UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

ERICA HOFFMAN; GARY HOFFMAN; SANDRA HOFFMAN, Plaintiffs - Appellees,

v. FORD MOTOR COMPANY, a Delaware corporation, Defendant - Appellant. No. 10-1137 (D.C. No. 1:07-C V-00081-REB-CBS) (D. Colo.)

ORDER AND JUDGMENT *

Before MURPHY , McKAY , and O'BRIEN , Circuit Judges.
Erica Hoffman was rendered a quadriplegic from injuries she suffered as a front seat passenger in a rollover of a 1999 Fo rd Mercury Cougar Coupe (Cougar). She and her parents, Gary and Sandra Hoffman, (c ollectively, Hoffmans) sued Ford Motor Company (Ford) claiming she wa s wearing her seatbelt at th e time of the accident but, due to a defect in its buckle, it released durin g the accident causing her to be ejected from

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### August 16, 2012 Elisabeth A. Shumaker Clerk of Court- 2 - the vehicle and to suffer a paralyzing spinal cord injury. To suppo rt Hoffmans’ defect theory (product liability and ne gligent design), expert mechanical engineer Dr. Craig Good opined that Erica’ s seatbelt buckle “most pr obably” inertially unlatched 1 during the accident due to a defect in its design. (R. Vol. 2 at 304.) To reach this conclusion, he ran a series of component tests on buckles similar in design to Erica’s (but not her buckle) to determine their lowest inertial unlatch thresh old, i.e., the lowest level of acceleration needed to unla tch the buckle. 2 After obtaining his results he was required (as he acknowledged) “to make a comparison with data from rollover crash tests to determine if the scenarios measured in the laboratory could occu r in the real world.” (R. Vol. 2 at 301.) However, citing a lack of rollover crash test data, he compared his results to data from planar crash tests – ones con ducted on only the horizontal plane 3 (as opposed to the considerably more dynamic and elusive forces present in a rollover) – and determined his results could occur in the real world. Ford moved to exclude Good’s testim ony as unreliable and irrelevant under Daubert v. Merrill Dow Pharms., Inc. , 509 U.S. 579 (1993), because, inter alia , Good

1 Inertial unlatch of a seatbelt buckle occu rs when vibration and shock act on the mechanism which locks the seatbelt tongue into the buckle receptacle causing the lock to disengage and release the tongue. 2 The parties sometimes speak in terms of the amount of force necessary to cause inertial unlatch of a buckle. However, Good’s tests measured the amount of acceleration needed to cause inertial unlat ch. While a force causes an object’s acceleration, acceleration itself measures the object’s change in velocity over time. Velocity, in turn, is the rate of change of an object ’s displacement (position) with time. See Edwin R. Jones & Richard L. Childers, Contemporary Co llege Physics at 31, 39, 96 (2d ed. 1993). 3 Planar crashes “occur[] at any angle with in the horizontal plane of the vehicle, . . . . includ[ing] frontal cras hes.” (R. Vol. 1 at 150.)- 3 - failed to demonstrate that the levels of accel eration he found necessa ry to cause inertial unlatch in the laboratory occurred or could have occurred on Erica’s buckle in this accident. The district court denied the motio n, concluding Ford ha d failed to show how the differences between Good’s test resu lts and real-life rollover accidents were significant. Aside from what it perceived to be Ford’s failure, the court decided any deficiencies in Good’s tests went to the we ight, not the admissibility, of his opinions. Accordingly, at trial Good was permitted to offer his opinion that Erica’s seatbelt inertially unlatched during the acc ident resulting in Erica’s inju ries. The jury found Ford liable. The district court denied Ford’s su bsequent motion for judg ment as a matter of law or in the alternative a new trial. In permitting Good’s expert testimony to be presented to the jury the district court was not a sufficiently exacting gatekeeper; Daubert requires more precision. Good failed to present a scientific connection between the accelerations he found necessary to inertially unlatch buckles tested in the laboratory and accelera tions that occurred or could have occurred on Erica’s buckl e during the rollover. As a result, his opinion (that Erica’s buckle was defective because it inertially unl atched during the accident) should not have been admitted at trial. At trial, Good changed the rationale for his opinion from that contained in his pretrial filings. But even then he failed to make the critical connection between lab tests and real world events, a necessary i ngredient to establish causation. Citing the insufficiency, Ford repeatedly moved fo r judgment as a matter of law or for a new trial. In rejecting Ford’s motions, the court erred. Absent Good’s testimony, Hoffmans’ evidence was- 4 - insufficient to support the jury’s verdict. Because Hoffmans had a full and fair opportunity to present their ca se, we reverse and remand to the district court to enter judgment in fa vor of Ford. FACTUAL BACKGROUND On the morning of March 14, 2006, Erica and her friend Shannon Cvancara, both seniors at Weld Central High School, were pr acticing a cheerleading routine at Shannon’s house. Sometime around 12:30 p.m., they le ft for school, which was approximately 10 to 15 minutes from Shannon’s house. 4 They went in the Cougar—Shannon in the driver’s seat and Erica in the front passenger seat. As they were traveli ng westbound on County Road 10 (a dirt road) in We ld County, Colorado, the vehicl e’s right wheels went off the edge of the road. Shannon, who was trav eling at or above the speed limit, responded with a hard steer to the left , sending the vehicle into a co unter-clockwise spin across the road. 5 It then went off the south side of the road and began a driver’s side leading roll. It

4 The girls did not need to be to school until 1 p.m. The time of the crash is unclear. Erica testified she and Shannon left for school between 12:30 and 12:45 p.m.; Shannon said they left at approximately 12:45 p.m. Troy Nuss, the police officer who investigated the accident scene, said the cras h occurred at 12:25 p.m. and he was notified of the accident at 12:32 p.m. One of the para medics on scene testified he was dispatched to the accident scene at 12:29 p. m.; another paramedic said he departed for the accident scene at 12:45 p.m. The relevance of the time of the crash went to Ford’s theory that Shannon and Erica were late for school prompting Shannon to speed. 5 At trial, Hoffmans’ accident reconstruc tionist estimated the vehicle was traveling 57 to 61 mph when it left the south side of County Road 10 and 47 to 50 mph when it began rolling. Shannon testified she was tr aveling 55 to 60 mph on Highway 65, the paved road leading to County Road 10; Er ica said Shannon was going approximately 65 mph on Highway 65. Ashley Pe terson (a friend of Erica’s) te stified to Erica having told her Shannon was going over 100 mph at the time of the accident. The speed limit of County Road 10 is 55 mph.- 5 - rolled 31⁄2 to 41⁄2 times down a grassy barrow ditch into a concrete irrigation ditch and landed on its roof. Shannon, secured by her seatbelt, re mained in her seat and sustained only minor injuries. Erica was ejected from th e vehicle and suffered a spinal cord injury rendering her a quadriplegic. PROCEDURAL BACKGROUND Among others, 6 Hoffmans sued Ford, the designe r, manufacturer, marketer and distributor of the Cougar. They alle ged negligence and strict liability.

