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`PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 20-1411
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`ANDREA SARDIS, As Administrator of the Estate of Evangelos Sardis, Deceased,
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` Plaintiff – Appellee,
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`v.
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`OVERHEAD DOOR CORPORATION,
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` Defendant – Appellant.
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`------------------------------
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`PRODUCT LIABILITY ADVISORY COUNCIL, INC.,
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` Amicus Supporting Appellant.
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`
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`Appeal from the United States District Court for the Eastern District of Virginia, at
`Richmond. John A. Gibney, Jr., District Judge. (3:17-cv-00818-JAG)
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`Decided: August 20, 2021
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`Argued: March 11, 2021
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`Before GREGORY, Chief Judge, AGEE, and DIAZ, Circuit Judges.
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`Reversed and remanded with instructions by published opinion. Judge Agee wrote the
`opinion, in which Chief Judge Gregory and Judge Diaz joined.
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`ARGUED: Sarah Virginia Bondurant Price, MCGUIREWOODS LLP, Richmond,
`Virginia, for Appellant. L. Steven Emmert, SYKES, BOURDON, AHERN & LEVY, PC,
` ON BRIEF:
` Michael W. Stark,
`Virginia Beach, Virginia, for Appellee.
`MCGUIREWOODS LLP, Richmond, Virginia; Martin A. Conn, Matthew J. Hundley, Lisa
`M. McMurdo, MORAN REEVES & CONN PC, Richmond, Virginia, for Appellant. Peter
`C. Grenier, GRENIER LAW GROUP PLLC, Washington, D.C.; Andrew G. Slutkin, Ethan
`Nochumowitz, SILVERMAN THOMPSON SLUTKIN & WHITE, Baltimore, Maryland,
`for Appellee. Robert L. Wise, Jason R. Hodge, Richmond, Virginia, Susan E. Burnett,
`BOWMAN AND BROOKE LLP, Austin, Texas, for Amicus Curiae.
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`2
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`AGEE, Circuit Judge:
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`Federal Rule of Evidence 702 appoints trial judges as “gatekeepers of expert
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`testimony” to protect the judicial process from “the potential pitfalls of junk science.”
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`United States v. Bonner, 648 F.3d 209, 215 (4th Cir. 2011). If a trial court abdicates that
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`duty by opening the gate indiscriminately to any proffered expert witness––particularly
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`one with whom it recognizes “legitimate concerns,” J.A. 287––it risks exposing jurors to
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`“dubious scientific testimony” that can ultimately “sway[]” their verdict, Nease v. Ford
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`Motor Co., 848 F.3d 219, 231 (4th Cir. 2017) (quoting In re Zurn Pex Plumbing Prods.
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`Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011)). That risk is notably amplified in products
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`liability cases, for “expert witnesses necessarily may play a significant part” in establishing
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`or refuting liability. Chase v. Gen. Motors Corp., 856 F.2d 17, 20 (4th Cir. 1988).
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`Appellee Andrea Sardis, in her capacity as the Administrator of the Estate of her
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`late husband, Evangelos Sardis (“the Estate”), asserted various products liability claims
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`against Appellant Overhead Door Corporation (“ODC”) relating to Mr. Sardis’ tragic death
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`in a work-related accident in June 2016. But the only probative evidence supporting the
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`Estate’s claims came from two expert witnesses, neither of whom offered relevant or
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`reliable opinions. Nonetheless, the district court permitted the jurors to hear their
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`testimony, finding that cross-examination was the proper, and only, tool to vet any
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`relevance or reliability factors. On the basis of that testimony, the jury awarded the Estate
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`a multi-million-dollar verdict.
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`That verdict is the result of the district court’s abuse of discretion in admitting the
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`Estate’s expert testimony. Without it, the Estate offered insufficient admissible evidence
`3
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`as a matter of law to prevail on any of the four claims submitted to the jury. We therefore
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`reverse the judgment in this case, and remand with instructions that judgment be entered
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`in favor of ODC as to each of the Estate’s claims.
