UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1505

TROY TESTERMAN,

Plaintiff - Appellant,

versus

RIDDELL, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the Western

District of Virginia, at Danville. Jackson L. Kiser, Senior

District Judge. (CA-03-71-4)

Argued: December 1, 2005 Decided: January 6, 2006

Before LUTTIG and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Richard Charles Armstrong, RICHMOND & FISHBURNE,

Charlottesville, Virginia, for Appellant. John Michael Perry, Jr.,

EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appellee. ON

BRIEF: Christine Thomson, RICHMOND & FISHBURNE, Charlottesville,

Virginia, for Appellant. Henry M. Sackett, III, EDMUNDS &

WILLIAMS, P.C., Lynchburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Troy Testerman badly injured his shoulder during a

college football game. At the time Testerman was wearing shoulder

pads made by Riddell, Inc. that were apparently selected for him by

a Riddell employee. Testerman sued Riddell on the theory that

under Virginia law the company negligently fit him with pads that

were too small to protect him during the game. The district court

excluded Testerman’s primary expert witness, granted summary

judgment in favor of Riddell, and declined to reconsider these

decisions after Testerman learned that Riddell had failed to timely

disclose in discovery an enhanced video of the injury. Testerman

appeals these rulings, and we now affirm.

I.

Testerman was co-captain of the Averett University

football team in Danville, Virginia. Riddell is an Illinois

corporation that makes shoulder pads and football helmets. On

August 31, 2002, Averett played in a scrimmage game against another

team. Testerman caught a pass; as he ran with the ball at least

three players hit him, and he fell to the ground, landing on his

left side. Testerman suffered a severe fracture of his left

scapula, or shoulder blade, requiring extensive surgery and

physical therapy. The injury permanently limited his ability to

move his arm fully and to lift heavy objects.
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During the game Testerman was wearing Riddell “Power 34”

shoulder pads. About two weeks before the scrimmage, a

representative of Riddell, Christopher Williams, had fit some

members of the Averett team with Riddell pads. Testerman alleged

that Williams selected the pads and fit him for size. Although

Williams could not recall fitting Testerman, Riddell stipulated to

Williams’s involvement for pre-trial purposes.

In August 2003 Testerman sued Riddell in the U.S.

District Court for the Western District of Virginia, invoking

diversity jurisdiction and alleging a negligence claim on the

theory that Williams, Riddell's agent, carelessly fitted Testerman

“with pads that were inadequate, inappropriate, [and] too small.”

J.A. 27-28. Testerman designated Kent Falb, a former head athletic

trainer for the Detroit Lions, as its principal expert. (In

opposing summary judgment Testerman also offered a rebuttal expert,

Joe Gieck.) Falb relied on deposition transcripts, a videotape of

the scrimmage provided by Averett, and his own “knowledge and

experience with respect to the fitting and use of football pads and

the injuries incurred in the game of football.” J.A. 39. While

Falb’s expert report concluded that a blow from the back caused

Testerman's scapula fracture, Falb later changed his mind and

testified at his deposition that impacts to the front and side of

the shoulder caused the injury.
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Riddell designated two experts: P. D. Halstead, director

of a sports biomechanics research lab at the University of

Tennessee, and Chris Van Ee, who holds a Ph.D. in biomechanical

engineering. Riddell enhanced the video image so that its experts

had access to a slow motion depiction of the scrimmage, but Riddell

did not provide the enhanced images to Testerman’s counsel until

the combined hearing on Riddell’s motion in limine and motion for

summary judgment.

The district court granted Riddell’s motion in limine

excluding Falb's expert testimony under Federal Rule of Evidence

702. The court concluded that Falb’s testimony as to the cause of

injury was unreliable and therefore inadmissible. After also

excluding the testimony of Testerman’s treating physician, the

district court granted Riddell's motion for summary judgment on the

ground that “[w]ithout the testimony of Falb and [the physician],

Plaintiff cannot establish a prima facie case of proximate

causation against Riddell.” J.A. 577.

Testerman then moved for alteration or amendment of the

judgment, offering a new affidavit from Falb based on a review of

the enhanced videotape and excerpts of his deposition transcript

not previously presented. Concluding that these new materials did

not “account for new evidence not available at trial,” the district

court concluded that there was no reason to reconsider its judgment

and denied the motion. J.A. 723-28. Testerman appeals. We apply
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state substantive law and federal procedural law in this diversity

case. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427

(1996).

II.

A.

Testerman’s first contention is that the district court

erroneously excluded his expert’s testimony. Federal Rule of

Evidence 702, governing such testimony, provides:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence

or to determine 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 facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably

to the facts of the case.

Fed. R. Evid. 702. The rule requires trial court judges to serve

as gatekeepers for expert testimony and “ensure that any and all

[such] testimony is not only relevant, but reliable,” Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993), but the focus

of the inquiry “must be solely on principles and methodology, not

on the conclusions that they generate.” Id. at 595; see Cooper v.

Smith & Nephew, Inc., 259 F.3d 194, 199 n.1 (4th Cir. 2001)

(understanding the post-Daubert amendments to Rule 702 as leaving

unaltered Daubert’s standard for assessing reliability). District
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court evidentiary decisions are reviewed for abuse of discretion.

United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).

The district court identified three key questions that

Falb was unable to answer definitively: (1) which blow caused

Testerman’s injury; (2) whether the area of impact was covered by

the shoulder pad; and (3) whether the injury would have occurred,

or would have been substantially mitigated, had Testerman been

wearing different pads. Testerman argues that the district court

improperly concentrated on Falb’s conclusions rather than on the

reliability of the methods Falb used to reach those conclusions.