A. Hoffmans’ Seatbelt Restraint Expert – Dr. Craig Good Hoffmans retained Dr. Craig Good, a mechanical enginee r, to offer an opinion as to whether: (1) Erica was wearing her seatbelt at the onset of the rollover accident; (2) the front passenger seatbelt functione d properly and as expected th roughout the rollover; and (3) safer alternative seatbelt buckle designs we re available at the time the Cougar was manufactured, designs that would have prev ented or reduced Eri ca’s injuries. After examining the vehicle and the accident s ite, reviewing depositio n testimony and other relevant documents, and running a series of tests, Good produced a report outlining his

6 Shannon ultimately pled gu ilty to careless driving causing bodily injury. She settled with Hoffmans prior to the filing of the instant laws uit. In addition to Ford, Hoffmans sued TRW Vehicle Safety Systems (TRW), wh o designed in part and manufactured in part components of the righ t-front passenger seatbelt assembly used in the Cougar. TRW settled with Hoffmans prior to trial. Ford designated Shannon and TRW as non-parties at fault. The jury u ltimately found them 40 and 25 percent liable, respectively. It also attri buted 10 percent fault to Eri ca, apparently based on an assumption of the risk theory, i.e., Erica was aware Shan non often drove above the speed limit but nevertheless chose to ride with her.- 6 - opinions. 7 Based on, inter alia , a physical examination of Erica’s seatbelt, Good concluded Erica was wearing it at the onset of the accident. 8 Having come to that conclusion, Good went on to opine that it must have become unlatched during the rollover in order for her to have been ejected from the vehicle. He identified three ways in which a seatbelt can become unlatched: (1) inadvert ent actuation or unlatch, whic h occurs when in some way the occupant unintentionally presses the re lease button on the seatbelt buckle during an accident; (2) false latch which oc curs when the seatbelt tongue only appears to be secured in the buckle receptacle but can , in fact, be removed by applying over five pounds of force and (3) inertial unlatch. Good eliminatedinadvertent unlatch as the cause of the buckle failure here because its design made that difficult. He also ruled out false latch as he observed nothing to support it when he tested Erica’s buckle. 9 This portion of his opinion went uncontested and is not challenged in this appeal. To determine whether the buckle was susceptible to inertial unlatch, Good examined the seatbelt restrain t system used in the Cougar. The front passenger seat is

7 The report was made available to Ford as provided in Rule 26, Fed. R. Civ. P. 8 Whether she was wearing her seatbelt was ho tly contested at tria l. Ford does not concede the issue, but it is not directly releva nt to the issue presented here. Ford does argue, however, that Good’s improperly ad mitted opinions may have influenced the jury’s decision on that point.

9 To test for false latch, Good insert ed the seatbelt’s tongue into the buckle receptacle and pulled on the tongue. He did that several times; the tongue did not release. While not contained in his expert report, Go od testified at trial that he tested for inadvertent unlatch by rolling a 28-millimeter ball bearing ov er the top of the release button. That motion did not activate the release button.- 7 - equipped with an end-release buckle, meaning the button to release the seatbelt tongue from the buckle receptacle is located at the end of the bu ckle. The webbing of the seatbelt is attached to the seatbelt tongue. The tongue has a hole in it. When the tongue is inserted into the buckle re ceptacle, a spring-loaded latch drops into the hole, locking the tongue in place. The latch its elf is locked into place by tabs on the release button. If the release button is partially depressed as little as .059 inches, the latch lock is defeated. According to Good, once that lock is defeated, significant accelerations applied to the buckle may cause the latch to rise and releas e the tongue. He also said if sufficient acceleration causes the release button to be fully depressed (. 25 inches), ramps on the release button push the latch upward, releasing the tongue. With that assessment in mind Good conductedtwo tests. The objective of the first test was to determine the test buckle’s lowest vertical inertial unlatch threshold in the laboratory, i.e., the lowest amount of accelerat ion applied in the vertical direction needed to unlatch the buckle. Good tested eighteen buckles similar in design to Erica’s buckle, which was not tested. 10 Three of the eighteen buckles were salvage buckles; the remaining buckles were new. Good tested only the buckle, i.e., the buc kle receptacle with the seatbelt tongue inserted. He did not include any seatbelt webbi ng (usually attached to the tongue) or the

10 Apparently Good did some tests of Erica’s buckle ( see supra n.9), but did not use it in the acceleration tests. In their brie f, Hoffmans say Good did not test the actual buckle because it had been through a seri ous accident and would not yield reliable results. While that may be true, they provide no record cite for their explanation and we did not uncover an explanation in our review of Good’s testimony.- 8 - steel stalk which normally holds the buckle rece ptacle some distance from the floor so the tongue can be conveniently in serted into it. Using a s hock machine, he dropped the buckles vertically onto a felted pad. The impa ct caused an acceleration to be applied to the buckle; Good recorded the acceleration for each drop. A total of 97 drops were performed on the eighteen buckles. The test revealed the vertical inertial unlatch threshold varied from buckle to buckle. 11 The lowest vertical unlatch threshold was 133
g. 12 However, two of the buckles did not unla tch at accelerations as high as 473 g and 516 g. Good did not test these buckles fu rther because doing so would have entailed reassembling the shock machine for higher accelerations. In the second test, Good used two buckles from the first test—the buckle with the lowest vertical inertial unlatch threshold (Buc kle 284) and the buckle that did not unlatch at 473 g (Buckle 293). He then dropped them onto the felted pad at 15, 30 and 45 degrees from vertical (oblique angle tests). A pplying the same protocol used in the first test, he determined the lowest inertial unlatch threshold of each buckle at each angle. A total of 95 drops were performed on those tw o buckles. Results showed intra-buckle variability. For instance, one time Buckle 284 rele ased at 209 g when dropped at a 15

11 Good did not explain the variations in his Rule 26 re port. At trial, however, he told the jury no two buck les are identical because there are variations in the manufacturing of their components. He admitte d to conducting no an alysis to determine the cause of the variations. The intrabuckl e variability did, in his view, likely explain why Erica’s seatbelt inertially unlat ched while Shannon’s did not. 12 A “g” is the average acceler ation produced by gravity at the Earth’s surface (sea level). One g equals the amount of force th at gravity pulls down on everything; its value is 9.907m/s 2

. See http://www.unc.edu/~rowlett/units/dictG.html and http://physics.info/acceleration (last visited Feb. 9, 2012).- 9 - degree angle; however, on another drop at the same angle it did not release at 224 g. The results also varied between th e two buckles. In the end, Good established Buckle 284’s lowest inertial unlatch thresholds at 15, 30 and 45 degrees were 209 g, 146 g and 124 g, respectively. Buckle 293’s thresholds were 415 g, 189 g and 149 g. From these results, he concluded the inertial unlatch thresholds of the buckles decreased as the angle increased. While acknowledging the test samples were low (two buckles), he claimed his results were consistent with data obtained from prior oblique inertial unlatch threshold tests performed by Clarke Automotive Consultants 13 on buckles suffici ently similar in design to Erica’s. After performing the tests, Good acknowle dged in his Rule 26 report, “it [is] important to make a comparison with data fro m rollover crash tests to determine if the scenarios measured in the labora tory could occur in the real wo rld.” (R. Vol. 2 at 301.) However, because there was a lack of buckle acceleration data from real-world rollover collisions suitable for comparison, Good comp ared his results to data from horizontal plane crash tests (planar tests). Because (1) those tests showed peak vertical accelerations on the buckle co uld exceed 200 g and (2) his testing showed the subject buckle could inertially unlatch with accelerations as low as 124 g, Good concluded the subject buckle was susceptible to inertial unl atch in a reasonably anticipated rollover. Consequently, given (1) the physical evidenceshowing Erica was wearing her seatbelt at