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`I.
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`A.
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`ODC designs and manufactures garage doors and the metal hoods those doors are
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`installed in, and then sells these products through a network of independent distributors.
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`ODC also designs and manufactures the packaging used for shipping these products. The
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`packaging––not the garage doors or hoods––is the focus of this case.
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` For thirty years, until 2014, ODC shipped its garage door hoods in rectangular
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`prism-shaped containers. The entire container was made of a double-wall corrugated
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`material, and the two “ends” of the container (the two square ends to which all four of the
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`rectangular “sides” connected) contained handhold “punchouts” in the material. ODC
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`intended for workers to use, and workers in fact used, these handholds to push and pull the
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`containers as necessary for storage and transit. ODC never received a report of a worker
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`ripping a handhold, but it did receive complaints that the corrugated material would
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`collapse during transit, damaging the hoods inside.
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`In response to these complaints, ODC redesigned its garage door hood containers in
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`December 2014. It kept the same rectangular prism shape, but made two important
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`modifications. First, it replaced the double-wall corrugated material on the sides with
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`triple-wall corrugated material. Second, it replaced the double-wall corrugated material on
`4
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`the ends with wood slats. Staples connected each of the four triple-wall corrugated sides to
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`two vertical pieces of wood on either “end.” The square “ends” were comprised of several
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`horizontal pieces of wood that were nailed into the two vertical wood slats. ODC
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`incorporated the “handhold” design from its old container design by omitting one
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`horizontal wood piece on each end. A photograph of an exemplar container, J.A. 1243, is
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`reproduced below.
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`Prior to using this new container design for shipping its goods, ODC performed
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`some field testing. According to Bradley Knable, ODC’s corporate designee, the testing
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`included workers pushing and pulling the containers using those handholds, although there
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`was no specific test of the maximum strength of the new handholds. The new design overall
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`performed to ODC’s satisfaction. ODC then shipped garage door hoods in these new
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`containers to select customers. ODC asked for feedback on the containers, and received no
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`complaints about the new container or its handholds.
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`5
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`B.
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`Mr. Sardis began working for Washington Overhead Door, Inc. (“WOD”), an ODC
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`distributor, in June 2016. On June 6, 2016, he and his training supervisor, Keith Lawrence,
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`were asked to transport an ODC garage door hood to a work site. The hood was shipped in
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`a post-2014 ODC container (hereinafter “the Container”), which was loaded onto a ladder
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`rack in the bed of a WOD service truck that Lawrence operated. At the work site, Lawrence
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`tried to remove the Container from the truck with a forklift, but the Container became
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`unbalanced on the forklift’s tines, making it unsafe to unload. Mr. Sardis then climbed onto
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`the ladder rack and tried to adjust the Container on the forklift tines by pulling on one of
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`its handholds. Lawrence recalled seeing Mr. Sardis standing in a “C position,” in which his
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`hands were directly over his feet, and his body was curved in a “C”-shape. J.A. 665–66.
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`When Mr. Sardis pulled, the wood slat constituting the handhold broke off, causing him to
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`fall off the ladder rack and hit his head on the pavement nine feet below. He succumbed to
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`his injuries two weeks later. The Container was photographed immediately after the
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`accident, but it was not preserved, to the fault of neither party. Thus, neither party could
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`test or otherwise examine the Container involved in Mr. Sardis’ accident.1
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`1 During discovery, the Estate requested that ODC produce at least three containers
`identical to the one involved in Mr. Sardis’ accident. ODC responded that it did not have
`any such container in its possession because it only manufactures them on-demand, but
`offered to construct three replicas of the Container. The Estate rejected this offer, claiming
`it “would have no way of knowing whether ODC made subtle changes to its design
`intended to strengthen the crates and/or the handholds, rendering any such testing wholly
`unreliable.” Pl.’s Opp. to Def.’s Mot. to Exclude Dr. Singh at 24, Sardis v. Overhead Door
`Corp., No. 3:17-cv-00818-JAG (E.D. Va. filed Nov. 15, 2018), ECF No. 75.
