: “whether Dr. Healy’s

methodology, and his application of it in this case, constitute valid, scientifically

reliable reasoning in support of his opinions that Zoloft causes suicide (general

causation) and that Zoloft caused Matthew Miller’s suicide (specific causation).” 

Aplt. App. at 359. The order declared that “the parties [had been] afforded full

opportunity to adduce evidence in support of their respective positions.” Id. It

then stated that the independent experts would be provided “(1) a copy of the

parties’ previously filed briefs pertaining to the motion to exclude Dr. Healy’s

testimony; (2) a copy of all exhibits cited or referred to in those briefs . . . ; (3) a

copy of Pfizer’s July 1999 Report to the Irish Medicines Board; (4) the letter of

January 2000 from the Irish Medicines Board to Pfizer regarding the report; and

(5) Dr. Healy’s Declaration of August, 2000, which addresses the concerns which

the Court articulated in its order to show cause.” Id. at 360. The materials
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provided to the independent experts included various expressions of Dr. Healy’s

opinions as they had evolved during the course of the litigation: reports dated

September 22 and December 10, 1999; a Letter Report dated March 6, 2000;

deposition testimony on March 27-28, 2000; responses filed in April 2000 to

Pfizer’s requests for admission; and declarations dated May 9 and August 31,

2000. The district court also encouraged the experts “to examine whatever

medical or scientific literature is necessary to render their professional opinions.” 

Aplt. App. at 361. 

The independent experts submitted a report on September 5, 2001, that

generally discredits Dr. Healy’s theory and methodology. In response, the Millers

filed a “Consolidated Statement of Facts” on October 23, 2001. Id. at 389. The

court described it as a “45-page brief contain[ing] 145 separately numbered

statements, 119 of which are presented for the first time in this document.” Dist.

Ct. Order (Nov. 16, 2001), Aplt. App. at 440. The district court granted Pfizer’s

motion to strike the statement on the grounds that it was not associated with any

pending motion (or constituted an improper attempt by the Millers to supplement

their summary-judgment briefing), did not comply with procedural rules, and was

untimely. 

On November 19-20, 2001, the district court held a hearing on the motion

to exclude Dr. Healy’s testimony as inadmissible under Daubert. The court
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allowed Dr. Healy to engage in a dialogue with the independent experts but,

apparently relying on Federal Rule of Civil Procedure 26, restricted the

information on which his responses to their questions could be based to those

materials that had previously been supplied to the independent experts. See Tr. of

Daubert Hr’g, Aplt. App. at 592. The court explained: 

“[U]nder our federal rules which govern pretrial proceedings . . .

there’s a time set as part of the discovery process where each expert

is required to produce a written report that states all of the opinions

that . . . [the] expert will offer at the trial, and also the basis for the

opinions. That has to be done by a certain time prior to trial. . . . 

. . . [T]o the extent that Dr. Healy had information and could have

made calculations by that deadline, he was required to do that . . . .” 

Id. In so limiting Dr. Healy, the court characterized his testimony as a “moving

target” and declared that “the time for his expert opinions to be formulated and

expressed and communicated to the other side is passed.” Id. at 546. The Millers

complain in particular that this ruling precluded Dr. Healy from presenting at the

hearing some power-point slides that they contend would have addressed the

concerns of the court-appointed experts. 

Following the Daubert hearing the district court, largely adopting the views

expressed by the independent experts, excluded Dr. Healy’s testimony. The

district court considered four factors identified by the Supreme Court in

Daubert as relevant to the determination of whether a proffered expert’s proposed

testimony reflects scientific knowledge that will assist the trier of fact to resolve a
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fact in issue: (1) whether the scientific theory or technique “can (and has been)

tested,” (2) “whether the theory or technique has been subjected to peer review

and publication,” (3) “the known or potential rate of error” of the technique, and

(4) whether the methodology has attained general acceptance in the scientific

community. Daubert, 509 U.S. at 593-94. The district court concluded that with

the exception of the first factor—whether the theory can and has been tested

(which the court assumed to be satisfied)—the Daubert factors favored the

exclusion of Dr. Healy’s testimony. Miller v. Pfizer, 196 F. Supp. 2d 1062, 1072-

85 (D. Kan. 2002). Because of the thoroughness of the district court’s published

opinion, our summary of its ruling is brief. 

