UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-60515 Summary Calendar _____________________

DAVID A. HAMMOND,

Plaintiff-Appellant,

versus

COLEMAN COMPANY, The Coleman Company, Inc.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (2:98-CV-123-PG) _________________________________________________________________ February 1, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

David A. Hammond appeals the summary judgment dismissing his

product liability action against The Coleman Company, Inc., in

which he claimed, inter alia, that, as a result of a manufacturing

defect, he sustained injuries resulting from the explosion of a

lantern manufactured by Coleman. Hammond contends that the

district court reversibly erred by excluding the opinion of his

expert witness and by granting summary judgment for Coleman. See

Hammond v. Coleman Co., Inc.,

(S.D. Miss. 1999).

At the outset, we reject Hammond’s contention that, for expert

testimony evidentiary rulings concerning a summary judgment motion,

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the de novo standard of review for such judgments supercedes the

abuse of discretion standard of review for rulings under FED. R.

EVID. 702. It is well-settled that exclusion of expert testimony

under that Rule is reviewed only for an abuse of discretion. See,

e.g., Boyd v. State Farm Ins. Cos.,

(5th Cir.

1998) (“With respect to expert testimony offered in the summary

judgment context, the trial court has broad discretion to rule on

the admissibility of the expert’s evidence and its ruling must be

sustained unless manifestly erroneous”) (emphasis added), cert.

denied, ___ U.S. ___,

(1999).

Only after the evidence properly in the summary judgment

record is defined do we conduct our de novo review. See Munoz v.

Orr, ___ F.3d ___, ___,

(5th Cir. 2000) (“We

... review the district court’s exclusion of plaintiffs’ expert’s

evidence ... for abuse of discretion, and then review de novo the

grant of summary judgment based on the evidence properly before the

district court”); Skotak v. Tenneco Resins, Inc.,

(5th Cir.), cert. denied,

(1992). For that de novo

review, the summary judgment record is viewed in the light most

favorable to the non-movant. E.g., Wenner v. Texas Lottery Comm’n,

, 324 (5th Cir. 1997), cert. denied,

(1998).

We also reject Coleman’s assertion that the summary judgment

is based on the alternative ground that, even considering the

expert’s opinions, Coleman was nevertheless entitled to judgment on

the basis that Hammond failed to offer any evidence that the

2 lantern was in substantially the same condition as when it left the

manufacturer. To the contrary, the court stated that, “[i]f that

were the only deficiency in [Hammond’s] proof”, it would follow a

decision by the Mississippi Supreme Court in which it “concluded

that circumstantial evidence was sufficient for a jury ... to

conclude that it was more probable than not that the [product]

immediately prior to the accident was in substantially the same

condition as when it left the hands of [the manufacturer]”.

Hammond,

(internal quotation marks and

citation omitted).

Pursuant to a very detailed and painstaking examination of the

relevant materials, the district court concluded that the expert’s

methodology and the basis for his opinions did not satisfy the

criteria of Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993), and Kumho Tire Co., Ltd. v. Carmichael,

(1999), Hammond,

, and excluded his

opinions because they “are too speculative to be admissible under

Rule 702".

.

Based on our review of the expert’s reports and deposition,

and the district court’s opinion,

, it is apparent

that the district court properly exercised its gatekeeping role

under Daubert and Kumho. Restated, the ruling was not manifestly

erroneous. Therefore, we find no abuse of discretion in the

district court’s exclusion of the expert’s opinions. And, because

Hammond offered no other evidence to support his claim of a

manufacturing defect, summary judgment was proper. See Topalian v.

3 Ehrman,

(5th Cir.) (“[T]he nonmovant must come

forward with evidence establishing each of the challenged elements

of its case for which the nonmovant will bear the burden of proof

at trial.”), cert. denied,

(1992).

AFFIRMED

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