13 Good performed his acceleration tests at Clarke Automotive Consultants, which also assisted with the testing. He chose to work with them beca use it had the necessary equipment and had performed seatbelt buckle testing in the past.- 10 - the onset of the accident and it came unlatched during the accident and (2) ruling out the other means by which a seatbelt may become unlatched during an accident, Good concluded Erica’s buckle “mos t probably” inertially unlatched during the rollover. (R. Vol. 2 at 304.) Finally, Good performed tests to determine whether safer alternative seatbelt buckle designs were available at the time the Cougar was manufactured. Using a similar protocol to that used to de termine the inertial unl atch thresholds for buckles similar to Erica’s, Good tested buckles from a 1999 Ch evy Venture, a 2000 Ford Focus, a 1994 Ford Mondeo and a 1998 Lexus LX470. Thes e buckles, unlike Erica’s, were designed with counterweights to prevent inertial unlatch. None of the buckles released during vertical shock testing with peak accelerat ions over 470 g. During the oblique angle testing, the buckle from the 1999 Chevy Ve nture released at 341 g in a 45 degree orientation. The buckles from the other vehicl es did not release in a 45 degree orientation when subjected to accelerations as high as 531 g. From these results, Good concluded substantially safer alternative designs we re available at the time the Cougar was manufactured and had one of these designs be en used, Erica’s seatbelt buckle would not have inertially unlatched. B. Ford’s Daubert Motion Pursuant to Daubert and Rules 402, 702 and 703 of the Federal Rules of Evidence, Ford filed a motion to exclude Good’s opinion. It did not challenge his qualifications as an expert in the field of seatbelt restraint sy stems. It did, however, argue Good’s inertial unlatch opinion was unreliable and irrelevant because, as it relates to this appeal, he- 11 - failed to determine whether the levels of accel eration he found necessary to cause inertial unlatch in the laboratory occurred or could ha ve occurred in the rollover accident. He identified several points in the accident he believed would have ge nerated accelerations sufficient to inertially unlatch Erica’s buckle but, as Ford pointed out, neither he nor Hoffmans’ accident reconstruction expert pe rformed any calculations or tests to determine the levels of acceleration being ap plied on the buckle at the identified points. Ford also argued that while Good claimed there was insufficient rollover data, he admitted to being aware of rollover crash test s in which the accelerations present on the buckles were measured and none of the acceler ations reached 124 g, the lowest level he found necessary to cause inertial unlatch in the laboratory. Rather than rely on these tests, he compared his results to data deri ved from horizontal plane crash tests, but he failed to establish that the accelerations pr esent in a planar collision have sufficient similarity to those present in this rollover or rollovers in general. C. Hoffmans’ Response to Ford’s Daubert Motion Hoffmans opposed Ford’s Daubert motion. They admitte d Good did not perform any calculations to determine the accelera tions present on Erica’s buckle during the accident, but they attached an affidavit from Good resp onding to each of Ford’s criticisms. In it, Good maintain ed such calculations cannot be made after the fact with any degree of scientific certai nty. The only way to determ ine the accelerations present during a rollover accident is to measure themwith instrumentati on during the rollover and there was no such instrumentation presen t in Shannon’s vehicle at the time of the accident.- 12 - In his affidavit, Good expou nded on the lack of rollover crash test data, stating the number of rollover tests conducted is “v ery small” because they are costly (approximately $100,000) and rollover crashes are non-repeatable events. (R. Vol. 2 at 323.) He admitted to being aware of two ro llover crash tests where instrumentation was present to measure the accelerat ions applied to an end-rele ase seatbelt buckle like that present in Shannon’s vehicle. He conceded that none of the le vels of acceleration observed in the tests exceeded the inertial unlatch thresholds identified in his laboratory tests. Good criticized these tests, however, because they were conducted by automotive manufacturers or their consultants in defense of alleged seatbelt restraint failures and the reports did not provide the in formation necessary to reproduce the tests or allow a full analysis by another researcher. Acknowledging Ford’s criticism of Good’ s use of horizontal plane crash tests results, Hoffmans noted Ford had not identified how the accelerations applied to the buckle differ between planar and rollover cr ashes. Moreover, they said, Ford’s own seatbelt buckle specifications required buckles to resist accelerations up to 150-180 g, a fortiori , it admitted the buckles may experience high accelerations during a crash. Finally, they pointed ou t even Ford’s own planar crash te sts showed accelerations of 180 g might be present on the vehicle structure and Good’s tests found the lowest inertial unlatch threshold of the s ubject buckle to be 124 g. D. District Court’s Denial of Ford’s Daubert Motion The district court denied Ford’s Daubert motion. It noted that other courts addressing the phenomenon of inertial unlatch have required proof of “substantial- 13 - similarity” between the test c onditions and the actual crash. (R. Vol. 2 at 408 (quotations omitted).) Reworking the substa ntial similarity analysis so mewhat, the court identified the issue here as “whether Good ’s tests describe circumstances so dissimilar to those that might have been anticipated to occur in Erica Hoffman’s acci dent as to be unreliable and irrelevant to the issues befo re the jury.” (R. Vol. 2 at 409 (emphasis added).) It concluded no, reasoning: [O]ther than accusing Good of having concocted a ‘worst case scenario’ by virtue of his various testing choices, [Ford] make[s] no effort to quantify the differences between Good’s laboratory results and re al world rollover crashes. Stated differently, although [Ford] insist[s] that the variables [it] id entif[ies] matter, [it] do[es] not show how much they matter, much less that they matter enough to completely undermine the re liability and relevance of Good’s opinions such that his testimony must be excluded in toto . Where the test is substantial similarity, such proof clearly is relevant. Nor is th is a case in which Good’s testing methods are so patently inadequate that his conclusions are nothing more than rank speculation or subjective belief. 14 (R. Vol. 2 at 409-10.) It also noted it was “unfair” for Ford to demand that Good compare his test results to evidence from rollover crashes “when it appears the limited number of rollover tests that have been cond ucted did not measure th e acceleration forces in any event.” (R. Vol. 2 at 409 n. 1.) In the end, the court determined the alleged deficiencies in Good’s tests went to the weig ht, not the admissibility, of his opinions, and the deficiencies could be adequately addre ssed on cross-examination and with competing evidence.

