Sharon Peters-Martin v. Navistar International Transpo, No. 09-1200 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1200 SHARON PETERS-MARTIN; STEVEN AUTOMOBILE INSURANCE COMPANY, MARTIN; STATE FARM MUTUAL Plaintiffs - Appellants, v. NAVISTAR INTERNATIONAL TRANSPORTATION INTERNATIONAL TRUCK AND ENGINE CORPORATION; CORPORATION, CORPORATION; ROBERT BOSCH Defendants Appellees, and HONEYWELL INTERNATIONAL, INCORPORATED, Defendant, v. JOSEPH CORY HOLDINGS, LLC; ALFRED RUSSELL PAGE, JR.; RYDER TRUCK RENTAL, INCORPORATED, Third Party Defendants Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:05-cv-02988-DKC) Argued: September 22, 2010 Decided: February 9, 2011 Before MOTZ and SHEDD, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished opinion. Judge Davis wrote the opinion, in which Judge Motz and Judge Shedd joined. ARGUED: Mark Minoru Kodama, LAW OFFICE OF MARK M. KODAMA, Washington, D.C., for Appellants. Harry S. Johnson, WHITEFORD, TAYLOR & PRESTON, LLP, Baltimore, Maryland; Edward John Longosz, III, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Washington, D.C.; Charles Grant Byrd, Jr., ALSTON & BYRD, Baltimore, Maryland, for Appellees. ON BRIEF: Stefanie M. Stewart, WHITEFORD, TAYLOR & PRESTON, LLP, Baltimore, Maryland, for Robert Bosch Corporation; Laura Stover, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Washington, D.C., for Navistar International Transportation Corporation and International Truck and Engine Corporation. Unpublished opinions are not binding precedent in this circuit. 2 DAVIS, District Judge: Sharon Peters-Martin ( Peters-Martin ), Steven Martin ( Martin ), and State Farm Mutual Automobile Insurance Company ( State Farm and, collectively with Peters-Martin and Martin, the Appellants ) appeal from several rulings of the district court. First, Appellants appeal from the district court s August 14, 2008 memorandum opinion and order, which granted, inter alia, motions in limine filed by Robert Bosch LLC, formerly known as Robert Bosch Corporation ( Bosch ), and by Alfred Russell Page, Holdings ), and collectively with Appellees ) to Jr., Ryder Joseph Truck Page and exclude the Cory Rental, Cory Holdings, Inc. Holdings, testimony of LLC ( Cory ( Ryder and, Third Party the Appellants proposed liability expert, Dr. Allen M. Bissell, as well as motions for summary judgment filed by Bosch and the Third Party Appellees. Second, Appellants appeal the district court s January 23, 2009 memorandum opinion and order, which granted a motion filed by International Truck and Engine Corporation ( International Truck and, collectively with Bosch, the Appellees ), formerly known as Navistar International ( Navistar ), 1 for summary judgment. Transportation Corporation For the reasons set forth below, we affirm the judgment of the district court. 1 For the sake of clarity, we shall refer to this appellee as International Truck. 3 I. A. This case arises from a multiple-vehicle accident that occurred on September 24, 2002, at the intersection of Riggs Road and the Maryland. East-West Highway in Prince George s County, A Ryder truck (the truck ) being driven by Page, who was an employee of Cory Holdings, allegedly lost power to its brakes as it crested a hill and subsequently struck several vehicles, including the vehicle that Peters-Martin was driving. Peters-Martin and her husband, Steven Martin, filed a case against Page and Ryder Truck, Inc. in the Circuit Court for Prince George s County, Maryland (the Prince George s County Circuit Court ), Civ. Action Law No. 04-12926, voluntarily dismissed that case, with prejudice. but later On September 19, 2005, Appellants filed the instant case against Navistar, International Truck, Bosch, and Honeywell International, Inc. ( Honeywell ) in the Prince George s County Circuit Court, Civ. Action Law No. 05-19605, alleging that the braking system of the truck was defectively designed and manufactured. International Truck removed the case to the United States District Court for the District of Maryland on November 2, 2005. On May 16, 2006, Bosch the filed Appellees. a third-party complaint against Third Party On January 9, 2007, Appellants voluntarily dismissed Honeywell as a defendant. On January 14, 2008, Bosch and the 4 Third Party Appellees filed motions in limine and for summary judgment. After briefing, the district court granted all of those motions by memorandum opinion and order dated August 14, 2008. Specifically, the district court found that although Dr. Bissell was qualified to testify as an expert, (1) the methods he used in the instant case were unreliable and lacked sufficient factual support, (2) his expert reports failed to show how the claimed defect actually caused the accident, and (3) his proposed alternative design lacked sufficient detail and factual support. Having determined that Appellants lacked the requisite expert testimony to establish their products liability claim and other claims, the district court concluded that summary judgment in favor of Bosch and the Third Party Appellees was appropriate. International Truck thereafter moved for summary judgment on September 12, 2008, which, after briefing, the district court granted on January concluding the district court proceedings. 