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`6
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`C.
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`After Mr. Sardis’ death, the Estate sued ODC in federal court, invoking the district
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`court’s diversity jurisdiction.2 The Estate asserted four causes of action under Virginia
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`products liability law: (1) a general negligence claim; (2) a design defect claim; (3) a breach
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`of implied warranty claim; and (4) a failure to warn claim.3 Essentially, the Estate alleged
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`that ODC was negligent in designing the Container’s handholds, and that this defective
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`design caused Mr. Sardis’ injuries. Alternatively, the Estate alleged that ODC had a duty
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`to warn foreseeable users of the Container to not rely on the handholds for pulling it, and
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`that had Mr. Sardis been warned, he would not have been injured. The Estate offered Sher
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`Paul Singh, Ph.D., as its sole expert for the design defect claim; and Michael S. Wogalter,
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`Ph.D., as the sole expert for the failure to warn claim.
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`Dr. Singh, a packaging design engineer, opined that the Container should have been
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`designed according to what he claimed was the relevant industry standard, American
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`Society of Testing and Materials Standard #D6039 (“ASTM D6039”). He opined that the
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`Container failed to satisfy this standard in two ways: (1) the handholds should not have
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`been included in the design; and (2) the Container should have been designed with end
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`“cleats,” or pieces of lumber or plywood vertically nailed onto the wood end pieces on the
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`2 The district court properly had diversity jurisdiction over this case. Mr. Sardis was
`domiciled in Virginia, and so is his Estate; ODC maintains its principal place of business
`in Texas; and the Estate’s Complaint sought damages well in excess of $75,000. See 28
`U.S.C. § 1332(a)(1).
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`3 The Estate’s Complaint asserted a fifth cause of action based on an alleged
`manufacturing defect, but it abandoned this claim before trial.
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`7
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`outside of the Container. Dr. Singh also testified that ODC breached industry standards by
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`failing to test the Container prior to placing it in the stream of commerce. Finally, without
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`performing any testing or citing to any published literature, he opined that these failures
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`proximately caused Mr. Sardis’ death.
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`The Estate also offered the expert testimony of Dr. Wogalter for its failure to warn
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`claim. Dr. Wogalter described himself as an expert on “human factors,” which he said was
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`“a discipline of study that deals with the design of products and systems based on people’s
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`abilities and limitations to promote productivity, satisfaction, and safety.” J.A. 96, 555. He
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`offered three opinions: (1) ODC should have done a “hazard analysis” (which entails, inter
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`alia, field and laboratory testing and soliciting feedback from consumers) to ascertain if
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`its new handhold design created new dangers that would require warnings; (2) the lack of
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`warnings about the hazards of pulling on the wooden handholds made it unreasonably
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`dangerous; and (3) ODC’s failure to perform a hazard analysis and to warn consumers not
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`to pull on the Container’s handholds proximately caused Mr. Sardis’ death.
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`Before trial, ODC filed a motion in limine to exclude both experts’ testimony as
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`irrelevant and unreliable. See Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). The
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`district court denied the motion as to both experts in a cursory fashion. Making no
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`relevancy determinations, it held only that ODC’s reliability concerns lacked merit because
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`“‘[a] lack of testing . . . affects the weight of the evidence,’ not its admissibility.” E.g., J.A.
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`289 (citation omitted). Instead, the district court opined that ODC could address its
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`concerns through “[v]igorous cross-examination, presentation of contrary evidence, and
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`careful instruction on the burden of proof.” Id. (alteration in original) (citation omitted).
`8
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`D.