14 Ford argued Good’s testing was designe d and conducted to prove his inertial unlatch theory rather than to impartially inqui re as to whether the theory was objectively viable.- 14 - E. Trial The trial was a battle of the experts with the key issues being whether Erica was wearing her seatbelt and, if so, whether her s eatbelt released due to inertial unlatch. With respect to the second issue, in his testim ony Good described the tests he performed and his results. He then attempted to link his test results to the subject ac cident. He informed the jury about the limited number of rollover cr ash tests. However, rather than rely on data from planar crash tests as he did in his Rule 26 report and supplementing affidavit, he relied on the trial testimony of Hoffm ans’ biomechanics expert, Dr. Mariusz Ziejewski, who testified that during a rollo ver accident, when the vehicle slams down on its wheels, the corners of the vehicle could experience 120 to 150 g’s and the vehicle’s mainframe a “couple hundred g’s easily.” (R. Vol. 8 at 2251.) Given these levels and because his test results showed buckles simi lar to Erica’s could release at 124 g, Good told the jury Erica’s buckle was defective because it c ould not withstand the levels of acceleration one would expect to be present in a rollover accident. On cross-examination, Good admitted a key factor in his defective seatbelt opinion was that Erica’s buckle was unable to withsta nd the accelerations expected in a rollover accident. But he conceded he did not calculate or know the accelerations present at the buckle in this case. And that was because th ere was no instrumentation in the vehicle at the time of the accident. He further admitted he was not aware of any rollover crash test with a seatbelted dummy and an end release buckle where inertial unlatch occurred. As to his reliance on Ziejewski’s testimony that 10 0 to 200 g’s can be present in a rollover accident, Good admitted these accelerations c ould reasonably be expected on the vehicle- 15 - structure during a rollover accid ent, but such accelerations were not necessarily present on the buckle. To rebut Good’s testimony Ford called its own seatbelt restraint expert, Michael Klima, also a mechanical engineer. He te stified about laboratory tests and real-life rollovers. In doing so, he discussed the resu lts of three different tests: (1) a rollover crash test of a 2000 Lincol n Navigator in which the ma ximum vertical acceleration recorded on the seatbelt buckle was 41 g; (2 ) a drop test (where a vehicle is dropped vertically from a certain height onto its wheel s) of four vehicles in which the maximum vertical acceleration observed on a seatbelt buck le was 33 g; and (3) a drop test of a 2000 Ford Mustang at a five-degree pitch onto a concrete slab in which the maximum vertical acceleration measured on th e seatbelt buckle was 70 g. 15 In none of the three tests did inertial unlatch occur. Because the accelerations reco rded in these tests were lower than the 124 g Good found necessary to cause inertial unlatch in buckles similar to Erica’s, Klima opined that the conditions necessary to cause inertial unlatch in a laboratory are not present in a real-life rollover accident. On cross-examination, Klima admitted that during the rollover test involving the Lincoln Navigator an accelerat ion of 200 g was measured at the buckle. However, on redirect, he clarified the 200 g acceleration was lateral (side to side) and a vertical acceleration is necessary to cause inertial unl atch of an end-release buckle like Erica’s

15 The nose of the Mustang was dropped at a five degree pitch to allow the vehicle’s floor pan or underc arriage to directly hit the concrete slab. The floor pan/undercarriage hit the concrete slab at a point directly below where the driver’s seatbelt buckle was mounted.- 16 - because the acceleration must be “going down the axis to help try to function the buckle,” i.e., “to press the [release] button.” (R. Vol. 13 at 3468.) Moreover, at the time the 200 g lateral (one form of horizont al) acceleration was being applied to the buckle, the seatbelt was incurring almost 300 pound s of load (from the seatbelted dummy); according to Klima (and Good agrees) such tension decrea ses the likelihood of an inertial unlatch. After a 10-day trial and 31⁄2 days of delib eration, the jury found Hoffmans’ total damages to be $18 million and that Ford was 25 % at fault, resulting in a judgment of $4.5 million against Ford. F. Ford’s Rule 50 Motions and Motion for New Trial At the conclusion of Hoffman s’ evidence, Ford moved fo r judgment as a matter of law under Rule 50(a), Fed. R. Civ. P. The court denied the motion. When Ford renewed the motion at the close of all the evidence, the court took it under advisement. After the jury’s verdict, Ford filed a mo tion for judgment as a matter of law pursuant to Rule 50(b), Fed. R. Civ. P. The basis for all three motions was the same – there was insufficient evidence demonstrating Erica’s seatbelt buc kle was defective because Good failed to show the levels of acceleration he identified in the laboratory as causing similar buckles to inertially unlatch did occur or could have occurred on Erica’s buckle in the rollover. Rather, the only evidence at trial of the reas onably expected acceleration levels present on a buckle during a rollover crash came from Fo rd and that evidence showed the levels Good found necessary to cause inertial unlatch of buckles sim ilar to Erica’s do not occur in rollover accidents. In the alternative, Ford argued it was entitled to a new trial under Rule 59, Fed. R. Civ. P., due to the erroneous admission of Good’s testimony.- 17 - Hoffmans, of course, resisted the moti on. They relied on Ziejewski’s testimony that the level of acceleration generated during a rollover is “a couple hundred g’s easily” as well as Good’s testimony that the acce lerations on the vehi cle floor would be amplified 1.36 to 2.37 times at the location of the buckle. Ford’s own evidence also showed that 200 g’s of acceleration can be ge nerated in a rollover accident. Therefore, Hoffmans argued there was suffi cient evidence Erica’s buckle was defective because it could not withstand the levels of accelerati on reasonably expected in a rollover crash. The court denied Ford’s motions. It ente red judgment consistent with the jury’s verdict. DISCUSSION Ford contends the district court (1) failed to perform its gatekeeper role prior to admitting Good’s inertial unlatch opinion a nd (2) abused its discretion in admitting Good’s inertial unlatch opinion at trial because the methodology he used to arrive at that opinion was neither reliable nor relevant. 16 We review de novo wh ether the district court

