                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-1333


JEFFREY S. HODGES; TOMMY LEE BONDS; JOHN PAUL SPANGLER,

                 Plaintiffs – Appellants,

           v.

FEDERAL-MOGUL CORPORATION; Q-TECH EQUIPMENT & SERVICES OF
THE CAROLINAS, L.L.C.; CARRINGTON ENGINEERING SALES CO.;
CARRINGTON ENGINEERING SALES; DUSTEX CORPORATION; THE KIRK
& BLUM MANUFACTURING COMPANY; K&B DUCT,

                 Defendants - Appellees,

           and

CARRINGTON   ENGINEERING       SALES    COMPANY,    LLC;     CECO
ENVIRONMENTAL CORPORATION,

                 Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:12-cv-00362-MFU-RSB)


Argued:   May 12, 2015                        Decided:     July 8, 2015


Before MOTZ, KING, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Edward Kyle McNew, MICHIEHAMLETT, PLLC, Charlottesville,
Virginia, for Appellants.  Monica Taylor Monday, GENTRY, LOCKE,
RAKES & MOORE LLP, Roanoke, Virginia, for Appellees. ON BRIEF:
Neal Stanley Johnson, JOHNSON LAW PLC, Roanoke, Virginia; Peter
Brent Brown, BROWN & JENNINGS PLC, Roanoke, Virginia, for
Appellants. Guy M. Harbert III, James J. O’Keeffe IV, Daniel R.
Sullivan, GENTRY LOCKE RAKES & MOORE LLP, Roanoke, Virginia, for
Appellee Federal-Mogul Corporation; David Drake Hudgins, HUDGINS
LAW FIRM, Alexandria, Virginia, for Appellee Dustex Corporation;
Bevin Ray Alexander, Jr., James Barrett Lucy, FREEMAN, DUNN,
ALEXANDER, GAY, LUCY & COATES, P.C., Lynchburg, Virginia, for
Appellees Q-Tech Equipment & Services of the Carolinas, L.L.C.
and Carrington Engineering Sales Co.; Donald Edward Morris, LAW
OFFICES OF ANTONY K. JONES, Richmond, Virginia, for Appellees
The Kirk & Blum Manufacturing Company and K&B Duct.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Jeffrey S. Hodges, Tommy Lee Bonds, and John Paul Spangler

(the “plaintiffs”) sustained serious injuries on December 31,

2010,       from    a    fire     that    occurred     while       they    were       cleaning

aluminum        dust      from     a     production       facility        in    Blacksburg,

Virginia.           The plaintiffs commenced this civil action in the

Western       District     of     Virginia    on    August     6,    2012,       seeking      to

recover        damages     on     claims     that     defective      and        unreasonably

dangerous       safety      equipment      had     caused    their        injuries.        The

defendants          —    including       appellees        Federal-Mogul         Corporation

(“Federal-Mogul”); Q-Tech Equipment & Services of the Carolinas,

L.L.C.        and       Carrington       Engineering        Sales         Co.    (together,

“Carrington”);           Dustex    Corporation       (“Dustex”);      and       The    Kirk   &

Blum        Manufacturing        Company     and    K&B     Duct    (together,          “K&B”)

(collectively, the “defendants”) — played various roles in the

design, manufacture, installation, and maintenance of the safety

equipment.          Following discovery, the defendants moved to exclude

the opinions of the plaintiffs’ proposed experts under Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and

for summary judgment. 1                For reasons set forth in its Memorandum


        1
       When the summary judgment and Daubert motions were filed,
two additional named defendants — Carrington Engineering Sales
Company, LLC and CECO Environmental Corporation — had already
been dismissed.      The plaintiffs do not challenge those
dismissals.


                                              3
Opinion of March 7, 2014, the district court granted the Daubert

motions and awarded summary judgment to the defendants.                                See

Hodges v. Federal-Mogul Corp., No. 7:12-cv-00362 (W.D. Va. Mar.

7, 2014), ECF No. 149 (the “Opinion”). 2                    In this appeal, the

plaintiffs     contest      solely   the       summary    judgment      awards.        As

explained below, we vacate and remand.



                                        I.

                                        A.

