Horton v. Synthes (U.S.A.) ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2111
MARGARET SHAVER HORTON,
Plaintiff - Appellant,
versus
SYNTHES (U.S.A.),
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CA-03-419-7)
Submitted: April 29, 2005 Decided: May 25, 2005
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. McGarry, THE LAW OFFICE OF RICHARD MCGARRY, Roanoke,
Virginia, for Appellant. Lori J. Bentley, JOHNSON, AYERS &
MATTHEWS, Roanoke, Virginia; W. Kennedy Simpson, THOMPSON MILLER &
SIMPSON PLC, Louisville, Kentucky, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In this diversity action, 28 U.S.C. § 1332(a) (2000),
Margaret Shaver Horton appeals the district court’s grant of
judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(a), to
Synthes (U.S.A) (“Synthes”), a manufacturer of medical devices. A
plate and five screws manufactured by Synthes were placed in
Horton’s right leg to repair a break that resulted from an
automobile accident in March 2000. Horton’s leg failed to heal,
and two of the screws broke over an eighteen month period, until
the system was surgically removed and a different type of hardware
was inserted. Horton filed suit alleging breach of warranty as to
the screws. At the close of Horton’s evidence before a jury, the
district court granted Synthes’ motion for judgment as a matter of
law. On appeal, Horton alleges that she was entitled to an adverse
inference of defectiveness in light of the failure of one of
Synthes’ employees to appear to testify. She further asserts that
her case should have withstood the Rule 50(a) motion.
A district court has inherent power to impose a sanction,
including an adverse inference, for spoliation of evidence.
Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004).
Federal law governs the decision to impose such a sanction in
diversity cases. Id. “The spoliation of evidence rule allows the
drawing of an adverse inference against a party whose intentional
conduct causes not just the destruction of evidence . . . but also
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against one who fails to preserve or produce evidence—including the
testimony of witnesses.” Id. We conclude that Horton did not
preserve this issue for appellate review, as she never requested an
adverse inference on spoliation grounds in the district court. See
Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“Issues
raised for the first time on appeal generally will not be
considered.”).
Horton further argues that the district court erred in
granting judgment as a matter of law. We review de novo the
district court’s grant of a Fed. R. Civ. P. 50(a) motion, viewing
the evidence in the light most favorable to the nonmoving party.
Babcock v. Bellsouth Adver. & Publ’g Corp., 348 F.3d 73, 76 (4th
Cir. 2003). In a diversity action, the law of the site of the
injury, in this case Virginia, applies. Alevromagiros v. Hechinger
Co., 993 F.2d 417, 420 (4th Cir. 1993).
In Virginia, a product must be fit for the ordinary
purposes for which it is intended to be used. Slone v. Gen. Motors
Corp., 457 S.E.2d 51, 54 (Va. 1995). A plaintiff must establish
“(1) that the goods were unreasonably dangerous either for the use
to which they would ordinarily be put or for some other reasonably
foreseeable purpose, and (2) that the unreasonably dangerous
condition existed when the goods left the defendant’s hands.”
Logan v. Montgomery Ward & Co., 219 S.E.2d 685, 687 (Va. 1975).
Reviewing the evidence Horton presented, we conclude that she
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failed to show that the screws manufactured by Synthes were
unreasonably dangerous for their intended use. The metallurgist
who testified for Horton stated that he found no manufacturing
defect, and admitted that he was not qualified to comment on the
design of the device. The orthopedist called by Horton testified
that he had often used the same system with good results. He
admitted on cross-examination that a broken screw is not
necessarily defective in design or manufacture, and that, if a bone
does not heal, over time any piece of metal can break. We
conclude, even giving Horton the benefit of all inferences, that
she failed to establish her cause of action. Therefore, judgment
as a matter of law was properly granted.
Accordingly, we affirm the district court’s disposition
in this case. We deny Horton’s motion to allow attachments to the
reply brief as well as her motion for oral argument. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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