* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60792

GERALDINE CHAN, as administratrix of the Estate of Randy Brewer,

deceased, and on behalf of the heirs at law and beneficiaries of Randy Brewer,

deceased.

Plaintiff-Appellant

v.

ROGER COGGINS, Boyd Bros. Transportation, Inc.

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:05-CV-00254

Before REAVLEY, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff Geraldine Chan (“Chan”) appeals the district court’s grant of

motions to strike expert testimony and for summary judgment filed by

defendants Roger Coggins (“Coggins”) and Boyd Brothers Transportation, Inc

(“Boyd Brothers”). We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

October 2, 2008

Charles R. Fulbruge III

Clerk
No. 07-60792

2

FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 2001, Coggins was traveling on Interstate-20 (“I-20”) West,

operating an 18-wheeltractor trailer owned by Boyd Brothers. He exited off I-20

and proceeded along the off-ramp toward the intersection with Gallatin Street.

The ramp splits at the intersection, and a separate lane curves to the right for

traffic heading northbound onto Gallatin Street. 

Two pedestrians, Randy Brewer and Marshall Allen, were panhandling at

the intersection. Both had been drinking heavily that day, and Brewer was

“pretty drunk” atthe time ofthe events atissue. Confined to a wheelchair, Allen

was positioned in the street on the right side of the ramp as Coggins approached

the intersection. Brewer stood on the island separating the right and left turn

lanes. Coggins drove into the right lane, and to avoid Marshall, moved the

tractor-trailer to the left side of the right lane. He brought his truck to a stop at

the intersection and waited at the light to proceed north on Gallatin Street.

Brewer then approached Coggins’s cab, coming within approximately one foot

ofthe driver’s side door, and asked for money. Without rolling down the window,

Coggins told Brewer that he did not have money and motioned for Brewer to

back away from the truck. 

There is conflicting testimony about what followed. Coggins testified that

after waiving Brewer off, he watched Brewer take a step away from the truck,

he engaged his truck, and he moved toward northbound Gallatin Street.

Coggins further testified that after he began to move forward, Brewer moved

toward the back of the truck and was struck by the trailer tires. Joseph Pettit,

a motorist who witnessed the accident while he was stopped on Gallatin Street,

testified that Brewer was about a foot away from Coggins’s truck, that Coggins

waived Brewer to back away, and that Brewer then took about a half a step back

from the truck. Brewer testified that he turned his back as he began to step
No. 07-60792

3

away from the truck and was pulled under the wheels as the truck moved

forward. Coggins drove forward a short distance and the rear wheels of the

tractor cab struck Brewer. The wheels ran over Brewer's feet, legs, and

buttocks. He later died of those injuries. 

After the accident, Brewer filed suit against Coggins and against Boyd

Brothers on a theory of respondeat superior, alleging Coggins’s negligence was

the cause of his injuries. The case was dismissed when Brewer died. The

administratrix of Brewer’s estate, Geraldine Chan, initiated the present

diversity action for wrongful death caused by the alleged negligence of Coggins

and Boyd. 

Chan retained Victor Holloman, an accident reconstruction expert, to

testify as to how Brewer could have been struck by the tractor-trailer without

moving himself in front of the truck. He planned to do so primarily through

reference to the concept of “off-tracking.” Off-tracking refers to the extent to

which the rear wheels of a truck deviate from the path of the front wheels while

turning. Holloman reviewed the depositions of Brewer, Coggins, and Pettit, the

Mississippi Uniform Accident Report for the incident, and photographs related

to the case. He did not have access to the tractor-trailer Coggins drove in the

accident. He did not conduct any tests to reconstruct the events of the accident.

In his expert report and in deposition, Holloman stated his conclusion that after

Brewer asked for money, he turned to his left but before he could step away from

the truck, he was struck from behind by the truck because Coggins failed to

maintain a proper lookout. He acknowledged that he did not have any evidence

to rely on that contradicted Coggins’s testimony that he watched Brewer step

away from the vehicle before he started to move the truck forward. He asserted

that due to off-tracking, Coggins would have moved the truck to the left as he

moved forward in order to correctfor the trailer’s off-tracking as he turned right.
No. 07-60792

4

Coggins and Boyd moved to strike Holloman’s testimony and for summary

judgment. After reviewing Holloman’s report and conducting a hearing on his

proposed testimony, the district court granted the defendants’ motion to strike

Holloman. The court then granted summary judgment in favor of Coggins and

Boyd. Chan appeals both rulings. 

DISCUSSION

I. Holloman’s Expert Testimony

a. Standard of Review

This Court reviews the decision to admit or exclude expert testimony for

abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 139 (1997).