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`After the jury rendered a $4.84 million verdict in the Estate’s favor on all four claims
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`for relief, ODC filed a renewed motion for judgment as a matter of law under Federal Rule
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`of Civil Procedure 50(b). ODC reasserted that both Drs. Singh and Wogalter provided
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`irrelevant and unreliable opinions, and that the district court should have stricken their
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`testimony at trial. In ODC’s view, with or without their testimony, the Estate could not
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`prevail on its claims as a matter of law.
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`Beginning with Dr. Singh and the Estate’s design defect claim, the district court
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`rejected ODC’s renewed Daubert challenges to Dr. Singh’s testimony as only “‘affect[ing]
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`the weight of the evidence,’ not its admissibility.” J.A. 1179 (citation omitted); J.A. 1182.
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`On the merits of the design defect claim, the court concluded that Dr. Singh provided
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`sufficient testimony to show that ASTM D6039 was the applicable industry standard for
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`the Container’s design, and that “the [C]ontainer fell short of that standard’s
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`specifications.” J.A. 1181. It further found that despite “some flaws” in Dr. Singh’s
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`proximate causation opinion, his testimony “gave the jury sufficient evidence to conclude
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`that the container’s defective design proximately caused [Mr.] Sardis’ death.” J.A. 1182.
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`ODC also argued that Dr. Wogalter’s testimony was inadmissible under Daubert
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`because his opinions all relied on the irrelevant point that ODC should have known of the
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`dangers that its handhold design posed. According to ODC, in order to prevail on a failure
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`to warn claim, Virginia law required ODC to have reason to know of the dangers, but Dr.
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`Wogalter provided no such testimony addressing that standard.
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`9
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`The district court made no explicit Daubert findings as to Dr. Wogalter, concluding
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`only that there was sufficient evidence to support the jury’s failure to warn verdict. Citing
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`Mr. Knable’s testimony that ODC did not “ever consider the potential dangers that its
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`packaging or crates can pose to others,” and Dr. Wogalter’s testimony that ODC had to
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`“solicit feedback” from users of the Container about the handhold’s dangers, the court
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`found that a reasonable jury could conclude that ODC “violated its ‘general duty to make
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`reasonable inferences from relevant and reasonably available facts.’” J.A. 1185 (citation
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`omitted). This testimony, the court explained, sufficiently supported the finding that ODC
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`“had a ‘reason to know’ of the [C]ontainer’s dangers.” J.A. 1185–86. The court did not,
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`however, address the issue of proximate causation.
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`ODC lastly challenged the sufficiency of the evidence supporting the jury’s verdicts
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`on the other two claims for relief, the general negligence claim and the breach of the
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`implied warranty of merchantability claim. The district court rejected both arguments,
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`however, deeming the evidence sufficient to support both verdicts. ODC thereafter timely
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`filed a notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
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`Rule 50(b) permits a party to bring a renewed motion for judgment as a matter of
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`II.
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`law after the jury has rendered its verdict. If that motion is denied, the moving party is
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`entitled to assert those same arguments on appeal, Fed. R. Civ. P. 50(e), and our subsequent
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`review is de novo, Sloas v. CSX Transp., Inc., 616 F.3d 380, 392 (4th Cir. 2010). In our
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`analysis, we must view the evidence in the light most favorable to the nonmoving party,
`10
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`id., without weighing it or making any credibility determinations, Chaudhry v. Gallerizzo,
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`174 F.3d 394, 404–05 (4th Cir. 1999). Our task is to determine “whether there was a legally
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`sufficient evidentiary basis for a reasonable jury” to render the verdict that it did. ABT Bldg.
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`Prods. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 472 F.3d 99, 113 (4th Cir. 2006)
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`(emphasis added). This requires us to first excise any evidence that was erroneously
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`admitted during trial, because “[i]nadmissible evidence contributes nothing to a ‘legally
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`sufficient evidentiary basis.’” Weisgram v. Marley Co., 528 U.S. 440, 453–56 (2000). If
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`the district court erred in denying judgment as a matter of law, then we have the discretion
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`to (1) “order a new trial,” (2) “direct the trial court to determine whether a new trial should
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`be granted,” or (3) “direct the entry of judgment” in the moving party’s favor. Fed. R. Civ.