23, 2009, thereby Appellants timely filed their notice of appeal on February 20, 2009. B. Although International Truck was the manufacturer of the truck at issue in this case, which was a 1998 International Truck Model 4700, truck s braking appeal: the Bosch system Hydro-Max® manufactured that are Booster 5 the (the the components central focus Booster ) of of and the this Master Cylinder (the assistance alleged to to be Cylinder ). the truck s the cause These components hydraulic braking of the accident. provided system, The power and Booster are is attached to the truck s brake pedal by a pedal rod, which is inserted into an input plug on the Booster. A rubber grommet is installed on the pedal rod to retain the pedal rod within the Booster. In this case, it is undisputed that the truck s pedal rod was found to be disconnected after the accident. from the Booster when examined The rubber grommet on the truck s pedal rod was also found to be damaged and distorted from its original condition. The truck s odometer had approximately 117,000 miles on it at the time of the accident. J.A. 63 ¶ 8, 88 & 97 ¶ 10. The truck s braking system had previously been serviced, J.A. 65 ¶¶ 19 20 & 97 98 ¶¶ 13 14, and the truck had passed a federal inspection two months (and 1,631 miles) prior to the accident. J.A. 82. Page had previously used the truck without any brake problems, and had inspected, tested, and repeatedly used the truck s brakes the morning of the accident. 11. J.A. 189 90, 207 Bosch denies that the products or components at issue in this case were defectively designed or manufactured. 1. This case is one of six lawsuits filed as a result of this accident, and it is necessary to 6 mention certain details of those other lawsuits briefly in order to provide context. and Ryder were named as defendants in all six cases. Page Bosch was named as a defendant only in this case and in Witham v. Page, which was originally filed in the Circuit Court for Baltimore City, Maryland on August 17, 2005, but which was subsequently transferred on motion of the defendants to the Prince George s County Circuit Court, Civ. Action Law No. 06-3518. J.A. 128. The instant accident in case, however, is the only case which International Truck after the Travelers has involving been named this as a defendant. Shortly Ryder s insurer, accident, retained Engineering and Insurance Fire Company, Investigations ( EFI ) to examine the truck and its braking system. Dr. Harold Ornstein 2002, conducted the inspection on December issued a report dated January 10, 2003. 12, J.A. 296 97. and Dr. Ornstein opined that [t]he accident was caused by a defective brake system, and that [t]he driver did not do anything that could have caused or contributed to the accident. Dr. Ornstein s Transportation ( NHTSA ) review National records did of the Highway not J.A. 301. United States Department Traffic Safety Administration reveal any recalls or of technical service bulletins applicable to the model truck involved in this case. Id. 7 Dr. another Ornstein one of testified the lawsuits on behalf relating of to the defendant this in accident, Dr. Blessings Heaven International Association of Women Clergy v. Travelers Insurance, in the Prince George s County Court, Civ. Action Law No. 03-07861, on May 8, 2006. Circuit J.A. 183. In that case, Dr. Ornstein concluded, to a reasonable degree of engineering certainty, that the accident was caused by a defective braking system and that the driver did not do anything that could have caused or contributed to the accident. 201. J.A. When asked for his opinion about what caused the brake failure, separation Dr. of Ornstein two stated parts of that a [i]t component was that a physical either were defective by very small amounts that you can t determine, or had not worn the way they were supposed to. is perfect in this world. J.A. 200. It s basically, nothing When asked why the pedal rod came out, Dr. Ornstein replied, Well, we don t know. one knows exactly what caused it. J.A. 69. No Of course, Bosch and International Truck were not parties to the Dr. Blessings case, and therefore had no opportunity to cross-examine Dr. Ornstein themselves about his opinions regarding the cause of the brake failure. Bosch was, however, a defendant in Witham v. Page, which also went to trial. The plaintiff in that case initially relied on the testimony of Drs. Ornstein and Bissell to support a claim 8 against Bosch. Prior to trial, Bosch filed a motion for summary judgment, challenging the admissibility of the expert testimony of Drs. Bissell and Ornstein. Bissell for Ornstein s hearing deposition, prior argument, trial the The plaintiff never produced Dr. choosing testimony instead in trial Witham Dr. to rely on Blessings. court found Dr. After that the testimony of Dr. Ornstein was not sufficient under Maryland law to support even a prima facie case against Bosch that the HydroMax® Booster and Master Cylinder were defectively designed or manufactured. J.A. 113 14. 