     The      fire    underlying     this       civil    action    occurred       in    a

production     facility      (the    “facility”)         owned    and   operated       by

Federal-Mogul        in   Blacksburg,   where      it    manufactures     automotive

bearings. 3     In 2002 and 2003, Federal-Mogul added an aluminum

bonding line that involved sanding and brushing aluminum and

steel strip.         A byproduct of those operations is aluminum dust,

which is highly combustible.                   Federal-Mogul installed a dust

collection system to safely remove and dispose of the aluminum

dust (the “dust collection system”).                The dust collection system



     2 The district court’s unpublished Opinion is found at J.A.
4160-93.   (Citations herein to “J.A. __” refer to the contents
of the Joint Appendix filed by the parties in this appeal.)
     3 We recite the facts in the light most favorable to the
plaintiffs, as the nonmoving parties.    See Covol Fuels No. 4,
LLC v. Pinnacle Mining Co., LLC, 785 F.3d 104, 106 n.2 (4th Cir.
2015).



                                           4
utilized   fans    to    capture   the    dust         and      transport     it   through

ductwork located along the facility’s ceiling.                              The ductwork

extended through an exterior wall, turned at a right angle, and

ultimately      disposed   of   the   dust        in    a       structure     outside   the

facility that was called a “baghouse.”                          Also connected to the

ductwork was a rectangular damper box (the “back-blast damper”)

that was mounted to the facility’s exterior wall.                              Inside the

back-blast damper was a damper door, which was hinged at the

top.    If the explosive dust in the baghouse ignited, the back-

blast damper was supposed to prevent the fire from entering the

facility through the ductwork.

       In 2010, Federal-Mogul initiated “a dust mitigation effort

in its plants worldwide,” and hired LCM Corporation (“LCM”) to

inspect and remediate the Blacksburg facility.                           See J.A. 116.

On   December    30,    2010,   LCM   employees             —    including     plaintiffs

Hodges and Bonds — performed an inspection of the facility and

discovered that three to five inches of dust had accumulated in

the ductwork above the aluminum bonding line.                               The following

day, Hodges and Bonds returned to the facility with plaintiff

Spangler to clean that ductwork.                   Unaware that the dust was

combustible, the plaintiffs wore flammable Tyvek suits.

       Hodges    and    Bonds   mounted       a   scissor         lift   to    reach    the

ductwork, approximately twenty to thirty feet from the ground.

They extracted the dust with a vacuum hose connected to a truck

                                          5
located just outside of the facility.                      Spangler operated the

truck, which ran idly and controlled the power of the vacuum

hose.     After cleaning the portion of the ductwork that faced

inside the facility, Hodges and Bonds turned around and began

cleaning the portion of the ductwork facing the baghouse.                          They

were then approximately twenty feet from the exterior wall, and

Hodges held both a flashlight and the vacuum hose, while Bonds

stood behind Hodges and helped him control the hose.

      Using      the   flashlight,      Hodges      looked    into    the    ductwork,

toward the baghouse.            He saw several inches of accumulated dust

that “kind of varied” in height “and went all the way back out

to outside the building.”              See J.A. 2312.          Hodges was able to

see into the back-blast damper and past the damper door, which

was partially propped open by dust.                 As Hodges and Bonds cleaned

the     second     section       of    the       ductwork,     they    had    trouble

manipulating      the    hose    and   reaching      the     dust,    and   also   felt

shocks of static electricity.                    As a result, Hodges and Bonds

duct-taped a PVC extension to the hose to lengthen and stabilize

it.      In order to reduce the static electricity, Hodges asked

Spangler to go outside to the vacuum truck and decrease its

power.     Spangler obliged and began walking to an exit door that

was propped open, heading toward the direction of the baghouse.

      At that time, an explosion occurred and fire spread through

the ductwork.          Hodges saw “a flash of a fireball” emanate from

                                             6
outside the facility beyond the back-blast damper, coming toward

him.       See J.A. 2312.       Spangler, having nearly reached the exit,

saw a “bright white light” that “came at [him] from the front.”

Id. at 2675.          The baghouse exploded, and flames spewed out of

the    ductwork.          The   Tyvek   suits    donned   by   Hodges    and   Bonds

promptly      caught      fire,    as   did     Spangler’s     hat.      All   three

plaintiffs sustained serious injuries.

                                          B.

                                          1.

       After commencing this civil action in the Western District

of    Virginia       on   August   6,   2012,    the   plaintiffs     filed    their

operative Amended Complaint on December 26, 2012.                       The Amended

Complaint alleges seven causes of action:

       •    Count I is brought against Federal-Mogul, alleging
            that the company was negligent in numerous respects,
            including its role in the design and installation of
            the dust collection system.    In addition, Count I
            asserts that Federal-Mogul negligently failed to
            perform routine maintenance on the system.