16 Ford also argues the court erred in de nying its Rule 50 motions. Because we conclude the court failed to perform its gate keeper role and abused its discretion in admitting Good’s testing, we need not addr ess this argument. However, as we will explain, given (1) Good’s failure to demonstrat e at trial that the levels of acceleration he found necessary to inertially unl atch buckles similar to Erica’s in the laboratory occurred or could have occurred on Erica’ s buckle in the rollover accide nt and (2) in fact, the only evidence at trial regarding the levels of a cceleration present on a buckle in a rollover crash demonstrate those levels are not present, the court erred in denying Ford’s Rule 50 motions because Hoffmans provided insuffi cient evidence that Erica’s buckle was defective. See Burrell v. Armijo , 603 F.3d 825, 832 (10th Ci r. 2010) (“A party is entitled to judgment as a matter of law only if all of the evidence, viewed in the light most favorable to the non-moving party, reveals no legally sufficient evidentiary basis to find for the non-moving party.”).- 18 - applied the proper standard in performing its gatekeeper role. Dodge v. Cotter Corp. , 328 F.3d 1212, 1223 (10th Cir. 2 003). We review the court’s actual application of the standard in deciding whether to admit or exclude an expert’s te stimony for abuse of discretion. Id. “A district court abuses its disc retion when it renders an arbitrary, capricious, whimsical, or manifest ly unreasonable judgment.” Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 968 (10th Cir. 20 01) (quotations omitted). Under the abuse of discretion standard , we will not disturb a distri ct court’s decision unless we have “a definite and firm conviction that the . . . court has made a clear error of judgment or exceeded the bounds of permissibl e choice in the circumstances.” Id. at 968-69. A court’s error of law, however, is always an ab use of discretion if it results in prejudice. See Reg’l. Air Inc. v. Canal Ins. Co. , 639 F.3d 1229, 1234 (1 0th Cir. 2011) (“[A] prejudicial error of law is never discretionary and so always a basis for reversal under the abuse of discretion standard of review.”). A pplying the above standards, we agree with both of Ford’s arguments. A. Gatekeeper Role Rule 702 of the Federal Rules of Evid ence governs the admissibility of expert testimony. United States v. Call , 129 F.3d 1402, 1404 (10th Cir. 1997). It states: If scientific, technical, or other specia lized knowledge will as sist the trier of fact to understand the evidence or to de termine 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, if (1) the testimony is based upon sufficient fa cts or data, (2) the testimony is the product of reliable principles and me thods, and (3) the witness has applied- 19 - the principles and methods reliably to the facts of the case. 17 The rule imposes a duty on the district court to ensure expert testimony is relevant and reliable prior to admitting it. See Daubert , 509 U.S. at 589; see also Dodge , 328 F.3d at 1221. “Fulfilling the gateke eper duty requires the judge to assess the reasoning and methodology underlying the expert’s opinion and determine whether it is both scientifically valid and applicable to a particular set of facts.” Goebel v. Denver & Rio Grande W. R. R. Co. , 346 F.3d 987, 9 91 (10th Cir. 2003); see also Daubert , 509 U.S. at 592-93. While a district court is “accorded great latitude in dete rmining how to make Daubert reliability findings, . . . the court must, on the record, make some kind of reliability determination.” United States v. Velarde , 214 F.3d at 1204, 1209 (10th Cir. 2000). Following that determination, the cour t must decide whether the testimony “fits,”

17 Rule 702 was amended effective December 1, 2011, “as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. ” Fed. R. Evid. 702, advisory committee’s note (2011 amendments). It provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and me thods to the facts of the case. The amendment is “intended to be stylistic onl y. There is no intent to change any result in any ruling on evidence admi ssibility.” Fed. R. Evid. 7 02, advisory committee’s note (2011 amendments).- 20 - in other words, whether “it involves a reliable method that would aid the jury in resolving a factual dispute.” See Bitler v. A.O. Smith Corp. , 400 F.3d 1227, 1238 (10th Cir. 2004). In its Daubert motion, Ford identified a number of deficiencies in Good’s testing, which it believed rendered his inertial unlat ch opinion unreliable and irrelevant. Prominently included was his fail ure to relate his testing to re al world events. Faced with these objections, the district court was requi red to “adequately demonstrate by specific findings on the record that it has pe rformed its duty as gatekeeper.” Goebel v. Denver & Rio Grande W. R. R. Co. , 215 F.3d 1083, 10 88 (10th Cir. 2000); see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 149 (1999) (“[W]her e [expert] testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question . . . the trial judge must determine whether the test imony has a reliable basis in the knowledge and experience of the relevant discipline.”). “Without specific fi ndings or discussion on the record, it is impossible on ap peal to determine whether the district court carefully and meticulously reviewed the proffered scientific evidence or simply made an off-the-cuff decision to admit the expert testimony.” Goebel , 215 F.3d at 1088 (q uotations omitted). No hearing was conducted. 18 The district court decided the Daubert issues on the briefs and their supporting materials. It de scribed Good’s testing and the alleged testing deficiencies but failed to determine whether any of these deficien cies undermined the reliability and relevancy of Go od’s inertial unlatch opinion. For instance, it noted Good

18 Ford appears to fault the trial court for not holding a Daubert hearing. But it never requested one and Daubert does not demand one. See Call , 129 F.3d at 1405. Nevertheless, the district court was still re quired to properly perform its gatekeeping function. Its written order fails to demonstrate that it did so.- 21 - had compared his test results to data from planar crash tests rather than from rollover crash tests because there was limited rollover crash test da ta. It also noted Ford’s objection to that comparison. However, rath er than determine whether a comparison to planar crash tests is scientifi cally valid, the court chastised Ford for failing to show this alleged deficiency mattered and, if so, how mu ch it mattered. It also deemed it “unfair” for Ford to demand a comparison to rollover crash test data because of the limited amount of such data. (R. Vol. 2 at 409 n.1) But a review of Ford’s Daubert motion demonstrates it did more than simply allege this deficiency; it also explained why the deficiency rendered his testing, and in turn his inertial un latch opinion, unreliable and irrelevant. In any event, it was not Ford’s burden to show Good’s inertial unlatch opinion was unreliable and irrelevant. Rather it wa s Hoffmans’ burden to show reliability and relevancy. United States v. Nacchio , 555 F.3d 1234, 1241 (10th Cir. 2009) (“The proponent of expert testimony bears the burde n of showing that its proffered expert’s testimony is admissible.”). Moreover, it wa s not “unfair” for Ford to demand a comparison that Good himself acknowledge d (in his Rule 26 report) was necessary. B. Reliable and Relevant To be reliable, an expert’s proffered tes timony must have “a reliable basis in the knowledge and experience of his discipline.” Daubert , 509 U.S. at 592. In making that determination, the district court must deci de “whether the reasoning or methodology underlying the testimony is sc ientifically valid and . . . whether that reasoning or methodology properly can be app lied to the facts in issue.” Id. at 592-93. While “absolute certainty is not required,” an expe rt’s opinion “must be based on scientific- 22 - knowledge, which implies a grounding in th e methods and procedur es of science based on actual knowledge, not mere subjective belief or unsupported speculation.” Goebel , 346 F.3d at 991 (quotations omitted). “Gener ally, the district court should focus on an expert’s methodology rather than the conclusions it generates.” Id. at 992. “However, an expert’s conclusions are not immune from scruti ny: ‘A court may conclude that there is simply too great an analytical gap betwee n the data and the opinion proffered.’” Id. (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997 )). “[N]othing in either Daubert or the Federal Rules of Evidence re quires a district court to admit opinion evidence which is co nnected to existing data only by the ipse dixit of the expert.” Joiner , 522 U.S. at 146. In determining whether an expert’s reasoni ng or methodology is valid, a court may consider: (1) whether the opinion or theory is susceptible to testing and has been subjected to such testing; (2) whether the opi nion or theory has be en subjected to peer review; (3) whether there is a known or pote ntial rate of error associated with the methodology used and whether there are sta ndards controlling the technique’s operation; and (4) whether the theory has been genera lly accepted in the sc ientific community. Daubert, 509 U.S. at 593-94. The lis t is not exclusive and the in quiry is a “flexible one.” Id. at 594. “Regardless of the specific factors at issue, the purpose of the Daubert inquiry is always ‘to make certain that an expe rt, whether basing test imony upon professional studies or personal experience, employs in th e courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’” Dodge , 328 F.3d at 1222-23 (quoting Kumho Tire , 526 U.S. at 152).- 23 - An expert’s testimony must also be rele vant—it must assist the fact-finder in understanding the evidence or determining a fact in issue. Daubert , 509 U.S. at 591. “‘Relevant evidence’ means evid ence having any tendency to make the existence of any fact that is of consequence to the determ ination of the action more probable or less probable than it would be without the eviden ce.” Fed. R. Evid. 401. The Supreme Court has described the consideration of whether an expert’s testimony is relevant as one of “fit.” Daubert , 509 U.S. at 591. The reasoning or methodology underlying the expert’s opinion must be able to be properly applied to the facts in issue. Hollander v. Sandoz Pharm. Corp. , 289 F.3d 1193, 1204 (10th Cir. 2002). “A trial court must look at the logical relationship between the evidence proffe red and the material i ssue that evidence is supposed to support to determin e if it advances the purpose of aiding the trier of fact.” Bitler , 400 F.3d 1227 at 1234. “Eve n if an expert’s proffered evidence is scientifically valid and follows appropriately reliable me thodologies, it might not have sufficient bearing on the issue at hand to warrant a determination that it has relevant ‘fit.’” Id