2. Dr. Bissell provided Appellants with two reports in this case. The first, dated October 16, 2006, 2 was prepared by Dr. Bissell and three of his fellow employees at Trident Engineering Associates, Inc. ( Trident ). In that report, Dr. Bissell relied extensively on Dr. Ornstein s previous investigation and cited a recall issued by International Truck on certain model trucks, including the model truck involved in this case, relating to a particular type of caliper (a disc braking system 2 Although the first page of the report is dated October 16, 2006, subsequent pages are dated October 23, 2006. Compare J.A. 87 with J.A. 88 94. Despite this discrepancy, we shall refer to this report as Dr. Bissell s October 16, 2006 report. 9 component) known as a Zero Operating Pin Slide ( ZOPS ) caliper. 3 That recall did not relate to the Hydro-Max® Booster and Master Cylinder or, for that matter, to the truck involved in this case, because the truck apparently did not have ZOPS calipers. 4 In his October 16, 2006 report, Dr. Bissell opined, without having tested or physically examined the truck s braking system, that ZOPS calipers could produce extreme heating of the calipers, wheel rotors, brake fluid, and brake lines, and that such heat cylinder will and operating transfer thence to temperature temperature. up the of J.A. 89. the brake Hydro-Max the lines to booster, equipment to the master raising an the uncertain Dr. Bissell then stated that it is possible that the high operating temperature of the brake system due to its ZOPS caliper design can compromise the ability of the grommet to hold the pedal rod in place. J.A. 93. His conclusions, purportedly to a reasonable degree of engineering certainty, were that such heating could have caused the grommet 3 According to the report, these safety recalls were issued on February 24, 2003, approximately six weeks after the date of Dr. Ornstein s report, which appears to explain why Dr. Ornstein s search for safety recalls yielded no results. See J.A. 80 & 88. 4 Although Appellees submitted sworn affidavits from Bosch engineers stating, inter alia, that the truck actually had rail slide calipers instead of ZOPS calipers, we note that the district court was not actually required to determine this fact in ruling on the motions in limine. J.A. 352 n.7 (citing J.A. 65 ¶¶ 19 20); see also J.A. 97 98 ¶¶ 13 14. 10 on the truck s pedal rod to fail, that the retaining grommet design is defective in the Hydro-Max Hydraulic Brake Booster because its failure can be sudden and without warning and the grommet condition cannot be determined, and that the truck s Booster should be disassembled to ascertain the condition of internal parts. J.A. 93 94. As Appellees emphasize, although Dr. Bissell obtained an exemplar Hydro-Max booster and brake cylinder in new, unused condition and disassembled and measured it, J.A. 89, he cited no tests, studies, or other scientific support for the foregoing conclusions, occurring and with cited the no prior grommet. instances He also of such failed to a problem provide any factual or scientific data or support for his discussion of heat generation and transfer within the truck s braking system to the grommet. Dr. prepared Bissell s for second report, dated Appellants counsel as mediation session in the case. March talking J.A. 77. 7, 2007, points for was a This second report shifted the focus from Dr. Bissell s extreme heat theory to [t]he lack of any procedure to check on the condition of the brake push-rod retention grommet, which makes it impossible to discover the condition of the brake system. Id. Since the DOT requires that vehicle brake systems, especially for trucks, use fail-safe design, Dr. Bissell 11 opined that the grommet failure he requiring described recall of constitute[d] this braking brake pedal retention system. Noting that [t]he a serious system design defect and redesign of the had abraded in its Id. grommet . . . mounting socket to the point that it could no longer retain the brake pedal connection to the rest of the system, Dr. Bissell suggested an alternative all-metal ball-and-socket joint design. However, his March 7, 2007 report provides no further details of such alternative design, such as its feasibility, actual use, or cost. II. A. District courts have broad latitude in ruling on the admissibility of evidence, including expert opinion, and such evidentiary rulings with respect to relevance and reliability, including those made pursuant to the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), will not be overturned absent an abuse of discretion. Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005). A district court abuses its discretion when it acts arbitrarily recognized or irrationally, factors fails constraining its to consider exercise of judicially discretion, relies on erroneous factual or legal premises, or commits an error of law. United States v. Delfino, 510 F.3d 468, 470 (4th 12 Cir. 2007). However, even if a district court s evidentiary ruling constitutes an abuse of discretion, such a ruling is reversible only if it affects a party s substantial rights. Schultz v. Capital Int l Sec., Inc., 466 F.3d 298, 310 (4th Cir. 2006); accord Fed. R. Evid. 103(a). Rule 702 of the Federal Rules of Evidence serves as the guidepost for determining the admissibility of expert testimony. United States v. Wilson, 484 F.3d 267, 274 75 (4th Cir. 2007). The rule 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. In considering the admissibility of expert testimony, a district court acts as a gatekeeper and must assess whether an expert s proffered reliable and relevant. testimony is both sufficiently Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); accord Daubert, 509 U.S. at 597; United States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006). The relevance and reliability of expert testimony is examined by consideration of, among other things: (1) whether the particular scientific theory can be (and has been) tested ; (2) whether the theory has 13 been subjected to peer review and publication ; (3) the known or potential rate of error ; (4) the existence and maintenance of standards controlling the technique s operation ; and (5) whether the technique has achieved general acceptance in the relevant scientific or expert community. United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (quoting Daubert, 509 U.S. at 593 94). Although the reliability of an expert s principles and methods, as well as the application of such methods to the facts of a case, must be examined, the district court need not determine that the proffered expert testimony is irrefutable or certainly correct because [a]s with all other admissible evidence, expert testimony is subject to testing by [v]igorous cross-examination, presentation of contrary careful instruction on the burden of proof. evidence, and Moreland, 437 F.3d at 431 (quoting Daubert, 509 U.S. at 596) (alteration in original); see also Md. Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998) (noting that [a]ll Daubert demands is that the trial judge make a preliminary assessment of whether the proffered testimony is both reliable . . . and helpful ). Neither Rule 702 nor relevant case law establishes a mechanistic test for determining the reliability of an expert s proffered testimony; on the contrary, the test of reliability is flexible and the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. 14 Wilson, 484 F.3d at 274 (quoting Kumho Tire Co., 526 U.S. at 141 42). Although the district court is afforded broad latitude in performing such a flexible inquiry, the focus of the inquiry should be on the principles and methodology employed by the expert, not on the conclusions reached. Moreland, 437 F.3d at 431 (quoting Daubert, 509 U.S. at 594 95). As this Court recognized in Wilson, [a] district court s reliability determination does not exist in a vacuum, as there exist meaningful differences in how reliability must be examined with respect to expert testimony that is primarily experiential in nature as opposed to scientific. Wilson, 484 F.3d at 274. Unlike [p]urely scientific testimony, which is characterized by its falsifiability, or refutability, or testability, id. (quoting Daubert, 509 U.S. at 593), and is thus objectively verifiable, such [e]xperiential expert testimony . . . does Id. (quoting not rely on anything like a scientific method. Fed. R. Evid. 702 advisory committee s note). although experience alone or experience in Consequently, conjunction with other knowledge, skill, training or education may . . . provide a sufficient Fed. R. foundation Evid. 702 for advisory expert testimony, committee s note), id. the (quoting district court s task in examining the reliability of experiential expert testimony is Nevertheless, therefore the district somewhat court 15 more must . opaque. . . require Id. an experiential witness to explain how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, applied to the facts. and how [his] experience is reliably Id. (quoting Fed. R. Evid. 702 advisory committee s note) (alterations in original). B. This Court reviews a district court s decision to grant summary judgment de novo, applying the same legal standards as the district court. 