       •    Counts II and III are against Carrington, the
            company that sold and installed the dust collection
            system to Federal-Mogul.      Count II alleges that
            Carrington breached several warranties by supplying
            Federal-Mogul with a blast-back damper that was
            defective and not fit for its particular purpose.
            Count III raises a negligence claim, asserting that
            Carrington negligently designed and installed the
            dust collection system so that the airflow in the
            system   was   too  weak   to    prevent  dust  from
            accumulating in the ductwork and back-blast damper.

       •    Counts    IV and V      allege warranty          and negligence
            claims     against      Dustex,  which            designed  and

                                           7
          manufactured the baghouse. Those counts assert that
          Dustex designed the baghouse in an unsafe manner,
          without sufficient venting to prevent an explosion
          in the baghouse from entering the facility.

      •   Counts VI and VII name K&B, which designed and
          manufactured the back-blast damper.      Those counts
          raise warranty and negligence claims, respectively,
          alleging that the damper door failed to prevent the
          fire from passing through the back-blast damper and
          into   Federal-Mogul’s   facility,   and    that  K&B
          negligently designed the back-blast damper.

      Following the completion of discovery, the defendants filed

their Daubert motions as well as the summary judgment motions at

issue in this appeal.           The plaintiffs maintained that the fire

originated in the baghouse and travelled through the ductwork

and into the facility, passing through the back-blast damper.

To   show   that   the   fire    started     outside    of   the    facility    and

travelled into it, the plaintiffs relied heavily on Hodges’s

deposition    evidence    that    he   personally      observed     the   fireball

emanate toward him from outside the facility.                      That evidence,

the plaintiffs maintained, was corroborated by other evidence of

record, including, inter alia:              Spangler’s deposition testimony

that he saw a bright flash and felt a blast coming from the

direction    of    the   baghouse;     surveillance      video      footage    that

showed changes in lighting and shadows as the events unfolded;

and pictures of the ductwork and the baghouse taken following

the fire.




                                        8
      In addition, the plaintiffs relied on their two experts,

Patrick McGinley and Martin Schloss, who offered opinions on

three issues.      First, both opined that the fire was caused by an

exothermic    reaction   (or,        a     spontaneous       combustion)   in    the

baghouse     resulting       from        aluminum     dust     interacting      with

condensation (the “causation opinions”).                 Second, both McGinley

and Schloss — relying on Hodges’s deposition evidence — opined

that the fire originated in the baghouse and then spread through

the   back-blast    damper    and    into       the   facility’s   ductwork     (the

“origin opinions”).      Third, Schloss opined that defects in the

dust collection system permitted the fire to enter the facility,

thus causing the plaintiffs’ injuries (the “defect opinion”).

According to Schloss’s defect opinion, the baghouse was designed

and manufactured with insufficient venting, failing the safety

standards     established       by        the     National      Fire   Protection

Association (the “NFPA”). 4         As a result, if a combustion occurred

in the baghouse, the structure could not release the pressure in

a controlled manner.         The defect opinion further concluded that

the back-blast damper was defectively designed and constructed,

failing the NFPA standards because it was improperly welded and


      4The NFPA is a private, professional organization that
“among other things, publishes product standards and codes
related to fire protection.”     Allied Tube & Conduit Corp. v.
Indian Head, Inc., 486 U.S. 492, 495 (1988).



                                           9
made from the wrong gauge of steel.                         As a result, the back-blast

damper was unable to withstand the expected pressures.

       In   support         of     their        summary           judgment       motions,       the

defendants       pursued         several       contentions,             including       that    the

plaintiffs      could       not    sufficiently            prove     proximate      cause,      and

that     the     plaintiffs’            contributory              negligence       barred      any

recovery.             Relevant         here,         the        defendants       disputed       the

plaintiffs’       theory          of     how       and      where       the     fire     started.

Specifically, they maintained that the fire was caused by the

static      electricity           that       the      plaintiffs          encountered          when

manipulating the vacuum hose in the ductwork.                                    That is, the

defendants posited that the fire originated inside the facility

and then spread through the ductwork in both directions — to

where Hodges and Bonds were standing and also outside to the

baghouse,      which     was      destroyed.               In    that   scenario,        the   dust

collection system did not malfunction or contribute in any way

to the plaintiffs’ injuries.