This standard applies to both (1) how the trial court evaluates the expert

testimony, and (2) the trial court’s ultimate determination whether or not to

admit the expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

152 (1999). The trial court enjoys wide latitude in determining the admissibility

of expert testimony, “and the discretion of the trial judge and his or her decision

will not be disturbed on appeal unless manifestly erroneous.” Smith v. Goodyear

Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007) (internal quotations and

citations omitted). If we determine that the district court abused its discretion

by excluding evidence, we evaluate whether the error was harmless, “affirming

the judgment, unless the ruling affected substantial rights of the complaining

party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). 

b. Analysis

The district court determines the admissibility of expert testimony under

Fed. R. Civ. P. 702 according to the directions of Fed. R. Civ. P. 104(a). Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). In short, the court

must find that the expert testimony is both relevant and reliable before it will

be admitted. Id. at 589. To do this, the court determines whether the reasoning
No. 07-60792

5

and methodology underlying the expert’s testimony is scientifically valid and can

be properly applied to the facts of the case. Evaluating the reliability of

proffered experttestimony,the district court looks beyond credentials and makes

sure that there is an adequate “fit” between data and opinion. See Moore v.

Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998). While Daubert lists

several factors that may be considered in assessing the reliability of expert

testimony, the Supreme Court has since emphasized that the analysis is a

flexible one. Particular Daubert factors may be more or less pertinent to the

district court’s inquiry, depending on the nature of the issue, the particular

expertise, and the subject of the expert’s testimony. Kumho Tire, 526 U.S. at

150. The objective is that the district court make certain that an expert,

“whether basing testimony on professional studies or personal experience,

employs in the courtroom the same level of intellectual rigor that characterizes

the practice of an expert in the relevant field.” Id. at 152. 

Chan argues that the district court abused its discretion in striking

Holloman’s testimony because Holloman’s credentials and experience in accident

reconstruction qualify him to provide expert testimony about the cause of the

accident. She further argues that Holloman adequately validated his hypothesis

by reference to the scientific concept of off-tracking, and the district court erred

by making improper factual determinations to reject the expert’s conclusion.

Coggins responds that the district court properly exercised its discretion in

ruling that Holloman’s testimony lacked a scientific basis and was based on

insufficient facts. 

Holloman’s credentials, previous testimony in a distinguishable case, and

Chan’s citation of one Pennsylvania case allowing expert testimony regarding

off-tracking do not persuade us that it was an abuse of discretion for the trial

court to determine that his expert opinion in this case was not reliable. “A court

may conclude that there is simply too great an analytical gap between the data
No. 07-60792

6

and the opinion proffered.” Moore, 151 F.3d at 277. Although the district court’s

opinion does not provide a lengthy review of its analysis of Holloman’s expert

testimony or the reasoning behind the court’s conclusion that it lacked scientific

basis, there was no abuse of discretion in striking the testimony. A review of the

record amply supports the district court’s conclusion that because Holloman’s

opinion aboutthe cause ofthe accidentlacked a scientific basis and was contrary

to the facts in evidence, Holloman was not qualified under Rule 702 to opine

whether Coggins negligently ran over Brewer.

Chan relies heavily on the fact that Holloman has previously testified as

an expert witness, pointing to Luckett v. Choctaw Maid Farms, Inc., 307F. Supp.

2d 826, 830-31 (S.D. Miss. 2004). Although Holloman was qualified as an expert

in the case, Chan’s reliance on this fact is misplaced. Holloman testified

regarding improperly functioning brakes, not off-tracking, and based his opinion

on, among other facts, the brake maintenance records for the truck in question.

Id. Clearly his factual basis and analytical methodology were more directly tied

to the subject of his testimony. In any event, being qualified as an expert in the

circumstances of one case does not qualify one as an expert in all future cases.

Chan cites one case in which an expert testified about off-tracking to

support her argument that off-tracking is a judicially-recognized and accepted

phenomenon, and therefore the district court abused its discretion by excluding

Holloman’s testimony. In Lebesco v. Southeastern Pennsylvania Transportation

Authority, 380 A.2d 848, 850 (Pa. 1977),the state court allowed experttestimony

regarding off-tracking, reasoning that it would aid the jury in determining

whether it was a factor in the accident giving rise to the suit. Beyond Lebesco,

research uncovered only two other instances in federal or Mississippi caselaw

that discussed experttestimony of off-tracking, both clearly distinguishable from
No. 07-60792

1 Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 436 (1978) (expert testifying that

double trailers safer than singles due to reduced off-tracking, among other factors); Henderson

v. Norfolk So. Corp., 55 F.3d 1066, 1068, 1070 (5th Cir. 1995) (expert testifying that extreme

off-tracking of trailer caused by defective slide assembly). 

2 Further, the record shows that off-tracking was not the cause of the accident. Brewer

was on the outside of the cab's turning radius, not inside where he might have been struck by

off-tracking wheels of the trailer. Even if the front wheels of the truck's cab were turned

sharply left to correct for additional off-tracking, he was parallelto the cab at the time and was

not struck by the front wheels. 

3 The record demonstrates that Holloman did not follow the basic analytic framework

ofthe scientific method, conduct any basic tests of his assumptions, or work with concrete facts

about positioning, speed, tire direction, etc., despite his assertion that these were among the

factors that led to his conclusion that it was Coggins's driving errors that caused the accident.

7

this context.1 The fact that off-tracking has been discussed in other cases is not

persuasive on the issue of whether the district court abused its discretion in

either the manner of evaluating Holloman’s proposed testimony or the district

court’s ultimate conclusion that Holloman’s discussion of off-tracking did not

provide a sufficient scientific basis for his opinion.