2009). Pueschel v. Peters, 577 F.3d 558, 563 (4th Summary judgment is appropriate when the Court, viewing the record as a whole and in the light most favorable to the non-moving party, determines that there exists no genuine issue of material fact and that judgment as a matter of law. Corp. v. Catrett, 477 U.S. the moving party is entitled to Fed. R. Civ. P. 56(a); 5 Celotex 317, 322 24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 5 Recent amendments to the Federal Rules of Civil Procedure, which became effective on December 1, 2010, moved the relevant language from section (c)(2) of Rule 56 to its present location in section (a). However, the advisory committee s note indicates that, despite these amendments, [t]he standard for granting summary judgment remains unchanged. Fed. R. Civ. P. 56 advisory committee s note. 16 III. We note as an initial matter that Appellants have conceded, both in their brief and at oral argument, that the admissibility of Dr. Bissell s testimony is crucial to proving their products liability claim in this case. at 18. Br. of Appellants In other words, it is undisputed that, without Dr. Bissell s expert testimony, that claim cannot survive Appellees motions for summary judgment. Appellees arguments Consequently, we need not address regarding the indispensability of expert testimony under Maryland law for products liability claims such as the one asserted in this case. See, e.g., Mohammad v. Toyota Motor Sales, U.S.A., Inc., 947 A.2d 598, 607 10 (Md. Ct. Spec. App. 2008); Wood v. Toyota Motor Corp., 760 A.2d 315, 319 (Md. Ct. Spec. App. 2000); Jensen v. Am. Motors Corp., 437 A.2d 242 (Md. Ct. Spec. App. 1981). Instead, we turn directly to the substance expert of Dr. Bissell s reports and the district court s reasons for excluding his testimony. A. As discussed above, the principal theory advanced in Dr. Bissell s October 16, 2006 report was that the truck s brake failure and the ensuing accident were caused by the failure of the grommet connecting the truck s pedal rod to the Hydro-Max® Booster. Under Dr. Bissell s theory, the grommet failed prior to the accident, causing the pedal rod to separate from the 17 Booster, thus effectively disconnecting the truck s brake pedal from the braking system and rendering Page unable to stop the truck as it crested the hill. grommet failed because it had Dr. Bissell opined that the been softened by exposure to extreme heat, which had rendered it susceptible to distortion of its shape. had been Dr. Bissell further opined that such extreme heat generated by the friction from jammed ZOPS brake calipers, which were improperly holding the truck s brake pads against its brake rotors even when the brakes were not activated by the driver, and that such heat had been conducted to the grommet by the truck s brake lines and brake fluid. Apparently recognizing the scant factual basis for several aspects of Dr. Bissell s extreme heat theory, 6 Appellants also advanced the alternative, more rudimentary theory advanced in Dr. Bissell s second expert report dated March 7, 2007. 7 In that 6 Although Appellants do not concede that Dr. Bissell s methodologies fell short of Rule 702, Br. of Appellants at 20, counsel for Appellants acknowledged at oral argument that the district court definitely ha[d] a better argument to say that the heating problem needed more scientific testing. Counsel instead argued principally that Dr. Bissell s alternative theory should have, by itself, survived summary judgment. This position is consistent with Appellants claim in their brief that Dr. Bissell s opinion in this area [i.e., his extreme heat theory] is not essential to his finding that the brake system and its components were defectively designed and made. Id. at 20 21. 7 Appellees contend that we should not even consider this alternative theory because it was not advanced in the district court. As this court has repeatedly held, issues raised for (Continued) 18 report, as discussed above, Dr. Bissell opined that the grommet s defective nature was manifest from the mere fact of its failure alone. Appellants emphasize on appeal that this is not based upon merely by [sic] the ipse dixit of Dr. Bissell but by [sic] the U.S. Department of Transportation, which requires that vehicle braking systems be fail-safe. Br. of Appellants at 19. Specifically, since the grommet s physical placement within the braking checked for Ornstein s grommet argue system wear or testimony itself that is must any such that damage, in be failure the Dr. it Bissell Dr. the be monitored asserts, Blessings fail-safe. of cannot grommet citing would, by Dr. that trial, Consequently, or the Appellants definition, constitute a defect, and that Dr. Bissell s proposed testimony to that effect would suffice to survive summary judgment. B. In granting the motions in limine, the district court enumerated several deficiencies in Dr. Bissell s expert reports. First, the district court correctly noted that Dr. Bissell s the first time on appeal generally will not be considered, except in very limited circumstances, such as where refusal to consider the newly-raised issue would be plain error or would result in a fundamental miscarriage of justice. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). It is evident, however, from both Appellants opposition to the motions in limine and the district court s August 14, 2008 Memorandum Opinion that this alternative theory was, in fact, raised before the district court. See, e.g., J.A. 152 ¶¶ 70 71, 159 60, 355. 19 theories were not based upon firsthand examination or testing of the truck s braking system, or even extensive testing of his exemplar braking system, but were instead largely extrapolated from Dr. Ornstein s previous inspection and report. It is somewhat noteworthy in this connection that Dr. Bissell s own reports appear examination. Bissell s to See opinion underscore J.A. in 94 his the importance (including October 16, as an 2006 of firsthand element report of that Dr. the Hydro-Max assembly from the subject truck should be disassembled to ascertain the condition of internal parts ) & 78 (noting in Dr. Bissell s March 7, 2007 report that [a]n examination of the original equipment can better establish whether or not the retaining shoulder was abrading the grommet ). Of course, Dr. Bissell s failure to examine the truck s braking system himself does not, in and of itself, render his opinion inherently unreliable or automatically inadmissible. Examination and/or testing of an exemplar of the same product, in combination with a review of photographs of the allegedly defective product and/or testimony regarding the circumstances and nature of the allegedly defective product s failure, may, in some cases, methodology constitute for an an expert entirely to adequate employ, and reliable especially where examination or testing of the allegedly defective product itself is impossible, impracticable, or 20 would implicate issues of spoliation. See, e.g., Cole v. Keller Indus., Inc., 132 F.3d 1044, 1046 47 (4th Cir. 1998) (discussing the appropriate remedy under Virginia law for spoliation of an allegedly defective ladder by the plaintiff s expert); Alevromagiros v. Hechinger Co., 993 F.2d 417, 419 20 (4th Cir. 1993) (affirming a district court s directed verdict in favor of the defendants in a Virginia products liability case because the plaintiff s expert, inter alia, had never conducted a physical examination of an identical but undamaged ladder to determine its safe or unsafe design and had failed to perform tests recommended by the American National Standards Institute on such exemplar ladder); Coker v. Louisville Ladder Inc., Civ. Action No. 4:08cv113, 2009 WL 2870030 (E.D. Va. May 26, 2009) (denying the defendant s motion in limine to exclude the testimony of the plaintiff s expert despite the expert s failure to test an allegedly defective ladder because, inter alia, the expert had examined and tested an exemplar ladder of the same model); cf. Pugh v. Louisville Ladder, Inc., 361 F. App x 448, 450 (4th Cir. 2010) (noting that the district court had granted a motion in limine to preclude the plaintiff s experts from testifying about testing performed on an exemplar ladder because the exemplar was designed differently than the allegedly defective ladder); Stoots v. Werner Co., No. Civ.A. 7:04CV00531, 2005 WL 3547122 (W.D. Va. 2005). Thus, Dr. Bissell s methodology in this case 21 was not necessarily defective in its conception. It was, however, woefully deficient in its execution. Counsel for Appellants indicated at oral argument that Dr. Bissell s failure to examine the truck s braking system himself was due not only to Appellees spoliation concerns, but also to cost concerns on the part of Appellants. Whatever the ultimate reason or reasons for these shortcomings, the fact remains that Dr. Bissell provided no evidence, based on testing or otherwise, to support his contention that the grommet had, in fact, failed prior to the accident, let alone that the grommet s alleged failure was, or even could have been, caused by the distortion observed in the grommet after the accident. Appellants contention that the grommet had abraded in its mounting sock [sic] to the point that it could no longer hold itself in place to the Hydro Max Booster was therefore pure speculation, and the district court was entirely correct to exclude it on that basis. Br. of Appellants at 14. Noting