. For what it is worth, we do not necessari ly quarrel with the tests Good performed to determine the levels of acceleration requir ed to cause buckles similar to Erica’s to unlatch in the laboratory. By testing on ly the buckle, Good performed a “component test[].” (R. Vol. 9 at 2438.) As Klima admi tted, component testing is a valid scientific method. But Klima also testified that once a component test is performed, its results must be applied to the whole vehicle setting, i.e., one must determine how the component will behave in the vehicle set ting. Good acknowledge d that point in his Rule 26 report when, after obtaining the results of his tests, he explained it was “important to make a- 24 - comparison with data from rollover crash tests to determine if the sc enarios measured in the laboratory could occur in the real world.” (R. Vol. 2 at 301.) Merely showing that similar buckles can be made to inertially unlatch in the laboratory under certain conditions is irrelevant as to whether a buckle will inertially unlatch in a rollover if the laboratory conditions are not present in (or ca nnot be accurately an d adequately related to) a rollover. Good failed to show the conditions he found ne cessary to inertially unlatch the buckles in the laboratory occurred or co uld have occurred on Erica’s buckle in this accident. At the time of his Rule 26 report, Good had not compared his test results to the accelerations present on Erica’ s buckle during the rollover accident or to rollover crash test data. He claimed the accelerations pr esent on Erica’s buckle during the accident could not be calculated after-the-fact and there was a lack of rollover crash test data for comparison. However, in his affida vit made in response to Ford’s Daubert motion, Good admitted he was aware of two rollover crash tests which measured buckle accelerations and in neither test did the levels of accelerati on reach the levels he id entified in his testing as necessary to cause inertial unlatch. Rath er than rely on the data from these tests (which did not support his in ertial unlatch opinion), Good co mpared his results to data from horizontal plane crash tests (which did, seemingly, support his inertial unlatch opinion). But he did not say how the accelerations present in planar crash tests were similar to those present in a rollover acciden t or that his comparison was “scientifically sound.” Dodge , 328 F.3d at 1222. Therefore, now here in his Rule 26 report did he demonstrate such comparison is scientifically valid. This lack of explanation alone- 25 - renders such comparison un reliable and irrelevant. See, cf., Champagne Metals v. KenMac Metals, Inc. , 458 F.3d 1073, 1079 (10th Cir. 2006 ) (holding district court did not abuse its discretion in excluding expert’s testimony where expert ’s opinion concerned one component of the aluminum market but his data was based on another component and he failed to explain that it was reasona ble to use one compon ent to opine on the other). Good did not correct that deficiency in his affidavit. There, he admitted to differences between planar and rollover crashes as to the acce lerations present in each. He then stated “there are characteristics of [accelerations] on buckl es that will be the same for planar and rollover crashes.” (R. Vol. 2 at 332.) Again, he did not explain what characteristics are the same. His concluso ry statement does nothing to demonstrate how a comparison to planar crash test s is scientifically reliable and relevant to form a basis for his inertial unlatch opinion. At the time the court ruled on Ford’s Daubert motion, there was no scientific link between Good’s tests results and those accel erations present or likely to have been present on Erica’s buckle in the subject acc ident. Thus, his opinion was based on mere speculation or assumptions that the levels of acceleration he found n ecessary to inertially unlatch similar buckles in the laboratory occurred or could have occurred on Erica’s buckle in the subject accident. See, cf., Truck Ins. Exch. v. MagneTek, Inc. , 360 F.3d 1206, 1213 (10th Cir. 2004) (concluding distri ct court did not abuse its discretion in excluding expert opinion that a component in a light fixture caused the fire because evidence showed the co mponent could not reach the necessary ignition temperature and- 26 - therefore expert’s opinion that component started fire could have on ly been based on his assumption that co mponent could reach the necessary te mperature). It was an abuse of discretion to deny Ford’s Daubert motion. Based on pretrial disclosure, Good’s inertial unlatch opinion should not have been allowed in evidence at trial. 1. Harmless Error The error in permitting Good’s testimony de spite the deficiencies in his Rule 26 report (as supplemented) could, conceivably, ha ve been harmless if the deficiencies were overcome by his trial testimony (assuming there we re no other pertinent objections). But that did not happen. Good’s fa ilure to compare his test results to the accelerations present on Erica’s buckle in the accident or to those reasonably expect ed to occur on a buckle in a rollover accident was not remedied at trial. At trial Good abandoned his reliance on ho rizontal plane crash tests and instead relied on Ziejewski’s testimony that accelerations of 100 to 200 g could occur in a rollover accident. But, as Good admitted on cross-examination, Ziejewski’s testimony concerned the accelerations exp ected to occur on the vehicl e structure during a rollover accident, not the accelerations necessarily presen t on the buckle. Good did not attempt to explain why similar accelerations would be present on the buckle. Good did testify that a study he conducte d in 2006 showed th at the accelerations measured at the seat base (where the seat bolts to the floor of the vehicle) were amplified by the time they reached the buckle via the seatbe lt stalk by 1.4 to 2.4. But he offered no evidence as to the levels of acceleration reas onably expected to oc cur on a seat base during a rollover accident. Moreover, and as Good admitted, depending on where the- 27 - acceleration occurred on the vehicle structure (which Ziejewski did not clarify in his testimony), it would have to travel to the seatbase. During this travel, Good conceded the acceleration could be amplifie d or dampened. Good presente d no evidence as to what 200 g’s of acceleration on the vehicle structure would be at the seat base. 19 Thus, even at trial, Good failed to link his test data to the accelerations reasonably expected to be present on a buckle during a rollover accident. Indeed, the only evidence at trial concerning the levels of acceleration likely to be present on a buckle during a rollover accident came from Klima, Fo rd’s expert. Klima testified the maximum vertical acceleration me asured on a buckle in a rollover and slam down crash test was 41 g and 70 g, respectiv ely. Hoffmans criticize Klima’s use of drop test data because Klima admitted a drop test is not similar to an object rolling along a ditch at more than 40 mph. But Klima’s testimony is not atissue; Hoffmans never sought to exclude it. In any event, Hoffmans take Klima’s testimony out of context. A drop test attempts to isolate one part of a rollover accident – when the vehicle slams down on its wheels. It also represen ts the moment in a rollover where seatbelt tension is at a minimum because the occupant s are being pushed down into their seats, unloading their seatbelts, a condition all expert s agreed is a prerequisite for inertial unlatch. 20 And Hoffmans’ theory at trial wa s that Erica’s buckle likely inertially