In analyzing the peer-review-and-publication factor, the court concluded

that although Dr. Healy had published peer-reviewed articles expressing the

theory that Zoloft causes suicide, his specific calculations of the risk of suicide

had not been subjected to peer review. Id. at 1073 & n.32. With regard to the

rate-of-error factor, the court noted several problems with Dr. Healy’s healthyvolunteer study that were identified by the independent experts: (1) the study did

not include a placebo control, (2) it involved extensive interaction between the

participants and researchers, and (3) it utilized only a small sample size. Id. at

1074. The court accordingly concluded that the study did not include controls

sufficient to demonstrate that Zoloft causes suicide in some patients. Id. at 1075. 
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Addressing the fourth Daubert factor, the court found that Dr. Healy had

not utilized a generally accepted methodology in forming his opinions. Again

referring to flaws in the design of the healthy-volunteer study, the court

determined that reliance on the study did not constitute a generally accepted

methodology for assessing any causal relationship between Zoloft and suicide. 

Id. at 1076. The court also decided that placing substantial emphasis on a few

challenge-dechallenge-rechallenge studies and case reports is not a generally

accepted methodology. Id. Because the court-appointed experts could not

confirm the calculations Dr. Healy made through his meta-analysis of Pfizer’s

data, the court likewise ruled that his use of the meta-analysis was not a generally

accepted methodology. Id. at 1078. Finally, the court decided that Dr. Healy’s

purported application of Koch’s postulates was not a generally accepted

methodology. The court concluded that Dr. Healy “misapplied, failed to satisfy,

or failed to address six of the seven postulates . . . [; and] [t]o compound this

problem, he has invented other factors and variously applied or misapplied them

in ways which make it impossible to discern what his conclusions would be if

they rested only on generally accepted methodology.” Id. at 1084. 

The district court decided to exclude Dr. Healy’s testimony on general

causation (whether Zoloft can cause suicide). It described his theory as being a

“distinctly minority position” resting on only “a handful of case reports,” and it
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characterized the “flaws in Dr. Healy’s methodology” as “glaring, overwhelming

and unexplained.” Id. at 1085. 

The district court also excluded Dr. Healy’s testimony on the issue of

specific causation (whether Zoloft caused Matthew Miller to commit suicide). 

Dr. Healy had proposed to testify “that in his opinion, based on a review of notes

by Matthew, reports by Matthew’s father, and the deposition of Matthew’s

psychiatrist, Zoloft more likely than not caused Matthew to commit suicide and

no other factor in his background or psychosocial situation could explain his

suicide.” Id. at 1085. Concerned, however, about “Dr. Healy’s reliance on preselected evidence from interested parties, to the exclusion of reliable evidence

that Matthew engaged in suicidal thoughts and behavior before he first used

Zoloft,” the court had “asked its independent experts whether selective reliance

was consistent with generally accepted methodology on the issue.” Id. at 1086. 

The independent experts informed the court that such selective reliance was not a

generally accepted methodology. The court then concluded that “Dr. Healy’s

testimony on specific causation does not satisfy Rule 702 because it does not

utilize sufficient facts and data and it is not the product of reliable principles and

methods.” Id. at 1087. In addition, the court noted that since it had sustained

Pfizer’s motion to exclude the testimony on general causation, “the issue of

specific causation is for all practical purposes moot.” Id. 
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Concluding that the Millers could not establish causation, the district court

granted summary judgment to Pfizer. 

II. DISCUSSION

On appeal the Millers contend that the district court (1) abused its

discretion in restricting the information made available to the independent

experts, (2) exceeded the bounds of a proper Daubert analysis when it excluded

Dr. Healy’s testimony, and (3) erred in granting summary judgment to Pfizer. 

A. Information Provided to the Independent Experts

The Millers assert that they “attempted to complete the scientific record for

the independent experts” by filing a consolidated statement of facts and by having

Dr. Healy address the independent experts’ concerns (in part by presenting at the

Daubert hearing various power-point slides depicting graphs and calculations),

but were denied that opportunity when the district court ruled that only certain

information could be provided to the experts. Aplt. Br. at 28. According to the

Millers, “‘freezing’ Dr. Healy’s opinions for nearly two years and refusing to

allow him to address concerns raised by Daubert motions filed, and independent

experts appointed, after he had submitted his report (i.e., requiring their expert to

answer questions in his report that had not yet been asked) constitutes an abuse of

discretion.” Aplt. Reply Br. at 1, & n.2. In their view, the district court erred in

applying Federal Rule of Civil Procedure 26 so as to require Dr. Healy to
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anticipate all issues that might be raised during the course of the proceedings. 

