United States Court of Appeals Fifth Circuit F I L E D In the December 18, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 06-60295 Summary Calendar _______________

SHELTER INSURANCE COMPANIES; RICKIE CHADWICK; SANDRA CHADWICK,

Plaintiffs-Appellants,

VERSUS

FORD MOTOR COMPANY,

Defendant-Appellee.

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Appeal from the United States District Court for the Northern District of Mississippi m 2:03-CV-150 ______________________________

Before SMITH, WIENER, and OWEN, Plaintiffs Shelter Insurance Company and Circuit Judges. Rickie and Sandra Chadwick appeal the exclu- sion of the expert testimony of Stephen Miller PER CURIAM:* based on FED. R. EVID. 702 and Daubert v. Merrell Dow Pharms., Inc.,

(1993), and the district court’s decision to ex- clude the testimony without conducting an in * limine hearing. Finding no abuse of discretion, Pursuant to 5TH CIR. R. 47.5, the court has we affirm. determined that this opinion should not be pub- lished and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I. under rule 702 and Daubert, Miller was not A fire destroyed much of the Chadwicks’ qualified to render an expert opinion on house and their cars, including a 1993 Lincoln whether the Town Car’s switch caused the Town Car. Plaintiffs claim the fire originated fire. in the engine compartment of the Town Car, which was manufactured by defendant Ford Miller had a great deal of experience as an Motor Company (“Ford”). The fire was start- automotive technician, inspector, and instruc- ed, plaintiffs allege, by a malfunction in the tor and had investigated approximately 190 Town Car’s speed control deactivation switch. fires. But the court found that such training and experience qualified him to opine only Plaintiffs cite Ford’s recall of all Town Cars about potential causes of automobile fires produced between November 4, 1991, and based on the mechanical and electrical systems November 30, 1992, at the Wixon assembly of the car. He did not have sufficient knowl- plant for a probable defect in the speed control edge, skill, experience, training, or education deactivation switch that could cause fires while in fire science to render an expert opinion on the vehicle was not being used. The Chad- the actual causes of automobile fires. The wicks’ Town Car was built ten days after the holding was based on Miller’s admissions that recall period, but plaintiffs contend that the re- he had no training or experience in fire science. call dates were chosen at random by Ford. Five claims are asserted: product liability, res After Miller’s testimony concerning the ipsa loquitur, negligence, breach of implied fire’s origin was excluded, the court granted warranty of merchantability, and breach of the summary judgment for Ford. It found that the implied warranty of fitness for a particular plaintiffs’ case required a showing that, with a purpose. reasonable scientific certainty, the Town Car’s speed control deactivation switch caused the The plaintiffs designated a fire cause and fire and that without Miller’s testimony they origin expert who opined that the fire started could not establish that fact. The plaintiffs in the general vicinity of the Town Car. They raise two issues on appeal: first, whether Mil- then designated Miller as an expert regarding ler’s testimony was improperly excluded; and the specific cause and origin of the fire and the second, whether the court should have held an allegedly defective nature of the speed control in limine hearing before excluding the evi- deactivation switch; Miller stated that the fire dence. started at the Town Car’s switch and that the switch was defective. II. The admissibility of expert testimony is The court found that Miller based his opin- governed by rule 702, which requires courts to ion on only two premises. First, Ford recalled ensure that expert testimony “rests on a reli- some Town Cars with defective switches. able foundation.” Daubert,

. Second, Ford and others have designed speed Admissibility “is governed by the same rules, control deactivation switches that do not cause whether at trial or on summary judgment.” fires. The court found that Miller was quali- First United Fin. Corp. v. U.S. Fid. & Guar. fied to provide expert testimony on whether Co.,

(5th Cir. 1996). Un- the switch was defectively designed but that, der Daubert, district courts act as gatekeepers

2 and ensure that expert testimony is sufficiently burn patterns, Miller replied that if one wanted reliable before it is admitted. In this role, the a “professional opinion,” he would want to court “must make a preliminary assessment of consult the plaintiffs’ fire origin expert, be- whether the reasoning or methodology under- cause “I’m not really qualified to do it, lying the testimony is scientifically valid and of butSSunfortunately, sometimes, we have to do whether that reasoning or methodology prop- things we’re not qualified to do, and that’sSSif erly can be applied to the facts in issue.” Bur- this vehicle wasn’t inside a structure, oh, it leson v. Tex. Dep’t of Crim. Justice, 393 F.3d would be so much simpler.” Miller stated that 577, 583-84 (5th Cir. 2004) (internal quota- “I don’t have any fire science or anything like tions omitted). that.” When asked whether his analysis on the burn patterns and origin of the fire was sup- We review the exclusion of expert testi- ported by professional literature, he replied, mony under Daubert for abuse of discretion. Pipitone v. Biomatrix, Inc.,

, 243 No. Just basically what I’ve seen when you (5th Cir. 2002). “Because a district court has light a fire in the fireplace and things. I broad discretion in deciding the admissibility just SSfire moves to oxygen. And, again, vel non of expert testimony, we will not find that’s my opinion. I don’t have any exper- error unless the ruling is manifestly errone- tise in this. That’s just the way my lay- ous.” Guy v. Crown Equip. Corp., 394 F.3d man’sSSI was just trying to explain what I 320, 325 (5th Cir. 2004) (citing Gen. Elec. thought I saw here. But, no, that may not Co. v. Joiner,

(1997)). even be accurate as far as I know. You’ll have to ask a fire person about that. III. The district court did not abuse its discre- When an expert witness honestly and forth- tion. To survive summary judgment, plaintiffs rightly testifies that he is not qualified in a par- had to demonstrate that the fire was caused by ticular area, it is not an abuse of discretion for the Town Car’s defective switch and, corre- the court to find that the witness is unqualified, spondingly, that the fire originated at the under Daubert, to provide an expert opinion in switch. The only testimony offered to prove that area and to exclude such testimony. this fact was Miller’s expert opinion. Therefore, the court did not abuse its discre- tion in deciding to exclude Miller’s testimony The court correctly found that Miller pos- about the fire’s origin. sesses impressive credentials and experience in automotive mechanics and electrical systems. IV. But it also correctly found that he was not In regard to their contention that an in lim- qualified to opine about the precise cause of ine hearing was necessary, plaintiffs do not the fire and the area of the car in which it or- direct us to a single precedent from this court, iginated. The court’s finding did not require and none of the opinions they cite from other complex reasoning, because Miller, in deposi- courts is persuasive. One of those opinions tion, repeatedly testified to his lack of experi- succinctly states the law: “An in limine hearing ence in fire science. will obviously not be required whenever a Daubert objection is raised to a proffer of ex- When asked about the interpretation of pert evidence. Whether to hold one rests in

3 the sound discretion of the district court.” Pa- dillas v. Stork-Gamco, Inc.,

(3d Cir. 1999). Here the issue was thoroughly briefed by both parties, and it was not an abuse of court’s discretion to exclude the testimony without first holding an in limine hearing.

AFFIRMED.

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