19 Klima’s drop test of the Mustang onto th e concrete slab had instrumentation at the seat bolt and the buckle assembly. The re sults indicated “that [vehicle] floor . . . amplification is not identified or viewed. There is even so me degradation of the impulse, even when [the imp act is] directly assaulting the floor.” (R. Vol. 13 at 3370.)

20 The experts seemed to agree that low be lt tension is a prerequisite for inertial- 28 - unlatched when the vehicle slammed down on its wheels (whether one or all four) because, in that position, Eric a would have been pushed do wn into her seat, unloading her seatbelt. Therefore, slam down testing is relevant. And both that testing and rollover testing did not reveal acceleratio ns on the buckles at the leve ls Good found necessary in the laboratory to cause inertial unlatch. Hoffmans again attempt to excu se Good’s failure to compar e his test results to the accelerations present in the accident or to ro llover crash test data generally because the accelerations present on Erica’ s seatbelt buckle cannot be calculated after-the-fact and there is a dearth of rollover crash test data. We accept that the accelerations present on Erica’s buckle during the accident cannot be ca lculated after-the-fact. We also recognize rollover crash tests are expensive to performand, as a result, very few have been performed. But these factors do not excuse Good’s failure to make the subject comparison when Good himself said such comparison is necessary. See Truck Ins. Exch. , 360 F.3d at 1213 (noting expert’s opinion did not meet his own standards of fire investigation). Hoffmans claim that Good did connect his testing to the actual rollover by testing the same type of buckle as th e one used by Erica. But ag ain, simply showing that the same type of buckle inertially unlatches in ce rtain conditions in a laboratory is irrelevant without demonstrating these co nditions occurred or were likel y to occur in the subject accident. unlatch. Apparently this is due to the lackof tension on the belt web. Tension on the web increases the acceleration le vels required for unlatch.- 29 - Hoffmans spend much of th eir brief emphasizing Good’s qualifications and the evidence they presented to dem onstrate that Erica was wearing her seatbelt. But Ford has never contested Good’s qualificat ions, nor do we. And while Rule 702 requires an expert to be qualified, it also requires his opinions to be reliable and relevant. Therefore, it is not enough simply to demonstrat e an expert is qualified. See Goebel , 346 F.3d at 992 (“It is critical that the district court determine wh ether the evidence is genuinely scientific, as distinct from being unscientific speculation offe red by a genuine scie ntist.”) (quotations omitted). We assume Erica was wearing her seatbelt at the time of the accident (a fact contested at trial) and there was no dispute that Erica’s seatbelt was found unlatched after the accident. Nevertheless, Hoffmans were re quired to prove the un latch occurred as a result of a defect. See Mile Hi Concrete, Inc. v. Matz , 842 P.2d 198, 205 (Colo. 1992) (“Regardless of whether a product liability acti on is grounded in ne gligence or strict liability, a plaintiff must prove th at the product was defective.”); see also Shultz v. Linden-Alimak, Inc. , 734 P.2d 146, 148-49 (C olo. App. 1986) (stati ng “strict liability . . . is not the equivalent of absolute liability, an d the occurrence of an accident in connection with the use of a product does not nece ssarily make the product defective and unreasonably dangerous”; the pl aintiff must show the manufacturer’s defect caused his injuries). 21 Evidence of Erica’s seatbelt use, ev en coupled with an unexplained unlatch,