       In arguing that the plaintiffs could not show a genuine

dispute of material fact, the defendants maintained that certain

of the plaintiffs’ evidence should be rejected.                                   To that end,

the    defendants       relied         on   their          Daubert      motions     to    exclude

McGinley’s       and    Schloss’s           opinions.             The    defendants       further

asserted       that    no    consideration            should       be    given    to     Hodges’s

deposition       testimony         that        the     fire       began       outside     of    the

                                                10
facility.        Hodges had testified that he recalled the damper door

being hinged “from the center,” allowing him to “see over the

top    of   it    from     the      center    up.”        See    J.A.    2373.        It   is

undisputed, however, that the damper door actually hinged at the

top, which means that Hodges would have been unable to see “over

the top of it.”           Id.       Thus, the defendants urged that Hodges’s

evidence was necessarily inaccurate.                      The defendants maintained

that, absent their expert opinions or Hodges’s evidence, the

plaintiffs could not show a genuine dispute of material fact,

and thus could not survive summary judgment.

                                              2.

       In   its    March      7,    2014    Opinion,   the       district     court   first

addressed the Daubert challenges to the causation and origin

opinions, finding each set of opinions insufficiently reliable.

The causation opinions were rejected because the court found

that    they     were    based       on    nothing   more       than   “conjecture     that

conditions conducive” to an exothermic reaction were present.

See Opinion 11.          With respect to the origin opinions, the court

observed        that    both       McGinley    and   Schloss       relied     heavily      on

Hodges’s deposition testimony, which — as is further explained

below       —    the     court       deemed    to    be     “physically        impossible

testimony.”        Id. at 22.             The court concluded that the experts’

misplaced reliance on Hodges indicated that the origin opinions

were    premised         on      “advocacy”        rather       than    “on    scientific

                                              11
methodology.”     Id.   The court failed to address Schloss’s defect

opinion or directly assess the Daubert motions as they related

thereto.     The court, however, ruled that “[t]he opinions offered

by plaintiffs’ experts . . . are . . . inadmissible under Rule

702,” excluding the expert opinions in their entirety.                         Id. at

34.

       Next, the district court turned to the summary judgment

motions,     applying   Virginia’s         substantive         law.      The    court

observed that the viability of the plaintiffs’ claims depended

on whether they could show that the fire originated outside of

the facility.     See Opinion 26.          Assessing the evidence relied on

by    the    plaintiffs,      the       court     first   considered          Hodges’s

deposition testimony that he was able to see the fireball enter

the facility from beyond the damper door.                 The court scrutinized

his statement that “I could see over the top of [the damper

door]   from   the   center      up,”    see    J.A.   2373,    in    light    of   the

parties’ agreement that the damper door hinged at the top.                          The

court then determined that Hodges’s testimony was “physically

impossible,” and therefore “does not provide any basis for a

jury to do anything but speculate” that the fire began outside

of    the   facility.      See    Opinion       27.    Accordingly,      the    court

discredited Hodges’s testimony.                 Id. (citing Feliciano v. City

of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013)).



                                          12
       Turning    to    the   remainder         of    the    plaintiffs’       evidence      —

Spangler’s deposition testimony, the surveillance footage, and

the post-accident pictures — the district court concluded that

none of it provided a nonspeculative basis to find that the fire

originated       outside      of    the       facility.          Overall,       the    court

determined that, “[a]t most, plaintiffs’ evidence taken together

and viewed in the light most favorable to them, leaves the jury

completely at sea as to the cause and origin of the fire and

explosion in this case.”                  See Opinion 29.           According to the

court,    the    plaintiffs        had    not       satisfied    their    burden,      under

Virginia law, to establish their claims “beyond the realm of

‘conjecture, guess, or random judgment upon mere supposition.’”

Id. at 30 (quoting Chesapeake & O. Ry. Co. v. Whitlow, 51 S.E.

182,   184   (Va.      1905)).       Thus,      the     court    determined      that     the

defendants      were    entitled         to   summary        judgment    on    each    claim

alleging     design     and    manufacturing           defects    in     the    back-blast

damper and baghouse.