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`P. 50(e).
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`III.
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`On appeal, ODC asserts that the district court reversibly erred in admitting the
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`expert testimony of Drs. Singh and Wogalter under Federal Rule of Evidence 702. It argues
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`that the district court first erred by delegating the determination of expert witness relevance
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`and reliability to the jury without performing any Daubert analysis. On the merits, ODC
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`contends that both experts’ opinions were irrelevant because Dr. Singh offered no relevant
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`industry standard, and Dr. Wogalter’s testimony was incompatible with Virginia’s failure
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`to warn jurisprudence. Further, ODC posits that both experts’ failure to test or otherwise
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`authenticate their proximate causation opinions rendered them unreliable. Since the
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`11
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`experts’ testimony was inadmissible, according to ODC, the Estate cannot establish any
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`design defect or reason for ODC to have known of the Container’s alleged dangers.
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`The Estate counters that the district court properly allowed the jury to consider
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`ODC’s challenges to Drs. Singh’s and Wogalter’s testimony. And even if those experts’
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`testimony was inadmissible, the Estate maintains that the other admissible evidence at trial
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`sufficiently supported the jury’s verdict on each claim for relief.
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`We agree with ODC. The district court erred at the motion in limine stage when it
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`improperly abdicated its critical gatekeeping role to the jury and admitted Drs. Singh’s and
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`Wogalter’s expert testimony without engaging in the required Rule 702 analysis. That error
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`was harmful. Had the district court faithfully executed its Daubert responsibilities before
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`or after the jury’s verdict, our precedent would have compelled it to exclude both experts’
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`testimony. And without that expert testimony, the Estate failed to meet its evidentiary
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`burden on each cause of action submitted to the jury.
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`A.
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`Before addressing the merits of the arguments on appeal, it is helpful to provide an
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`overview of Virginia products liability law.
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`“Virginia has not adopted a strict liability regime for products liability.” Evans v.
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`Nacco Materials Handling Grp., Inc., 810 S.E.2d 462, 469 (Va. 2018). Instead, plaintiffs
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`may pursue a products liability remedy “under a theory of implied warranty of
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`merchantability or under a theory of negligence.” Id. To prevail on either theory, a plaintiff
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`must prove “(1) that the goods were unreasonably dangerous either for the use to which
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`they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that
`12
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`the unreasonably dangerous condition existed when the goods left the defendant’s hands.”
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`Id. (quoting Featherall v. Firestone Tire & Rubber Co., 252 S.E.2d 358, 367 (Va. 1979)).
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`A product is “unreasonably dangerous” if it is defectively manufactured, defectively
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`designed, or “unaccompanied by adequate warnings concerning its hazardous properties.”
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`Id. (quoting Morgen Indus., Inc. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996)).
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`To prevail on a design defect claim, a plaintiff must show that the manufacturer
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`“owes a legally recognized duty to design” a product in a certain way to ensure that the
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`product “is reasonably safe for the purpose for which it is intended.” Holiday Motor Corp.
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`v. Walters, 790 S.E.2d 447, 454–55 (Va. 2016). Whether such a duty exists is a question
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`of law for the court, not the jury, id. at 454, and is informed by three kinds of evidence: (1)
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`governmental safety standards; (2) industry practices; and (3) reasonable consumer
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`expectations. Evans, 810 S.E.2d at 469–70.
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`If a plaintiff successfully establishes a duty to construct a product in a particular
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`manner, the manufacturer breaches that duty if the product does not conform to that
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`standard. Holiday Motor, 790 S.E.2d at 455 & n.14; see also Evans, 810 S.E.2d at 469–70.
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`Whether the product failed to conform to the established standard is a fact question for the
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`jury to resolve. See Morgen Indus., 471 S.E.2d at 492.