the deficiency, the district court correctly observed that Dr. Bissell s reports did not provide the results of any testing, cite any scientific research, or even disclose the specific evidence that he relied upon in discussing (1) the potential or demonstrated effect of extreme heat on the grommet, (2) the potential or demonstrated source of such extreme heat within the truck, or (3) the potential or demonstrated ability 22 of the truck s brake lines and brake fluid actually to conduct heat of a sufficiently high temperature to cause distortion of the grommet. for his Consequently, Dr. Bissell lacked a factual basis conclusions that (1) the distortion observed in the grommet was, in fact, caused by exposure to extreme heat, (2) the calipers sufficiently on the extreme to truck did, distort in the fact, generate and grommet, heat such (3) extreme heat was, in fact, conducted to the grommet by the brake lines and brake fluid. Consequently, the district court was entirely within its discretion to find Dr. Bissell s extreme heat theory to have been mere ipse dixit. J.A. 350. 8 Although Appellants may well be correct to argue that, in contrast with Dr. Bissell s extreme heat theory, his alternative defective because it failed theory is not merely ipse dixit, we nevertheless find it to be little more than an ipso facto statement. alternative factual theory assertions does In other words, it is true that his not rely underlying 8 on his any of extreme the unsupported heat theory. As noted above, although the district court noted Bosch s proffered evidence that the truck did not even have ZOPS calipers, but instead had rail slide calipers, the district court determined that it did not need to resolve that factual issue in order to render its decision on the motions in limine. J.A. 352 n.7 (citing J.A. 65 ¶¶ 19 20); see also J.A. 97 98 ¶¶ 13 14. Of course, the alleged absence of ZOPS calipers, if proven, would largely eviscerate Dr. Bissell s extreme heat theory, which was predicated on an NHTSA safety recall relating specifically to overheating in ZOPS calipers. See J.A. 88. 23 Indeed, his alternative theory specific to this case, at all. does not rely on any facts Instead, it simply posits that whenever brakes fail, they are, by definition, defective. In this sense, Dr. Bissell s alternative theory is far closer to a convenient, self-serving legal conclusion than a tested, factually supported, technical or scientific explanation for a physical phenomenon. Of course, we also note that Appellants cite no authority under Maryland law for the proposition that brakes are, in all cases, automatically considered defective, in a legally significant sense, simply because they fail. 9 Moreover, as the district court observed, [e]ven if Dr. Bissell were permitted to testify that the grommet was defective, Plaintiffs lack expert testimony as to causation. J.A. 355. Dr. Bissell s alternative theory does nothing to show that the claimed defect actually caused the brake failure in 9 In Phipps v. General Motors Corp., 363 A.2d 955 (Md. 1976), the Court of Appeals of Maryland indicated that certain malfunctions in new vehicles would constitute inherently unreasonable risks that would, even in the absence of expert testimony, suffice to support a reasonable inference of defect. Id. at 959. However, the same court explained in its recent decision in Crickenberger v. Hyundai Motor America, 944 A.2d 1136 (Md. 2008), that such an inference would not be supported in the absence of expert testimony with respect to a well-used vehicle, when the circumstantial evidence itself did not tend to The vehicle at issue eliminate other causes. Id. at 1144 45. in Crickenberger was four or five years old, and had 63,700 miles on it when it stopped working altogether. Id. at 1138. Similarly, the truck in this case was four or five years old, and had approximately 117,000 miles on it, at the time of the accident. 24 this case. At bottom, his alternative theory is premised on nothing more than the undisputed fact of a sudden brake failure in the truck, the discovery after the accident that the pedal rod was separated from the Booster, the distortion observed on the grommet after the accident, and the deposition testimony of the truck s driver, Page, which had been taken in the course of Appellants initial case in the Prince George s County Circuit Court. J.A. 213. Appellants are correct that Dr. Bissell did not have to prove scientifically that the truck s brakes failed suddenly when that fact was supported by Page s testimony and undisputed by the other parties. However, in order for Dr. Bissell s proposed testimony to be admissible, his opinion does have to show why, and how, his theory of causation proceeds from those undisputed facts. Appellants urge that Page s description of the circumstances of the brakes sudden failure is consistent with Dr. Bissell s theory that the grommet failed prior to, and thus caused, that sudden failure and the ensuing accident. Mere consistency, however, is not the applicable standard under Rule 702. 