They conclude that “Pfizer did not win this case in the court below on the science. 

They won it by a clever application of a Rule 26 ‘gotcha.’ They won it by

persuading the district court that the rules of civil procedure somehow require an

expert like Dr. Healy to be prophetic.” Aplt. Br. at 43. 

Under Federal Rule of Civil Procedure 26(a)(2), “a party shall disclose to

other parties the identity of any person who may be used at trial to present . . .

[expert testimony, and the disclosure must] be accompanied by a written report

prepared and signed by the witness[,] . . . contain[ing] a complete statement of all

opinions to be expressed and the basis and reasons therefor.” Fed. R. Civ. P.

26(a)(2). Supplemental disclosures are permitted, and indeed may be required. 

Fed. R. Civ. P. 26(e). Such supplements are to be disclosed by the time pretrial

disclosures are due under Rule 26(a)(3). See Fed. R. Civ. P. 26(e). Failure to

make proper disclosures may require exclusion of the expert as a witness. Fed. R.

Civ. P. 37(c)(1). (“A party that without substantial justification fails to disclose

information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is

harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any

witness or information not so disclosed.”) 

We agree with the Millers that an expert’s initial Rule 26 report cannot

always anticipate every possible challenge to the report. Accordingly, on
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occasion it may be appropriate to permit the party using the expert to submit

supplements to the report in response to assertions by opposing experts that there

are gaps in the expert’s chain of reasoning. A court’s failure to permit such

supplementation could even constitute an abuse of discretion in some

circumstances. See Dodge v. Cotter Corp., 328 F.3d 1212, 1228 (10th Cir. 2003)

(district courts may abuse their discretion when deciding whether to admit expert

testimony “by unreasonably limiting the evidence upon which to base the

decision”). Where we depart from the Millers is that we find no abuse of

discretion here. 

To begin with, we disagree with the Millers’ assertion that the district court

improperly froze Dr. Healy’s opinions for nearly two years. On the contrary, the

Millers were given multiple opportunities to revise the opinions expressed in

Dr. Healy’s first Rule 26 report of August 13, 1999. The Millers provided Pfizer

with a second Rule 26 statement dated December 10, 1999 (which was filed on

April 18, 2000, as an exhibit to Pfizer’s pretrial motions), and a letter by

Dr. Healy dated March 6, 2000 (filed April 28, 2000, as an exhibit to Pfizer’s

motion in limine No. 9). On March 27-28, 2000, Dr. Healy was deposed for ten

hours. And in April 2000 the Millers presented a supplemental response, and then

a second supplemental response, to Pfizer’s requests for admission. Both

responses contained opinions of Dr. Healy. 
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Of particular significance are the submissions that respond to critiques of

Dr. Healy’s opinions. In April 2000 Pfizer filed a motion to exclude Dr. Healy’s

testimony. The motion alleged numerous gaps in Dr. Healy’s testimony. For

example, Pfizer asserted that Dr. Healy had “no data showing any higher rate of

suicide in Zoloft (sertraline) patients than in unmedicated (placebo) patients,” and

it criticized Dr. Healy for not conducting a statistical analysis of available data.

Aplt. App. at 254, 256. Pfizer also challenged Dr. Healy’s application of Koch’s

postulates in some detail, with its basic argument being that he “grossly

misapplied six of Koch’s seven postulates and . . . failed to apply, or even

mention, the seventh at all.” Id. at 264. In addition, Pfizer contended that case

reports “are not a reliable basis for an expert to opine on general causation.” Id.

at 273. The Millers had an opportunity to respond to Pfizer’s motion; and their

response (filed May 12, 2000) included a declaration by Dr. Healy dated May 9,

2000. 

Then, in August 2000 the district court issued its order to show cause why

it should not appoint independent experts. In the order the court expressed

concern regarding Dr. Healy’s application of Koch’s postulates. It also raised

questions about Dr. Healy’s healthy-volunteer study, noting that the parties

disagreed as to whether a placebo control is necessary and as to whether the study

could form the basis for a calculation of statistically significant relative risk. The
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Millers had an opportunity to respond to this order; and their supplemental

response (submitted on September 11, 2000), included a declaration of Dr. Healy

(dated August 31, 2000) addressing the concerns expressed in the court’s order. 

