                                             Filed:    March 18, 1998


                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT



                            No. 97-2132
                         (CA-94-1878-CCB)



Cynthia Bernice White,

                                             Plaintiff - Appellant,

         versus

Toyota Motor Corporation,

                                               Defendant - Appellee.




                            O R D E R


    The Court amends its opinion filed March 3, 1998, as follows:

    On page 1, section 7, line 3 -- counsel "H. Bruce Dewey" is
corrected to read "H. Bruce Dorsey."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CYNTHIA BERNICE WHITE,
Plaintiff-Appellant,

v.                                                            No. 97-2132

TOYOTA MOTOR CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-94-1878-CCB)

Argued: January 26, 1998

Decided: March 3, 1998

Before LUTTIG, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and MORGAN, United States District Judge for the Eastern District
of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Simon Lopatto, III, Washington, D.C., for Appel-
lant. Joel Allen Dewey, PIPER & MARBURY, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: H. Bruce Dorsey, PIPER &
MARBURY, L.L.P., Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Dr. Cynthia B. White appeals an order dismissing by summary
judgment her diversity action against Toyota Motor Corporation
(Toyota) in which she sought damages for personal injuries on claims
of negligence, strict liability, and breach of warranty based on the
defective design of a head restraint. We affirm.

I.

On October 10, 1990, White purchased a new 1991 Toyota Celica
GT-S from a Toyota dealership in Prince George's County, Maryland.
The following day, White was involved in a rear-end collision while
stopped at a red light. Behind White (in the same lane) at the traffic
light was a stopped 1988 Honda operated by one Joseph Hunt. As
both were stationary, a 1983 Oldsmobile Cutlass driven by Charles
Starks crashed into the 1988 Honda causing it to accelerate forward
and collide with the rear of White's vehicle. At the point of impact,
the 1988 Honda was moving at a speed of approximately ten miles
per hour.

The collision totaled the 1988 Honda but caused only a minor dent
on White's vehicle. The day following the accident, White experi-
enced severe pain in her neck and back. Initially, she was treated with
back and neck braces, medication injections, and rest. When this
treatment proved unsatisfactory, White underwent both an electro-
myograph and a magnetic resonance imaging. These tests revealed
herniation of three sets of cervical discs into the spinal canal, with
two of the discs actually compressing the spinal cord. After being
referred to Dr. Arthur Cole (a neurosurgeon), White underwent disco-
pathy neurosurgery to relieve the herniation. A second surgery was
performed five months later after White continued to suffer pain and
the danger of permanent paralysis remained.

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White filed suit in Maryland state court against Toyota and Charles
Starks (the driver of the striking Oldsmobile). White's complaint
alleged claims under Maryland law of breach of warranty, negligence,
and strict liability, all based on a theory of defective design of the
head restraint in her vehicle as the proximate cause of her injuries.

Following removal of the action on Toyota's motion, the district
court established a scheduling order for the designation of experts
pursuant to Rule 26(a)(2). After White failed to designate any expert
witnesses by the appropriate deadline, she sought a revision of the
court's scheduling order. Toyota did not oppose White's request and
a revised scheduling order was established setting deadlines of July
30, 1995, and September 30, 1995, for designation and deposition
respectively. On July 31 (a day late), White designated six damages
experts. Despite the untimeliness of her filing, the district court
allowed this designation. A month later, White attempted to designate
a liability expert, an attempt opposed by Toyota. Initially, the court
barred White from calling any experts not named in her July 31 dis-
closure. After White moved for reconsideration of this order, the dis-
trict court allowed White to designate Anthony Sances and Donald
Eisentraut as liability experts "subject to the defendant's right to
depose these witnesses and have additional time to designate its own
experts." A discovery cutoff date of August 15, 1996 was then set.

The deposition of Sances was initially scheduled for July 8, 1996.
This deposition was postponed (without objection) until two days
later. On July 2, 1996, White unilaterally canceled the deposition of
Sances, citing Sances' desire to review the transcript and materials
prepared by Eisentraut before the deposition. Toyota refused to post-
pone this deposition and White filed a Motion for Protective Order
seeking to postpone Sances' deposition. On July 8, the court set
Sances' deposition for July 24 and, if a second day was necessary,
August 1. Ultimately, White withdrew Sances as an expert witness
and unilaterally canceled his deposition.

Following discovery, Toyota moved for summary judgment. On
November 5, 1996, (a day after the summary judgment motion dead-
line set by the court had expired) White filed a Motion for Leave to
File Motion for Summary Judgment and Supporting Papers Out of
Time. Motion for leave was denied. In addition, the court sua sponte

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agreed to hear Toyota's motion for summary judgment before
White's deposition of Toyota's liability experts.

In opposition to summary judgment, White submitted the affidavits
and deposition testimony of two experts. Donald Eisentraut, an engi-
neer, opined that the Toyota head-restraint's design was defective in
that it created a risk of a forced flexion type injury. Dr. Cole (White's
treating physician) stated unequivocally, however, that White's inju-
ries "occurred during the extension component of a flexion/extension
injury." Cole based his opinion on the lack of"injury to the anterior
portion of the vertebral bodies," a condition ordinarily associated with
hyper-flexion injury.

On June 19, 1997, the district court granted summary judgment in
favor of Toyota on all counts, concluding that White had failed to
present a forecast of evidence sufficient to support a finding that the
allegedly defective head restraint was the cause of any of White's
alleged injuries. This appeal followed.

II.

White challenges the grant of summary judgment in favor of
Toyota and the court's discretionary decision to reserve the deposi-
tions of Toyota's liability experts until after the court ruled on
Toyota's motion for summary judgment. We take these in turn.