We disagree. It is true that the district court viewed

the videotape independently and cited the opinions of Riddell’s

expert Halstead in assessing Falb’s reliability, but this analysis

did not constitute impermissible weighing of evidence. Rather, the

district court looked to the other evidence simply to identify a

cause for Testerman’s injury not attributable to Riddell. This

evidence raised the prospect that Testerman was injured by a blow

to an area that would have been unprotected even by correctly

fitted pads. Such a blow could have come from either another

player or from hitting the ground. Falb’s methods for forming his

opinion did not allow him to rule out this potential alternate

cause with any degree of precision.

It was appropriate for the district court to concentrate

on this weakness in Falb’s methods as well as on the other problems
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it enumerated when it held Falb’s testimony to be inadmissible.

Thus, the district court properly emphasized the unreliability of

Falb’s methods even though it looked to the conclusions those

methods generated as evidence of unreliability. In granting

Riddell’s motion in limine to exclude Falb’s testimony, the

district court therefore did not abuse its discretion.

B.

Testerman’s second contention is that the district court

erred in granting summary judgment in Riddell’s favor. Summary

judgment is appropriate when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). We review de novo a

district court’s grant of summary judgment. Sunrise Corp. v. City

of Myrtle Beach, 420 F.3d 322, 327 (4th Cir. 2005). Although all

justifiable inferences are drawn in favor of the party opposing

summary judgment, “[c]onclusory or speculative allegations do not

suffice” to create a genuine issue of material fact. Thompson v.

Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)

(punctuation omitted).

The district court granted summary judgment to Riddell

because “[w]ithout the testimony of [the experts], Plaintiff cannot
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establish a prima facie case of proximate causation against Riddell

. . . . [T]here is no admissible evidence to support the crucial

finding that the injury would not have occurred, or would have been

less severe, had the pads been properly fitted.” J.A. 577. We

affirm because well-established Virginia tort law supports the

district court’s conclusion that Testerman could not prevail at

trial without offering expert testimony on causation.

“[T]o warrant a finding that negligence . . . is the

proximate cause of an injury, it must appear [(1)] that the injury

was the natural and probable consequence of the negligence or

wrongful act, and [(2)] that it ought to have been foreseen in the

light of the attending circumstances.” Wyatt v. Chesapeake &

Potomac Tel. Co., 158 Va. 470, 477-78, 163 S.E. 370, 372 (1932).

Satisfaction of the first component (but for, or factual causation)

on summary judgment required Testerman to show that there was

enough evidence for trial indicating that properly fitting pads

would have absorbed enough of the force from his collision and fall

to prevent or significantly reduce the damage to his shoulder.

Since no witness observed the circumstances of the injury with

sufficient detail, Testerman needed an expert witness to offer this

evidence. But in building his affirmative case, he lacked such an

expert once Falb was excluded. The district court was therefore

correct in entering summary judgment for Riddell.
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C.

Testerman’s third contention is that the district court

erred in denying his motion for relief under Federal Rule of Civil

Procedure 59(e). Such relief may “be appropriate to account for

new evidence not available at trial. In that circumstance a party

must produce a legitimate justification for not presenting the

evidence during the earlier proceeding.” Small v. Hunt, 98 F.3d

789, 798 (4th Cir. 1996) (citations and punctuation omitted). We

review the denial of a Rule 59(e) motion for abuse of discretion.

United States ex rel. Becker v. Westinghouse Savannah River Co.,

305 F.3d 284, 290 (4th Cir. 2002).

Preliminarily, we note that Riddell provided no

explanation for its failure to disclose the existence of enhanced

videotape before the hearing on the in limine and summary judgment

motions. This failure meant that while Riddell’s experts had

timely access to the videotape, Testerman’s expert did not. A

report disclosing an expert’s anticipated testimony to the opponent

“shall contain a complete statement of all opinions to be expressed

and the basis and reasons therefore; the data or other information

considered by the witness in forming the opinions; [and] any

exhibits to be used as a summary of or support for the opinions.”

Fed. R. Civ. P. 26(a)(2)(B). Here, a detailed description of the

“data or other information” the expert considered would have

demonstrated greater respect for the discovery process than a vague
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description. For example, Halstead's report should have explained

that Halstead relied on numerous slow-motion and magnified images

of the scrimmage, rather than simply saying that he used “[v]ideo

of the injury play.” J.A. 163. 

Although we do not condone Riddell’s tardiness in

producing the enhanced videotape, we are unable to conclude that

the district court erred in declining to revisit its prior ruling.

Rule 59(e) relief is rarely appropriate for a claimant who presents

new evidence that, even if presented in the earlier proceeding, had

no demonstrated probability of changing the outcome. The affidavit

Falb submitted on reviewing the enhanced videotape indicates that

even if he had examined the videotape before the hearing, his

conclusion about the precise cause of Testerman’s injury would not

have been affected.

In his affidavit Falb stated: “In my opinion, the

videotape prepared by the defense . . . does not have slow motion

depictions of the blow which caused Mr. Testerman’s injuries, as

the slow motion portions of the videotape commence just after that

blow occurred.” J.A. 587 ¶ 8. This sentence is the only one in

the affidavit that describes the significance of the enhanced

videotape. Nowhere does Falb declare that review of the videotape

in any way affected the outcome of his reasoning. Thus, the

district court did not err because Testerman’s motion did not point
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to newly discovered evidence that would have justified altering or

amending the judgment.

The judgment is affirmed.

AFFIRMED