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`Distinctly, failure to warn claims recognize that “[a] product may . . . suffer from
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`no design defect, but nevertheless require a warning to consumers about a hidden danger.”
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`Evans, 810 S.E.2d at 472. To prevail on such a claim, a plaintiff must prove that the
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`manufacturer:
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`13
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`(a)
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`(b)
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`(c)
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`knows or has reason to know that the [product] is or is likely to be
`dangerous for the use for which it is supplied, and
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`has no reason to believe that those for whose use the [product] is
`supplied will realize its dangerous condition, and
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`fails to exercise reasonable care to inform them of its dangerous
`condition or of the facts which make it likely to be dangerous.
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`Funkhouser v. Ford Motor Co., 736 S.E.2d 309, 313 (Va. 2013) (quoting Featherall, 252
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`S.E.2d at 366).
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`B.
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`We begin with ODC’s argument that the district court abused its discretion in
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`admitting Drs. Singh’s and Wogalter’s expert testimony. We review a district court’s
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`decision to admit expert testimony for an abuse of discretion. McKiver v. Murphy-Brown,
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`LLC, 980 F.3d 937, 958 (4th Cir. 2020). And in conducting our Rule 50(b) analysis, we
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`“must first excise inadmissible evidence,” as “such evidence ‘contributes nothing to a
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`legally sufficient evidentiary basis.’” Hodges v. Mack Trucks Inc., 474 F.3d 188, 193 (5th
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`Cir. 2006) (quoting Weisgram, 528 U.S. at 454).
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`Rule 702 permits expert testimony if that testimony is (1) helpful to the jury in
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`understanding the evidence or determining a fact at issue, (2) “based on sufficient facts or
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`data,” (3) “the product of reliable principles and methods,” and (4) the product of a
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`“reliabl[e] appli[cation] of th[ose] principles and methods to the facts of the case.” Rule
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`702 thus “imposes a special gatekeeping obligation on the trial judge” to “ensur[e] that an
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`expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
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`Nease, 848 F.3d at 229–30 (quoting Daubert, 509 U.S. at 597).
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`14
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`An expert’s opinion is relevant if it has “a valid scientific connection to the pertinent
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`inquiry.” Belville v. Ford Motor Co., 919 F.3d 224, 232 (4th Cir. 2019) (quoting Daubert,
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`509 U.S. at 592). This ensures that the expert “helps ‘the trier of fact to understand the
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`evidence or to determine a fact in issue.’” Nease, 848 F.3d at 229 (citation omitted). Simply
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`put, if an opinion is not relevant to a fact at issue, Daubert requires that it be excluded.
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`But even if relevant, an opinion must also be sufficiently reliable. Reliability is a
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`“flexible” inquiry that focuses on “the principles and methodology” employed by the
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`expert. Daubert, 509 U.S. at 594–95. Specifically, district courts must ensure that an
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`expert’s opinion is “based on scientific, technical, or other specialized knowledge and not
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`on belief or speculation.” Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999).
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`And to the extent an expert makes inferences based on the facts presented to him, the court
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`must ensure that those inferences were “derived using scientific or other valid methods.”
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`Id.
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`Daubert provides four, non-exhaustive “guideposts” to aid in the required reliability
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`analysis: (1) whether the expert’s theory or technique “can be (and has been) tested”; (2)
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`“whether the theory or technique has been subjected to peer review and publication”; (3)
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`“the known or potential rate of error” inherent in the expert’s theory or technique; and (4)
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`whether the expert’s methodology is generally accepted in his field of expertise. Nease,
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`848 F.3d at 229 (quoting Daubert, 509 U.S. at 593–94). But this list “neither necessarily
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`nor exclusively applies to all experts or in every case,” as the relevance of some factors can
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`“depend[] on the nature of the issue, the expert’s particular expertise, and the subject of his
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`testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 150 (1999) (citation
`15
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`omitted). Accordingly, trial courts are typically given “broad latitude” to determine which
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`of these factors (or some other unspecified factors) are “reasonable measures of reliability
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`in a particular case.” Nease, 848 F.3d at 229 (quoting Kumho Tire, 526 U.S. at 153). But
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`that broad discretion does not allow a district court to delegate the issue to the jury.