10 Instead, as Appellants themselves assert, [t]he test is whether the underlying data is reliable. 10 Br. of Appellants at Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (discussing [t]he need at the pleading stage for allegations plausibly suggesting (not merely consistent with) unlawful conduct to state a claim sufficiently to survive a motion to dismiss) (emphasis added). 25 15. Dr. Bissell s reports, however, are largely devoid of underlying scientific data for several aspects of his theories. In this respect, this case is somewhat reminiscent of Oglesby v. General Motors Corp., 190 F.3d Appellees cited in their brief. 244 (4th Cir. 1999), which In that case, the plaintiff s expert witness was clearly qualified to testify, but the content of his testimony was found to be unreliable, because it was based partially on incorrect facts and assumptions and generally lacked an adequate factual foundation. As noted above, Dr. Ornstein testified in the Dr. Blessings Heaven trial that [n]o one knows exactly what caused the pedal rod to separate from the Booster. reports provide contrary. no factual basis J.A. 69. for his Dr. Bissell s conclusion to the They do nothing to show that other possible theories of causation would be inconsistent, or even less consistent, with Page s subjective experience of the brake failure, or the other facts nothing to upon which exclude even Dr. the Bissell most relies. His commonsensical reports do alternative explanations, such as, for example, that the grommet s failure and the pedal rod s separation from the Booster were consequences, as opposed to causes, of the truck s collisions with multiple other vehicles and/or objects in the course of the accident. 26 To be sure, Appellants are correct to argue that their expert s testimony need not be proven 100% correct in order to be admissible and to preclude summary judgment against them. However, if an expert utterly fails to consider alternative causes or fails to offer an explanation for why the proffered alternative cause was not the sole cause, a district court is justified in excluding the expert s testimony. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4th Cir. 2001). With design, regard the to Dr. district Bissell s court proposed noted that, safer other alternative than briefly describing his design concept, he had not provided any further explanation for his alternative testing data, or cost data. statements regarding design J.A. 354. alternative anything more than his memory. any drawings, Instead, Dr. Bissell s designs Id. or are not based on Even if we were persuaded that Dr. Bissell s claims in this regard properly constituted experiential testimony, as opposed to technical or scientific testimony, as urged by Appellants, he still was required to explain how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts. Fed. R. Evid. 702 advisory committee s note. Dr. Bissell s reports do nothing to fulfill that requirement. We conclude, therefore, 27 that the district court did not abuse its discretion in granting the motions in limine to exclude Dr. Bissell s testimony. C. Our conclusion with respect to the district court s grant of the motions for summary judgment flows directly from the above analysis of the district court s rulings on the motions in limine. As noted above, under Maryland law, expert testimony is an indispensible element of products liability claims such as the one asserted in this case; res ipsa loquitur does not apply. See Mohammad, 947 A.2d at 607 10; Wood, 760 A.2d at 319; Jensen, 437 A.2d at 242. Consequently, in the absence of any admissible expert testimony from Dr. Bissell, the district court correctly concluded that Appellants would not be able to establish the necessary claims, elements and that of their without a negligence finding of or products defect liability predicated on those claims, Martin s loss of consortium claim also fails. J.A. 357. IV. For district all of court the did foregoing not abuse reasons, its we conclude discretion in that the granting the motions in limine filed by Bosch and the Third Party Appellees to exclude Dr. Bissell s expert testimony in its entirety. We also conclude that, in light of the propriety of the district court s rulings on the motions 28 in limine, and the resulting absence of expert testimony in support of Appellants claims, the district summary court judgment Appellees. did not filed by err in granting Appellees and the the motions Third for Party We therefore affirm the district court s judgment. AFFIRMED 29

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