Chan explains that the amount of off-tracking increases with the length

of the vehicle and sharpness of the turn, apparently arguing that because the

concept is relevant to the case it was an abuse of discretion for the district court

to disallow the testimony. This argument does not undermine the district court’s

finding that Holloman’s testimony lacked scientific basis.

2 Even if the concept

is relevant, it does not necessarily follow that Holloman’s application of the

concept to the facts of the case is a proper “fit”.3“[N]othing in either Daubert or

the Federal Rules of Evidence requires a district courtto admit opinion evidence

that is connected to existing data only by the ipse dixit of the expert.” Kumho

Tire, 526 U.S. at 157 (rejecting expert’s assertion that his own methods were

accurate) (internal citation omitted). 

Finally, Chan argues that while portions of Holloman’s opinion were

contrary to Coggins’s testimony, they were consistent with Brewer’s testimony.
No. 07-60792

8

On the contrary, a review of the witnesses’ depositions, Holloman’s deposition,

and his expert report demonstrates that Holloman’s reconstruction of the

accident also conflicts with Brewer’s testimony of his position at the time of the

accident. 

II. Summary Judgment

a. Standard of Review

This Court reviews the district court’s grant of summary judgment de

novo, applying the same standards as the district court. McLaurin v. Noble

Drilling (US) Inc., 529 F.3d 285, 288 (5th Cir. 2008). Summary judgment is

appropriate where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Moore v.

Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). A fact is “material”

if it “might affect the outcome of the suit under governing law.” Bazan v.

Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). Evaluating a motion for summary

judgment, the court views the facts and the inferences to be drawn from them

in the light most favorable to the nonmoving party. Moore, 233 F.3d at 874. But

conclusory allegations, unsubstantiated assertions, or a mere “scintilla of

evidence” will not defeat summary judgment. Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (“We do not, however, in the absence of any proof,

assume that the nonmoving party could or would prove the necessary facts.”).

Summary judgmentis mandated ifthe nonmoving party fails to make a showing

of evidence sufficientto establish the existence of an element essentialto its case

on which it bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). 

b. Discussion

Chan asserts that even without Holloman’s testimony,there is conflicting

testimony aboutthe events ofthe accident and sufficient circumstantial evidence
No. 07-60792

4 Although Coggins and Pettit testified that he stepped into the path of the truck,

defendants argue that, even ignoring that testimony, Chan has not provided evidence

explaining how Coggins could have struck Brewer, who was at least a foot or two away from

the cab before Coggins saw him step back. 

9

to support a jury finding of negligence by Coggins under Mississippi law.

Coggins and Boyd argue that they are entitled to summary judgment because

the case contains no evidence that Coggins was negligent. 

Under Mississippi law the elements of negligence are: duty, breach,

causation, and damages. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279, 1282

(Miss. Ct. App. 2007). Negligence may be proved by circumstantial evidence,

“provided that the circumstances are sufficient to take the case ‘out of the realm

of conjecture and place it within the field of legitimate inference.’” Thomas v.

Great Atlantic & Pacific Tea Co., Inc., 233 F.3d 326, 329-30 (5th Cir. 2000)

(quoting K-Mart Corp. v. Hardy, 735 So. 2d 975, 981 (Miss. 1999)). The jury

must be able to make a reasonable or reliable inference about negligence from

the circumstantial evidence. Mississippi Dep’t of Transp. v. Cargile, 847 So. 2d

258, 263 (Miss. 2003). 

Chan has not offered a scintilla of evidence of negligence on the part of

Coggins. No one disputes that Coggins’s truck came to a complete stop before

Brewer ever approached the truck. Brewer then either took a small step away

or began to turn.4 Brewer was not on the inside of the turning radius of the

truck, so any off-tracking by the trailer wheels did not threaten him.

Furthermore, he was struck by the wheels of the truck, not the off-tracking

trailer. None of the witnesses place Brewer in front and to the left of the cab of

Coggins’s truck, the only position where a forward movement with the wheels

turned extremely to the left might have struck Brewer. Brewer himself testified

that he was even with the door of Coggins’s truck. Indeed, the two had just

finished communicating with each other when Coggins engaged the truck to pull

away. 
No. 07-60792

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All parties agree that Brewer was standing to the side ofthe truck, atleast

a foot away from the cab door, at the time that the truck began moving.

Coggins’s uncontested testimony is that he watched Brewer in his side mirror

as he engaged the truck and began to move. Chan has not put forward sufficient

evidence to support a finding that Coggins breached a duty of care to Brewer, a

pedestrian already outside of the path of the truck and standing to the side of

the vehicle. Chan has not provided evidence that would take this case out of the

realm of conjecture. See Thomas, 233 F.3d at 330. Because there is no evidence

that Coggins breached any duty to Brewer to cause the accident, Chan cannot

establish the elements of negligence. Brewer was already out of the truck’s path,

and plaintiff has put forward no evidence of any negligent operation of the truck

by Coggins. Because there are no material facts at issue, we affirm the district

court finding of summary judgment for the defendants. 

CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.