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`As we explain below, the district court abused its discretion initially when it failed
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`to perform any Daubert analysis and ruled that the issues of relevance and reliability
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`impacted only the weight of the experts’ testimony, not their admissibility. That error was
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`harmful for two independent reasons. First, without Drs. Singh’s and Wogalter’s
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`testimony, the Estate could not have prevailed on any of its claims as a matter of law. And
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`second, assuming that the court had considered the merits of ODC’s Daubert challenges in
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`ruling on ODC’s post-trial Rule 50(b) motion, it abused its discretion in refusing to strike
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`Drs. Singh’s and Wogalter’s testimony for both offered irrelevant and unreliable opinions.
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`1.
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`a.
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`We begin with ODC’s argument that the district court failed to perform its
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`gatekeeping function as to both experts.
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`After the Supreme Court’s seminal decisions in Daubert and Kumho Tire, Rule 702
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`was amended specifically to “affirm[] the trial court’s role as gatekeeper.” Fed. R. Evid.
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`702 advisory committee’s note to 2000 amendments. So when a party challenges an
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`opposing expert’s testimony as irrelevant, the court must satisfy itself that the proffered
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`testimony is relevant to the issue at hand, for that is “a precondition to admissibility.”
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`Daubert, 509 U.S. at 592 (emphasis added). And if that expert’s proffered evidence is
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`further alleged to be unreliable, then “the trial judge must determine whether the testimony
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`has ‘a reliable basis in the knowledge and experience of the relevant discipline.’” Kumho
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`Tire, 526 U.S. at 149 (alteration omitted) (quoting Daubert, 509 U.S. at 592). While district
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`courts have “broad discretion” in analyzing reliability, “such discretion does not include
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`the decision ‘to abandon the gatekeeping function.’” Nease, 848 F.3d at 230 (quoting
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`Kumho Tire, 526 U.S. at 158–59 (Scalia, J., concurring)). “Rather, it is discretion to choose
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`among reasonable means of excluding expertise that is fausse and science that is junky.”
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`Kumho Tire, 526 U.S. at 159 (Scalia, J., concurring). Thus, a district court abuses its
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`discretion if it fails to ensure that a proffered expert opinion is “sufficiently relevant and
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`reliable when it is submitted to the jury.” Nease, 848 F.3d at 231.
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`The district court’s ruling on ODC’s motion in limine cursorily dismissed each of
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`ODC’s reliability and relevance arguments as only going to weight, not admissibility.
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`Although the court recognized “legitimate concerns” with Dr. Wogalter’s proffered
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`testimony, it nonetheless deemed those concerns solely a subject for cross-examination.
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`J.A. 287–88 (emphasis added). Despite ODC’s request, the district court failed to undertake
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`any Daubert analysis. Just as in Nease, “[t]he court did not use Daubert’s guideposts or
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`any other factors to assess the reliability of [Drs. Singh’s and Wogalter’s] testimony, and
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`the court did not make any reliability findings.” 848 F.3d at 230. Instead, it reflexively
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`“[found] that [ODC]’s arguments go to the weight the jury should afford [Dr. Singh’s]
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`testimony, not its admissibility.” Id. at 230–31 (first alteration in original). By doing so,
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`the court “abandoned its gatekeeping function,” thereby abusing its discretion. Id. at 230.
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`The court similarly erred in ruling on ODC’s post-trial Rule 50(b) motion. As to Dr.
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`Singh, the district court doubled down, again finding that ODC’s challenges went to the
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`weight of the testimony, not admissibility. It pointed out that ODC “vigorously cross-
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`examined Dr. Singh” on his failure to test his theories, but “the jury apparently found Dr.
