Peters-Martin v. Navistar International Transportation Corp.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1200
SHARON PETERS-MARTIN; STEVEN MARTIN; STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,
Plaintiffs - Appellants,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION;
INTERNATIONAL TRUCK AND ENGINE CORPORATION; ROBERT BOSCH
CORPORATION,
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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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, Jr., Joseph Cory Holdings, LLC (“Cory
Holdings”), and Ryder Truck Rental, Inc. (“Ryder” and,
collectively with Page and Cory Holdings, the “Third Party
Appellees”) to exclude the testimony of 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 Transportation Corporation
(“Navistar”), 1 for summary judgment. 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 East-West Highway in Prince George’s County,
Maryland. 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, but later
voluntarily dismissed that case, with prejudice. 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 filed a third-party complaint against the Third Party
Appellees. 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 23, 2009, thereby
concluding the district court proceedings. 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, Bosch manufactured the components of the
truck’s braking system that are the central focus of this
appeal: the Hydro-Max® Booster (the “Booster”) and Master
5
Cylinder (the “Cylinder”). These components provided power
assistance to the truck’s hydraulic braking system, and are
alleged to be the cause of the accident. The Booster 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 from the Booster when examined
after the accident. 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. J.A. 189–90, 207–
11. 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 mention certain details of
6
those other lawsuits briefly in order to provide context. Page
and Ryder were named as defendants in all six cases. 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 case, however, is the only case involving this
accident in which International Truck has been named as a
defendant.
Shortly after the accident, Travelers Insurance Company,
Ryder’s insurer, retained Engineering and Fire Investigations
(“EFI”) to examine the truck and its braking system. Dr. Harold
Ornstein conducted the inspection on December 12, 2002, and
issued a report dated January 10, 2003. J.A. 296–97. 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.” J.A. 301.
Dr. Ornstein’s review of the United States Department of
Transportation National Highway Traffic Safety Administration
(“NHTSA”) records did not reveal any recalls or technical
service bulletins applicable to the model truck involved in this
case. Id.
7
Dr. Ornstein testified on behalf of the defendant in
another one of the lawsuits relating to this accident, Dr.
Blessings Heaven International Association of Women Clergy v.
Travelers Insurance, in the Prince George’s County Circuit
Court, Civ. Action Law No. 03-07861, on May 8, 2006. 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. J.A.
201. When asked for his opinion about what caused the brake
failure, Dr. Ornstein stated that “[i]t was a physical
separation of two parts of a component that either were
defective by very small amounts that you can’t determine, or had
not worn the way they were supposed to. It’s basically, nothing
is perfect in this world.” J.A. 200. When asked why the pedal
rod came out, Dr. Ornstein replied, “Well, we don’t know. No
one knows exactly what caused it.” J.A. 69. 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. The plaintiff never produced Dr.
Bissell for deposition, choosing instead to rely on Dr.
Ornstein’s prior trial testimony in Dr. Blessings. After
hearing argument, the Witham trial court found that the
testimony of Dr. Ornstein was not sufficient under Maryland law
to support even a prima facie case against Bosch that the Hydro-
Max® 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 “will transfer up the brake lines to the master
cylinder and thence to the Hydro-Max booster, raising the
operating temperature of the equipment” to an “uncertain”
temperature. J.A. 89. 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, and cited no prior instances of such a problem
occurring with the grommet. He also failed to 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. Bissell’s second report, dated March 7, 2007, was
prepared for Appellants’ counsel as talking points for a
mediation session in the case. J.A. 77. 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 opined that the grommet
11
failure he described “constitute[d] a serious design defect
requiring recall of this braking system and redesign of the
brake pedal retention system.” Id.
Noting that “[t]he grommet . . . had abraded in its
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 or irrationally, fails to consider judicially
recognized factors constraining its exercise of 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 testimony is both sufficiently
reliable and relevant. 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 evidence, and
careful instruction on the burden of proof.’” 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. at141—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
not ‘rely on anything like a scientific method.’” Id. (quoting
Fed. R. Evid. 702 advisory committee’s note). Consequently,
although “‘experience alone—or experience in conjunction with
other knowledge, skill, training or education—may . . . provide
a sufficient foundation for expert testimony,’” id. (quoting
Fed. R. Evid. 702 advisory committee’s note), the “district
court’s task in examining the reliability of experiential expert
testimony is therefore somewhat more opaque.” Id.Nevertheless, “the district court must . . . require an
15
experiential witness 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.’” 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.” Pueschel v. Peters, 577 F.3d 558, 563 (4th
2009). 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 the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); 5 Celotex
Corp. v. Catrett, 477 U.S. 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. Br. of Appellants
at 18. In other words, it is undisputed that, without Dr.
Bissell’s expert testimony, that claim cannot survive Appellees’
motions for summary judgment. Consequently, we need not address
Appellees’ arguments 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 of Dr. Bissell’s expert 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. Dr. Bissell opined that the
grommet failed because it had been softened by exposure to
extreme heat, which had rendered it susceptible to distortion of
its shape. Dr. Bissell further opined that such extreme heat
had been 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 system is such that it cannot be monitored or
checked for wear or damage, Dr. Bissell asserts, citing Dr.
Ornstein’s testimony in the Dr. Blessings trial, that the
grommet itself must be fail-safe. Consequently, Appellants
argue that any failure of the grommet would, by 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 to underscore the importance of firsthand
examination. See J.A. 94 (including as an element of Dr.
Bissell’s opinion in his October 16, 2006 report that “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, constitute an entirely adequate and reliable
methodology for an expert to employ, especially where
examination or testing of the allegedly defective product itself
is impossible, impracticable, or would implicate issues of
20
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. Consequently, Dr. Bissell lacked a factual basis
for his conclusions that (1) the distortion observed in the
grommet was, in fact, caused by exposure to extreme heat, (2)
the calipers on the truck did, in fact, generate heat
sufficiently extreme to distort the grommet, and (3) such
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. In other words, it is true that his
alternative theory does not rely on any of the unsupported
factual assertions underlying his “extreme heat” theory.
8
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 does not rely on any facts
specific to this case, at all. 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
eliminate other causes. Id. at 1144–45. The vehicle at issue
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.” Br. of Appellants at
10
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 244 (4th Cir. 1999), which
Appellees cited in their brief. 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. J.A. 69. Dr. Bissell’s
reports provide no factual basis for his conclusion to the
contrary. 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 upon which Dr. Bissell relies. His reports do
nothing to exclude even the most commonsensical 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 regard to Dr. Bissell’s proposed safer alternative
design, the district court noted that, other than briefly
describing his design concept, he had not provided “any further
explanation for his alternative design” or any “drawings,
testing data, or cost data.” J.A. 354. Instead, “Dr. Bissell’s
statements regarding alternative designs are not based on
anything more than his memory.” Id. 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 elements of their negligence or products liability
claims,” and that without a finding of defect predicated on
those claims, “Martin’s loss of consortium claim also fails.”
J.A. 357.
IV.
For all of the foregoing reasons, we conclude that the
district court did not abuse its discretion in 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 in limine, and the resulting
28
absence of expert testimony in support of Appellants’ claims,
the district court did not err in granting the motions for
summary judgment filed by Appellees and the Third Party
Appellees. We therefore affirm the district court’s judgment.
AFFIRMED
29