Up to that time the district court had not rejected any submissions in

support of Dr. Healy’s opinions. The independent experts were provided all these

submissions, including the declaration specifically addressing concerns expressed

in the court’s show-cause order. 

The Millers’ grievance relates to restrictions on their responses to the

report of the independent experts, issued on September 4, 2001. In general, the

report expresses unfavorable opinions regarding Dr. Healy’s analysis and theories. 

The independent experts shared the concern expressed in the court’s show-cause

order that parts of Dr. Healy’s approach to evaluating causation were not

consistent with Koch’s postulates, citing for example: “a) applying some of the

postulates solely to the association of sertraline and akathisia, or to the

association of sertraline and improvement in symptoms of depression, rather than

maintaining a focus on the association of sertraline and suicide, and b)

discounting the possibility of sertraline reducing the incidence of suicide that

would be observed without treatment.” Aplt. App. at 367. They also determined

that Dr. Healy’s “methodology for determining medical causation has not been

accepted in the relevant scientific community,” and concluded that his heavy
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reliance on case reports was not a generally accepted methodology for assessing

strength of association Id. at 370. Moreover, they “[found] the premise that

[randomized controlled trials] are undesirable for evaluating a potential sertralinesuicide association to be flawed.” Id. at 371 (internal citation omitted). Similarly

flawed, in their opinion, was Dr. Healy’s comment that suicide is “vanishingly

low” among 13-year-olds. Id. at 371-72 They also expressed concern about

Dr. Healy’s failure to rule out alternative explanations, and they stated that they

were unable to replicate Dr. Healy’s calculation of the relative risk of suicidal

acts by persons on Zoloft compared to placebo. In addition, they concluded that

Dr. Healy’s healthy-volunteer study did not produce statistically significant

results. 

In October 2001, responding to the experts’ report, the Millers attempted to

file their Consolidated Statement of Facts. The district court refused to provide

the independent experts with the statement. 

The district court held the Daubert hearing on November 19-20, 2001. 

Dr. Healy was afforded an opportunity to respond to the concerns the court

articulated in its show-cause order. He was, for example, permitted to explain his

relative-risk calculation. At the hearing the parties’ attorneys questioned

Dr. Healy and the independent experts, and the independent experts in turn were

permitted to question Dr. Healy. The district court did, however, preclude
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Dr. Healy from discussing information that had not previously been provided to

the independent experts. It also refused to let Dr. Healy give a power-point

presentation depicting various graphs and calculations. 

The Millers now argue that the district court abused its discretion in

refusing to make their Consolidated Statement of Facts available to the courtappointed experts and in limiting the information that the independent experts

could consider at the Daubert hearing. They assert that “they repeatedly implored

the court to permit them and their expert witness to provide the independent

expert with ALL of the scientific information currently available both from the

public domain and from Pfizer internal documents, to answer any questions and

concerns that the experts might have.” Aplt. Br. at 6. They further say that they

“urged that Dr. Healy be permitted to provide data and analysis from all of the

information to which he had . . . been privy, including Pfizer’s own healthy

volunteer studies, which he reviewed in November 1999.” Id. at 7. The Millers,

however, have failed to establish an abuse of discretion. 

Well before issuance of the independent experts’ report, the Millers had

been alerted to a number of concerns regarding Dr. Healy’s opinions, and they

had been afforded ample opportunity to submit Dr. Healy’s responses to those

concerns. The independent experts’ embrace of many of these concerns did not

require the court to grant Dr. Healy a further opportunity to persuade the court
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(and the independent experts) by offering new data, analyses, and theories that

could have been included in prior submissions. The orderly conduct of litigation

demands that expert opinions reach closure. Cf. Daubert, 509 U.S. at 597

(“Scientific conclusions are subject to perpetual revision. Law, on the other hand,

must resolve disputes finally and quickly.”). 