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`Singh’s opinions credible.” J.A. 1180, 1182. But credibility is entirely distinct from
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`reliability and relevancy, which are preconditions to the admissibility of expert testimony.
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`Nease, 848 F.3d at 229. While cross-examination may be a proper tool to determine which
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`of two competing experts’ theories more credibly explains an event, even a “‘thorough and
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`extensive examination’ does not ensure the reliability” or relevance “of [an] expert’s
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`testimony.” Id. at 231 (citation omitted). And while the court’s opinion on the failure to
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`warn claim considered Dr. Wogalter’s testimony as part of the evidentiary basis supporting
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`the jury’s verdict, it never addressed ODC’s challenges to Dr. Wogalter’s proximate
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`causation opinions, and never made any direct relevance or reliability rulings. Thus, as to
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`both experts, the district court improperly “delegate[d] [its] gatekeeping responsibility to
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`the jury,” and thereby abused its discretion. Id.
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`At oral argument, the Estate posited that to the extent the district court did not make
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`explicit its relevance and reliability findings, those were implicit in the ultimate ruling that
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`both experts could testify. That is plainly insufficient. Where the admissibility of expert
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`testimony is specifically questioned, Rule 702 and Daubert require that the district court
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`make explicit findings, whether by written opinion or orally on the record, as to the
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`challenged preconditions to admissibility. United States v. Ruvalcaba-Garcia, 923 F.3d
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`1183, 1190 (9th Cir. 2019) (“[T]he district court’s ruling at most suggests an implicit
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`finding of reliability, which is not sufficient. To satisfy its gatekeeping duty under Daubert,
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`the court must make an explicit reliability finding.” (citations and internal quotation marks
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`omitted)); Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016)
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`(“At a minimum, a district court must create a record of its Daubert inquiry and articulate
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`its basis for admitting expert testimony.” (alterations, citation, and internal quotation marks
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`omitted)); Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (“[T]he court must provide
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`more than just conclusory statements of admissibility or inadmissibility to show that it
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`adequately performed its gatekeeping function.”).
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`The district court did none of this, despite voicing its concerns with both experts
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`during trial. See, e.g., J.A. 501, 504 (pointing out that Dr. Singh’s reliance on ASTM D6039
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`might be “comparing apples and oranges,” but nonetheless deciding to “leave [the parties]
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`to fight that out” in front of the jury); J.A. 573–74 (demanding that Dr. Wogalter provide
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`“more detail” into the hazard analysis process “so that we can figure out whether there is a
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`likelihood of good results,” but then discovering that there is no “existing literature” on the
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`subject, and no analogous example of a hazard analysis performed on a similar container).
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`Without the explicit findings required under Daubert, “it is impossible on appeal to
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`determine whether the district court carefully and meticulously reviewed the proffered
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`evidence or simply made an off-the-cuff decision to admit the expert testimony.” Smith v.
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`Jenkins, 732 F.3d 51, 64 (1st Cir. 2013) (alteration and citation omitted). Accordingly, we
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`hold that the district court failed to satisfy Rule 702’s gatekeeping requirement and that
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`failure was an abuse of discretion.
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`19
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`We conclude with one final observation. Our insistence on district courts’
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`compliance with Rule 702’s plain gatekeeping requirement stems not from an arbitrary
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`adherence to a procedural formality. Rather, because Rule 702 grants experts “wide latitude
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`to offer opinions, including those that are not based on firsthand knowledge or
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`observation,” “[e]xpert evidence can be both powerful and quite misleading.” Daubert, 509
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`U.S. at 592, 595 (citations and internal quotation marks omitted). As such, “the importance
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`of [the] gatekeeping function cannot be overstated.” United States v. Barton, 909 F.3d
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`1323, 1331 (11th Cir. 2018) (citation and internal quotation marks omitted).
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`Tha
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