A.

We review the district court's grant of summary judgment in favor
of Toyota de novo, construing the summary judgment materials in the
light most favorable to White. See Cavallo v. Star Enterprise, 100
F.3d 1150, 1153 (4th Cir. 1996).

Under Maryland law (the relevant substantive law in this diversity
action), a product liability action based on negligence or strict liability
requires White to prove, at a minimum, that there was (1) a defect,
(2) at the time the product left Toyota's control, and (3) that the
defect was the actual and proximate cause of White's injuries. See
Jensen v. American Motors Corp., Inc., 437 A.2d 242, 247 (Md. App.

                     4
1981). Toyota's motion and the district court's decision were based
solely upon failure of the evidence as forecast to raise a triable issue
of causation, specifically of cause-in-fact.

In resisting Toyota's motion challenging her ability to prove the
requisite causation, White relied upon the opinions of her two desig-
nated experts. One, Donald Eisentraut, an engineer, opined that the
Toyota head-restraint's design was defective in that it had a gap
between the bottom of the restraint and the top of the seat to which
it was attached by support columns. This gap he testified, created a
risk of a "flexion type" injury which results when the head and shoul-
ders are supported from the force of a rear-end collision, but the neck
is not. The gap's existence allows the neck to bend backward toward
the void between the supported portions of the shoulder and head as
the chin moves downward toward the chest. The resulting flexion
type injury is distinguished from an extension-type injury which
occurs when the unsupported head moves rearward, causing the chin
to move upward away from the chest.

Eisentraut's opinion thus laid the basis for proving the requisite
causation by evidence that White in fact sustained such a flexion-type
injury from the accident. But, Dr. Cole, White's attending physician,
instead opined unequivocally that White's injuries"occurred during
the extension component of a flexion/extension injury." Cole based
his opinion on his direct diagnosis that there was no "injury to the
anterior portion of the vertebral bodies" which is the condition ordi-
narily associated with hyper-flexion injury. JA 355-56.

Faced with these two expert opinions, the district court concluded
that "[n]either expert's testimony alone is sufficient to support a jury
verdict for Dr. White . . . and considered together their opinions do
not support a consistent theory of recovery." JA 799. The logic of this
assessment is impeccable. That the design may have been defective
in creating a particular risk would not, standing alone, prove the nec-
essary causation. Nor would the fact alone that White suffered a par-
ticular kind of injury. And, neither would the facts in combination
that the design created the risk of one kind of injury and the claimant
suffered another kind.

Nothing else appearing, therefore, we could find no error in the dis-
trict court's conclusion that White's forecast of evidence failed to

                     5
raise a triable issue on the essential causation element of her claims.
White suggests that there are two legal errors in the district court's
assessment of the causation issue that taint the conclusion. Neither
has merit.

The first, as we understand it, is that the court erred in requiring
exact proof of just how and when the injury occurred. That was
impossible, says White, given the fact that it occurred during "a
400-600 millisecond preventable or containable event." Appellant's
Br. at 38. In support of the proposition that no such exactitude of
proof was required, White relies on Blaw-Knox Construction Equip-
ment v. Morris, 596 A.2d 679 (Md. App. 1991), specifically on the
Maryland court's observation that once it was proven that an accident
would not have occurred but for a product defect, it was irrelevant
just how the claimant came to be in harm's way. Id. at 684.

But, here the district court did not find proof lacking on just how
or when the injuries occurred within the short elapsed time of the
actual event. Instead, it found proof lacking on the very fact found
dispositive of the causation issue in Blaw-Knox: that, however the
injury occurred, it would not have occurred but for the design defect.

The other error suggested by White invokes the Maryland rule that
in "enhanced-injury" or "second-collision" cases, once a claimant has
proved "a modicum of enhanced injuries" by reason of a manufactur-
er's design defect "the burden should shift to the defendants to appor-
tion damages inter se." See Valk Manufacturing Co. v. Rangaswamy,
537 A.2d 622, 632 (Md. App. 1988). But, neither is that rule apposite
here. Aside from the fact that only the manufacturer remained in the
action at trial, the very proof found lacking here was as to any
enhanced injuries caused in fact by design defect. Hence, under the
Maryland rule, there would have been no shifting of the burden to
apportion damages even had the other alleged tort-feasor remained in
the case.

B.

White also argues that the district court abused its discretion in
considering and deciding Toyota's motion for summary judgment
without providing White with an opportunity to depose Toyota's own

                    6
liability experts. We disagree. The district court's decision to consider
and rule on Toyota's motion for summary judgment as it did was well
within the court's broad authority to control its own docket. See
Hinkle v. City of Clarksburg, 81 F.3d 416, 426 (4th Cir. 1996) (noting
that "[d]istrict courts enjoy nearly unfettered discretion to control the
timing and scope of discovery"). In light of the consistent and disrup-
tive delays caused by White's failure to designate experts and her
inability to meet reasonable discovery deadlines, the district court
acted reasonably and in the interests of economy and justice in con-
sidering Toyota's motion prior to allowing deposition of Toyota's lia-
bility experts.

White's argument that this deposition testimony would have pro-
vided evidence in support of her causation theory fails to comprehend
the nature of her prima facie burden. It was up to her, not Toyota, to
establish her prima facie case. While it surely would have been error
to rely on expert testimony provided by Toyota without allowing
White an opportunity to depose, that did not occur here. Nor did the
court unfairly limit White's ability to discover, through deposition
and interrogatory, facts peculiarly in the possession of Toyota.

AFFIRMED

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