The Millers have failed to point to anything they proffered that was

responsive only to matters in the independent experts’ report that had not been

raised previously by Pfizer or the district court. In particular, the Millers have

provided no explanation how the assertedly crucial information contained in their

Consolidated Statement of Facts was responsive to concerns raised for the first

time by the independent experts. They likewise have not demonstrated why they

could not have presented this information before the independent experts

submitted their report. Nor do the Millers explain why it was unfair of the district

court to refuse to permit Dr. Healy to make the power-point presentation that he

attempted to give at the Daubert hearing. The power-point slides were based on

data that the Millers acquired before Dr. Healy’s expert report was due. The

Millers offer no reasons why Dr. Healy could not have produced his analysis long

before. The day of the hearing was a bit late to try to buttress the theory of their

case by producing a new analysis by their retained expert of long-available data. 
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Our decision today is not based on a rigid application of the rules of civil

procedure. See Fed. R. Civ. P. 1 (“These rules . . . shall be construed and

administered to secure the just, speedy, and inexpensive determination of every

action.”). Far from improperly freezing Dr. Healy’s opinions or holding him to

his first Rule 26 statement, the district court allowed Dr. Healy to express revised

opinions on numerous occasions. The district court exhibited patience and

concern for fairness to both sides. It did not abuse its discretion. 

B. Exclusion of Dr. Healy’s Testimony

“[W]e review de novo the question of whether the district court

performed its gatekeeper role and applied the proper legal standard in

admitting an expert’s testimony. We then review for abuse of

discretion the trial court’s actual application of the gatekeeper

standard in deciding whether to admit or exclude an expert’s

testimony.” 

Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 989-90 (10th Cir.

2003) (internal citations omitted). 

The Millers’ focus is on the first type of review, whether the district court

exceeded the scope of a proper Daubert inquiry. In their view, the district court

followed Daubert “for a while,” but then “went beyond . . . [Daubert] . . . to nitpick bits and pieces of Dr. Healy’s work and to question whether or not those

portions followed proper scientific methodology.” Aplt. Br. at 30. The court

erred, they argue, “by straying far beyond the proper scope of the Daubert . . . 

matrix of analysis, and premising an exclusionary decision on concerns or
-21-

questions which affect the weight rather than the admissibility of Dr. Healy’s

testimony.” Id. at 42. We disagree. 

The district court carefully followed Daubert in determining whether

Dr. Healy’s opinions were founded on scientific principles. What the Millers call

nit-picking, we would call being thorough. “The analysis outlined in Daubert is

extensive, requiring the district court to carefully and meticulously review the

proffered scientific evidence.” United States v. Call, 129 F.3d 1402, 1405 (10th

Cir. 1997) (internal quotation marks omitted). The court did not exceed the scope

of the Daubert inquiry by, for example, considering Dr. Healy’s credibility or

weighing the evidence. See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1045

(2d Cir. 1995); Ambrosini v. Labarraque, 101 F.3d 129, 141 (D.C. Cir. 1996). 

Rather, substantially relying on the opinions of the court-appointed experts, the

court carefully and properly performed its gatekeeping function under Daubert. 

Furthermore, to the extent that the Millers argue that the district court

abused its discretion in applying the gatekeeper standard, we find no abuse of

discretion. We hold that the district court did not err in excluding Dr. Healy’s

testimony. 

C. The Court’s Decision to Grant Summary Judgment 

Following the exclusion of Dr. Healy’s testimony, the district court ruled

that the Millers’ claim must be dismissed as a matter of law because they had “no
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scientific evidence of general causation.” Miller v. Pfizer, 196 F. Supp. 2d at

1125. The Millers contended at oral argument before us, however, that they had

enough evidence to avoid summary judgment even without Dr. Healy’s testimony

because Pfizer made an admission that, in and of itself, establishes general

causation. We need not address this argument because it was not raised in their

appellate briefs. See Federal Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805

(10th Cir. 1998). Nor have the Millers shown that they made this argument in

district court. The district court’s opinion states that “[t]o support their claim of

general causation, plaintiffs have relied exclusively on the testimony of

Dr. Healy.” Miller, 196 F. Supp. 2d at 1125 (emphasis added). We need not

consider an argument made for the first time on appeal. See Smith v. Rogers

Galvanizing Co., 128 F.3d 1380, 1385-86 (10th Cir. 1997). 

III. CONCLUSION

We AFFIRM the summary judgment below. In addition, we grant Pfizer’s

Motion to Strike (filed December 16, 2002), and deny Pfizer’s Motion to Take

Judicial Notice (filed December 16, 2002), the Millers’ Request for Judicial

Notice (filed November 3, 2003), and the Millers’ Second Request for Judicial

Notice (filed December 19, 2003).