21 In this diversity case, the substantive law of the forum state, Colorado, governs our analysis of the underlying claims. Kansas Penn Gaming v. HV Prop. of Kan. , 662 F.3d 1275, 1284 (10th Cir. 2011).- 30 - does not establish a defect. Hoffmans rely on Ziejewski’s testimony th at the accelerations present in the subject rollover could have easily exceeded se veral hundred g’s. As stated above, that testimony does not help because it concerned the accelerations expected to be present on the vehicle structure, not the buckle. Finally, Hoffmans rely on Klima’s testim ony that accelerations as high as 150 g and 200 g can be present during a rollover. Th e 150 g testimony is take n out of context. During one of the drop tests testified to by Klima, an acceleration of 150 g was measured on the tire spindle. However, the accelerati on measured at the buckle was only 33 g. And, as Klima explained on redirect ex amination, the 200 g acceleration occurred laterally, not vertically, as required to inertia lly unlatch an end-release buckle. Hoffmans did not rebut that testimony at trial but now claim the direction of force is irrelevant, saying: Because a rollover [accident] is by nature a random event in which unlatching [acceleration] ca n be exerted in any dire ction, the existence of 207 gs in the testing dispels Ford’s argument regardless of the direction in which the unlatching [acceleration] oc curred here. In the bouncing pattern in Klima’s test, the unlatching [accel eration] happened in the lateral direction. In another random boun cing pattern, it can happen in another direction . . . . In reality, as the experts in this ca se testified repeatedly, rollovers are unrepeatable events; therefore, [an accele ration] that occurs in any direction in a test could also occur in a di fferent direction depending on how the vehicle bounces along the grou nd during the rollover sequence. (Appellee’s Br. at 53-54.) As Ford conten ds, this argument is the “ipse dixit” of Hoffmans’ counsel. (Appellant’s Reply B r. at 11.) Hoffmans presented no expert- 31 - testimony that because a lateral acceleration of 200 g was present in a rollover crash test, that same level of acceleration c ould be present in a vertical direction. And the direction of the acceleration does matter. Good himself testified as much. Hoffmans also contend that even a ssuming Good’s testimony was improperly admitted, there was sufficient other evidence for th e jury to find Erica’s seatbelt buckle was defective because it inertia lly unlatched. They rely ma inly on Ziejewski’s testimony and Ford’s World Wide Design Standard. Neither Ziejewski’s testimony nor Ford’s Worldwide Design Standard, alone or in comb ination, are sufficient to establish by a preponderance of the evidence that Erica’s seatbelt was defective. See Mile-Hi , 842 P.2d at 205. Ziejewski’s expertise was limited to the field of biomechanics, i.e., the study of how the human body moves in re sponse to forces. At trial, when asked whether he had an opinion as to whether Eri ca’s seatbelt was defective, Zi ejewski said it was defective “[f]rom [a] biomechanical pers pective” because it should not have unlatched during the accident. (R. Vol. 8 at 2219.) On cross- examination, however, Ziejewski admitted he was not a seatbelt design expert, he had not reviewed any seatbelt designs or tests to reach his opinion, and his opinion that Erica’ s seatbelt was defective was limited to the fact it came unlatched and theref ore could not offer her protection. He also said it was not his job, but that of other experts, to determine how the seatbelt unlatched. Therefore, Ziejewski’s testimony could no t and did not provide any ev idence that Erica’s buckle became unlatched due to inertial unlatch. Ford’s Worldwide Design Standard states in relevant part: “Self-release [of the- 32 - buckle] shall not occur either with the belt slack or under th e influence of inertia. The buckle, when slack or under tension, shall remain closed whatever the position of the vehicle.” (R. Vol. 2 at 335.) If Erica’s se atbelt buckle inertially unlatched, it was not in compliance with that standard . But the premise begs the relevant question—whether Erica’s seatbelt buckle did inertially unlatch due to a product defect. The Worldwide Design Standard does nothing to inform that debate. Upon our extensive review of the record, the only evid ence supporting Hoffmans’ inertial unlatch theory, and th erefore, that Erica’s buckle was defective, was Good’s testimony. Thus, the erroneous admissi on of his testimony wa s not harmless. See Goebel , 215 F.3d at 1089 (“Erroneous admission of evidence is harmless only if other competent evidence is suffici ently strong to permit the conclusion that the improper evidence had no effect on the decision.”) (quotations omitted). This is true even assuming, as the jury obviously found, Eric a was wearing her seatbelt. Further assuming the seatbelt came unlat ched during the accident does not help. Res ipsa loquitur does not apply here. In the absence of Good’s test imony, Hoffmans’ evidence was insufficient. Ford’s Rule 50 motions shou ld have been granted. C. Remedy This leads us to determini ng the appropriate remedy. Fo rd moved in the district court for judgment as a matter of law or in th e alternative a new trial. When an appellate court determines the district court is in a be tter position to decide whether to grant a new trial or enter judgment for the defendant, it should remand the matter to the district court for that decision. Weisgram v. Marley Co. , 528 U.S. 440, 444 ( 2000). However, when- 33 - the appellate court concludes that further proceedings are unwarranted because the loser on appeal has had a full and fair opportunity to pr esent the case, including arguments for a new trial, the appellate court may appropriate ly instruct the district court to enter judgment against the jury-v erdict winner. Appellate authority to make this determination is no less wh en the evidence is rendere d insufficient by the removal of erroneously admitted te stimony than it is when the evidence, without any deletion, is insufficient. Id. ; see also Neely v. Martin K Eby Constr. Co., 386 U.S. 317, 329 (1967). A remand is unnecessary here: Ford is entitled to judgment as a matter of law. Hoffmans were aware before and during tr ial that Ford contested the reliability and relevancy of Good’s inertial unlatch opini on and the testing upon which it was based. They “made no attempt to add or substitute other evidence.” Weisgram, 528 U.S. at 456. Nor have they offered specific grounds for a new trial with this Court in the event the judgment is reversed. Id. We acknowledge that appelle es, like Hoffmans, are placed in an awkward position when , while seeking to uphold the verd ict, they must also provide alternative arguments for a new trial in the event the verd ict is reversed. Id. at 455 n.11. Nevertheless, alternative arguments are commonplace in the law and Weisgram and Neely imply, if not directly instruct, such al ternative arguments are necessary in this situation. Weisgram , 528 U.S. at 455 n.11; Neely , 386 U.S. at 328-29. Here, because Hoffmans have had a “full and fair opportu nity to present the case,” we find it appropriate to remand with instru ctions for the district court to enter judgment as a matter of law for Ford. Weisgram , 528 U.S. at 444. We are not unsympathetic to Erica’s cond ition. But the law, not sympathy, guides our decision. The law requires an expert’s op inion to be reliable and relevant. Good’s- 34 - inertial unlatch opinion was neither. REVERSED and REMANDED for entry of judgment in favor of Ford.
Entered by the Court: Terrence L. O’Brien United States Circuit Judge10-1137, Hoffman v. Ford Motor Company McKAY , dissenting. The standard which governs this appeal is the measure of deference we owe the trial court’s ruling on a Daubert motion. Of course, it is standard fare that “we must afford substantial deference to the district court’s application of Daubert .” Hollander v. Sandoz Pharm. Corp. , 289 F.3d 1193, 1204 (10th Cir. 2002) (emphasis in original). As the Supreme Court has held, “the trial judge must have 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). When reviewing scientific reliability in Hollander , after citing numerous factors to be considered, we held that “[t]he list is not exclusive, and district courts applying Daubert have broad discretion to consider a variety of other factors.” Hollander , 289 F.3d at 1205. We added that “the scope of our review is quite narrow” and, further, that the proper application of our Daubert review “may produce a counter-intuitive effect: different courts relying on essentially the same science may reach different results.” Id. at 1206. While these holdings are in cases reviewing the exclusion, rather than the admission, of expert testimony, we noted in Bitler v. A.O. Smith Corp. , 400 F.3d 1227, 1232 (10th Cir. 2004), that “[o]ur standard of review of a trial court’s factual findings in pursuit of its gatekeeping role does not vary when examining exclusion or admission of expert testimony.” We further stated that, although the district court “must, on the record[,] make some kind of reliability determination, we recognize the wide latitude adistrict court has in exercising its discretion to admit or exclude expert testimony.” Id. (internal quotation marks and citation omitted) (emphasis in original). In the matter of fitting the expert’s tests to the facts of the case at hand, much emphasized by the majority, I note our holding in Bitler that “testing is not necessary in all instances to establish reliability under Daubert, ” even if further tests would establish causation to a higher degree of certainty. Id. at 1236. While the majority makes much of the fact that the tests of Plaintiff’s expert were not an exact replication of the circumstances of the accident, Bitler makes clear that it is within the discretion of the trial court to conclude that tests are sufficiently similar to reasonably infer the ultimate conclusion. Id. While the majority’s opinion does an excellent job of cross-examining Plaintiff’s expert and summing up, I cannot say I have a firm conviction that the trial court abused its broad discretion in denying Defendant’s motion and admitting the testimony. I am persuaded that the trial court was well within its broad discretion when it held: [O]ther than accusing Good of having concocted a “worse case scenario” by virtue of his various testing choices, defendants made no effort to quantify the differences between Good’s laboratory results and real world rollover crashes. Stated differently, although defendants insist that the variables they identify matter, they do not show how much they matter, much less that they matter enough to completely undermine the reliability and relevance of Good’s opinions such that his testimony must be excluded in toto . Where the test is substantial similarity, such proof clearly is relevant. Nor is this a case in which Good’s testing methods are so patently inadequate that his conclusions are nothing more than rank speculation or subjective belief. Essentially, the alleged deficiencies defendants identify go to the weight, not the admissibility of Good’s expert opinions. Any alleged

-2-shortcomings in those opinions can be more than adequately addressed by cross-examination and competing evidence. (R. Vol. 2 at 409-10 (footnote and citations omitted).) I would affirm the verdict in this case.

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