Hicham Elkharroubi v. Six Flags America, LP

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1387
HICHAM ELKHARROUBI; LAMYA GHALA,
Plaintiffs - Appellants,
v.
SIX FLAGS AMERICA, LP; AZS INDUSTRIES, LLC; SPLASHTACULAR,
INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Timothy J. Sullivan, Magistrate Judge. (8:17-cv-02169-TJS)
Submitted: August 31, 2021 Decided: January 18, 2022
Before GREGORY, Chief Judge, HARRIS, Circuit Judge, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Jonathan C. Capp, San Diego, California; Cynthia Rosenberg, ROURKE & ROSENBERG
LLC, Baltimore, Maryland, for Appellants. David A. Skomba, Tamara B. Goorevitz,
Miranda D. Russell, FRANKLIN & PROKOPIK, PC, Baltimore, Maryland; James S.
Liskow, DECARO, DORAN, SICILIANO, GALLAGHER AND DEBLASIS, LLP,
Bowie, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hicham Elkharroubi and Lamya Ghala (“Plaintiffs”) commenced this civil action
against Six Flags America, LP (“Six Flags”), Splashtacular, Inc. (“Splashtacular”), and
AZS Industries, LLC (“AZS”), (collectively, “Defendants”) alleging that, under Maryland
law, Six Flags was liable for negligence and loss of consortium, and Splashtacular and AZS
were liable for negligence, products liability, and loss of consortium. Specifically,
Plaintiffs claimed that Six Flags’ negligent operation, maintenance, and inspection of the
Bonzai Pipelines water slide ride (“Bonzai Pipelines”), and Splashtacular and AZS’s
defects in product design and warnings for Bonzai Pipelines, were reasonably foreseeable
causes of Elkharroubi’s injury and Ghala’s subsequent loss of consortium. Defendants
moved to exclude one of Plaintiffs’ experts, Dr. Andres Calderón, and moved for summary
judgment. Plaintiffs also moved for summary judgment and moved to exclude Defendants’
expert testimony. The magistrate judge granted summary judgment in favor of Defendants
and denied Plaintiffs’ motion to exclude defense expert testimony. 1 On appeal, the
Plaintiffs challenge the magistrate judge’s grant of summary judgment to the Defendants
and denial of their motion in limine to exclude the Defendants’ expert testimony related to
maintenance and inspection activities. 2 We affirm.
1
The parties consented to a magistrate judge conducting proceedings in the case
and ordering the entry of a final judgment. See 28 U.S.C. § 636(c). Elkharroubi v. Six
Flags Am., LP, No. 8:17-cv-02169-TJS (D. Md., PACER No. 25).
2
Plaintiffs do not challenge the magistrate judge’s decision excluding their expert
witness, Dr. Andres Calderón. “A party waives an argument by failing to present it in its
opening brief or by failing to develop its argument—even if its brief takes a passing shot
2
We review a district court’s summary judgment decision de novo. McKiver v.
Murphy-Brown, LLC, 980 F.3d 937, 953, 955 (4th Cir. 2020). Viewing the facts and all
justifiable inferences in the light most favorable to the nonmoving party, “[s]ummary
judgment is appropriate only if the record shows ‘that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Woollard v.
Gallagher, 712 F.3d 865, 873 (4th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). To withstand
a motion for summary judgment, “the nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference upon another, or the mere
existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
2013).
Because federal jurisdiction over this case is based on diversity, we apply the choice
of law rules of the forum state, Maryland. Regarding the negligence claims, Plaintiffs
alleged that Defendants violated the Code of Maryland Regulations (“COMAR”), and that
violating COMAR proved a prima facie case of negligence. The magistrate judge found
that the evidence showed Defendants complied with the provisions of COMAR at issue,
while Plaintiffs had submitted no evidence to the contrary, and therefore Plaintiffs failed
to prove a prima facie case of negligence. The magistrate judge further determined that
without the excluded expert testimony from Calderón, Plaintiffs failed to present any
at the issue.” Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017)
(brackets and internal quotation marks omitted).
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evidence to establish either a breach of duty by Defendants or that such a breach caused
Plaintiffs’ injuries.
Under Maryland common law, the elements of a negligence claim are “(1) that the
defendant was under a duty to protect the plaintiff from injury, (2) that the defendant
breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss
or injury proximately resulted from the defendant’s breach of the duty.” Chicago Title Ins.
Co. v. Allfirst Bank, 905 A.2d 366, 378 (Md. 2006) (internal quotation marks omitted).
Referred to as the “Statute or Ordinance Rule,” “[a] duty may be established by statute
when the plaintiff is a member of the class of persons the statute was designed to protect
and the injury was of the type the statute was designed to prevent.” Gourdine v. Crews,
955 A.2d 769, 789 (Md. 2008) (internal quotation marks omitted). Further, “[p]roximate
cause is established by determining whether the plaintiff is within the class of persons
sought to be protected, and the harm suffered is of a kind which the drafters intended the
statute to prevent.” Polakoff v. Turner, 869 A.2d 837, 843, 847 (Md. 2005) (internal
quotation marks omitted). Thus, a plaintiff makes a prima facie case of negligence based
on the breach of a statutory duty by demonstrating “(a) the violation of a statute or
ordinance designed to protect a specific class of persons which includes the plaintiff, and
(b) that the violation proximately caused the injury complained of.” Id. at 840, 843, 847(internal quotation marks omitted).
