Two interesting holdings from Burlington No. & S.F. Rwy. v. Grant, 2007 U.S. App. LEXIS 22680 (10th Cir. Sept. 24, 2007):

1. Daubert: Unexplained Exclusion of Expert Testimony. The district court had excluded the plaintiff’s expert testimony but failed to make any supporting findings. The plaintiff sought reversal on this ground. The defendant argued that a review of the record of the two-day Daubert hearing revealed flaws in the expert’s methodology that were so obvious that the Court of Appeals had a sufficient record to review the district court's decision, notwithstanding the absence of findings. Rejecting this contention, the Tenth Circuit stressed that: ‛What [defendant] is essentially asking us to do is to infer that the district court properly performed its gatekeeping function based on the few statements it made and questions it asked during the Daubert hearing. This we are unwilling to do. In the absence of findings by the district court to support its ruling to exclude this evidence, we cannot determine whether it applied the relevant law and properly performed its gatekeeping function.“

2. Sanctions Cross-Appeal as Improper Request for Affirmance on Alternate Grounds. In an effort to preserve its victory below, the plaintiff cross-appealed, arguing that the plaintiff’s claim should be dismissed as a sanction for spoliation. The plaintiff asserted that this was procedurally impermissible because ‛cross-appeals are to be dismissed where they merely present an alternate grounds for affirmance, but do not ask that the judgment be altered in any way“ (citing Jarvis v. Nobel/Sysco Food Serv. Co., 985 F.2d 1419, 1426 n.7 (10th Cir. 1993) (holding that dismissal of cross-appeal is proper where a party presents alternate grounds to affirm, but does not "ask[] that the judgment itself be altered")). Held, ‛the spoliation issue is not an alternate grounds for affirming the judgment on the merits. Rather, resolution of this issue could result in a possible dismissal of [plaintiff’s] action as a sanction, and for reasons having nothing to do with the actual merits of [plaintiff’s] claims.“