Viewing the facts in the light most favorable to Plaintiffs, we conclude that the
magistrate judge did not err in determining that the Plaintiffs failed to establish a prima
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facie case of negligence against Defendants. 3 Further, even if Plaintiffs had shown a prima
facie case of negligence, we conclude, as the magistrate judge determined, that no
reasonable jury could find that Defendants proximately caused the injury. Thus, we
conclude that Plaintiffs fail to establish a genuine issue of material fact as to the negligence
claims against Defendants.
Turning to the products liability claims, Plaintiffs argue that evidence of Bonzai
Pipelines’ defects, with or without expert testimony, proves that Defendants are liable for
Elkharroubi’s injury. Under negligent and strict products liability theories of recovery, a
plaintiff must prove “three product litigation basics—defect, attribution of defect to seller,
and a causal relationship between the defect and the injury,” Ford Motor Co. v. Gen.
Accident Ins. Co., 779 A.2d 362, 369-70 (Md. 2001) (internal quotation marks omitted),
and “the major distinction between an action in strict liability in tort and one founded on
traditional negligence theory relates to the proof which must be presented by the plaintiff,”
Harig v. Johns-Manville Products Corp., 394 A.2d 299, 307 (Md. 1978) (internal quotation
marks omitted). The basic elements of negligence apply in negligence-based products
liability cases. See Gourdine, 955 A.2d at 779. Plaintiffs must allege “(1) that the
defendant was under a duty to protect the plaintiff from injury, (2) that the defendant
breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss
3
Because the record shows that Defendants did not violate COMAR, we do not
reach Plaintiffs’ two arguments relying on Statute or Ordinance Rule violations: (1) that
Defendants cannot rebut the presumption of negligence, and (2) that Maryland’s public
policy is frustrated by the alleged COMAR violations.
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or injury proximately resulted from the defendant’s breach of the duty.” Id. (internal
quotation marks omitted). “However, in an action founded on strict liability in tort, as
opposed to a traditional negligence action, the plaintiff need not prove any specific act of
negligence on the part of the seller.” Id. at 780 (internal quotation marks omitted). To
establish a products liability claim based on strict liability, Plaintiffs must prove that:
(1) the product was in defective condition at the time that it left the possession
or control of the seller, (2) that it was unreasonably dangerous to the user or
consumer, (3) that the defect was a cause of the injuries, and (4) that the
product was expected to and did reach the consumer without substantial
change in its condition.
Id. (internal quotation marks omitted). “The relevant inquiry in a strict liability action
focuses not on the conduct of the manufacturer but rather on the product itself.” Id.
(internal quotation marks omitted). A product may be defective in manufacture, design, or
by failing to have adequate warnings or instructions. Simpson v. Standard Container Co.,
527 A.2d 1337, 1339-40 (Md. App. 1987).
The magistrate judge determined that without expert evidence, Plaintiffs could not
establish that the breach of any duty by Defendants was the proximate cause of Plaintiffs’
injuries. On appeal, Plaintiffs argue that Defendants are liable for the Bonzai Pipelines’
defects causing the injury, with or without expert testimony, because (1) the design of the
drop gate did not include proper padding in the event of the drop gate malfunctioning, (2)
the operation and maintenance instructions were inadequate, and (3) the signage was
inadequate. Defendants respond that Plaintiffs have failed to provide the required expert
testimony proving causation, misrepresent testimony regarding the possibility of adding a
layer of padding to the drop gate, provide no evidence of defective manual instructions,
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and incorrectly assert that Elkharroubi’s doctor provided expert testimony on the proper
design of the drop gate when he testified that he has no such expertise.
Viewing the evidence in the light most favorable to Plaintiffs, we conclude that the
magistrate judge did not err in determining that the Plaintiffs did not raise a “genuine
dispute as to any material fact” regarding their products liability claims against Defendants.
Woollard, 712 F.3d at 873 (internal quotation marks omitted). Therefore, the magistrate
judge did not err in granting summary judgment to Defendants and denying relief on
Plaintiffs’ negligence, products liability, and loss of consortium claims.
Regarding the magistrate judge’s denial of Plaintiffs’ motion to exclude
Defendants’ expert testimony, “the admissibility of expert testimony in federal court sitting
in the diversity jurisdiction is controlled by federal law.” Bryte ex rel. Bryte v. Am.
Household, Inc., 429 F.3d 469, 476 (4th Cir. 2005) (internal quotation marks omitted).
“We review a district court’s decision on expert evidence for an abuse of discretion.”
United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018). “Owing
deference to the district court’s determination under the abuse of discretion standard,”
McKiver, 980 F.3d at 952, “[we] will only overturn an evidentiary ruling that is arbitrary
and irrational,” Gentry v. E. W. Partners Club Mgmt. Co., Inc., 816 F.3d 228, 239 (4th
Cir. 2016) (internal quotation marks omitted).
Based on the record, Defendants’ experts presented relevant testimony that rested
on reliable foundations. See Ancient Coin Collectors Guild, 899 F.3d at 318. Deferring to
the magistrate judge’s determination, McKiver, 980 F.3d at 952, there is no indication that
the decision to deny Plaintiffs’ motion seeking to bar Defendants’ experts was arbitrary or
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irrational, Gentry, 816 F.3d at 239. Thus, we conclude that the magistrate judge did not
abuse its discretion in denying Plaintiffs’ motion in limine to exclude Defendants’ expert
testimony.
We have carefully reviewed the parties’ briefs and the record and find no reversible
error. Accordingly, we affirm for the reasons stated by the magistrate judge. Elkharroubi
v. Six Flags Am. LP, No. 8:17-cv-02169-TJS (D. Md. Mar. 4, 2020). We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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