       Finally, the district court addressed the plaintiffs’ sole

non-product-defect theory of liability:                        that Federal-Mogul was

negligent by failing to protect the plaintiffs from the known

dangers    of    aluminum     dust.           The    court    determined       that,    as   a

matter of law, Federal-Mogul acted reasonably in seeking out

LCM, an expert in hazardous waste removal, and “in assuming LCM

and the plaintiffs, as hazardous waste removal experts, would

                                               13
determine    both   the   substance       they    were   dealing   with   and   the

proper method for removing it.”                  See Opinion 33.      The court

accordingly concluded that Federal-Mogul was entitled to summary

judgment on all theories of negligence.

     The    plaintiffs     have       timely   noticed   this   appeal,   and    we

possess jurisdiction pursuant to 28 U.S.C. § 1291.



                                         II.

     We    review   de    novo    a    district    court’s   award   of   summary

judgment.     See Desmond v. PNGI Charles Town Gaming, LLC, 630

F.3d 351, 354 (4th Cir. 2011).             In so doing, “we are required to

view the facts and all justifiable inferences arising therefrom

in the light most favorable to the nonmoving party, in order to

determine whether there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Libertarian Party of Va. v. Judd, 718 F.3d 308, 312-13 (4th Cir.

2013) (internal quotation marks omitted).                A fact is material if

it “‘might affect the outcome of the suit under the governing

law.’”     Henry v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011) (en

banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)).




                                          14
                                       III.

                                          A.

     On appeal, the plaintiffs contend that the district court

erred in concluding that they had not shown a genuine factual

dispute regarding the fire’s origin, and thus improperly awarded

summary judgment to the defendants.               To prevail on their claims,

the plaintiffs must establish that the fire originated outside

of the facility — only then could the alleged defects in the

dust collection system have caused their injuries.                      See Br. of

Appellants 13 (“If [the fire] started inside [the facility],

then the Plaintiffs lose.”); see also Logan v. Montgomery Ward &

Co, Inc., 219 S.E.2d 685, 687-88 (Va. 1975) (explaining that, in

product   liability         actions   involving      negligence     and    warranty

claims, Virginia law requires plaintiff to show that defendant’s

breach of duty to plaintiff was proximate cause of plaintiff’s

injuries).       It    is    undisputed    that     Hodges’s     testimony    —   if

credited — could support a reasonable inference that the fire

began   outside   of     the   facility.       It    is   also   undisputed    that

Hodges’s testimony recalling that “it looked like [the damper

door] pivoted from the center,” allowing him to “see over the

top of [the door] from the center up,” see J.A. 2373, was not

physically possible, as the damper door hinged from the top.

     Where   a        witness’s    deposition       testimony     “is     blatantly

contradicted by the record, so that no reasonable jury could

                                          15
believe it,” an alleged factual dispute created by the testimony

need not be credited and “will not defeat an otherwise properly

supported motion for summary judgment.”           Scott v. Harris, 550

U.S. 372, 380 (2007) (internal quotation marks omitted).               On

this record, however, we are satisfied that Hodges’s evidence

regarding the fire’s origin was not physically impossible and

thus should have been credited for summary judgment purposes.

     Importantly, Hodges wavered and qualified his description

of the damper door’s configuration.       Although the district court

focused on Hodges’s statement that he saw “over the top of” the

door,    the   record   reveals   that   Hodges   was   actually    quite

uncertain:

     Q   [Did the damper door have] a hinge at the top?

     A I don’t know. I know that I could see the [damper
     door] that was in there and to me it looked like it
     pivoted from the center, but I don’t know.

     Q That’s what I’m trying to find out. Where you saw
     that could you see a gap on the side, the top or the
     bottom?

     A   I could see over the top of it from the center up.

                                   ***

     Q   So, [the damper door] looked like to you that it
     hinged on the top and opened up at the bottom?

     A It hinged. I don’t know for sure if it was the top
     or the side, but it . . . hinged somewhere inside the
     pipe.

J.A. 2373, 2391 (emphasis added).        Hodges’s testimony was thus

inconsistent about where the damper door was hinged.               Viewing

                                   16
the facts in the plaintiffs’ favor, Hodges was most assuredly

unsure about the damper door’s configuration, and his testimony

could not be rejected as a matter of law.

       Additionally,        the    record    does    not   blatantly       contradict

Hodges’s testimony that he saw through the propped-open damper

door and observed the fire emanate from outside the facility.

The damper door was circular in shape and held open by several

inches of dust.         Openings would have formed from the base of the

ductwork and up along both sides of the damper door.                             Other

openings could also have existed underneath the damper door,

given that the dust was not uniform in height.                        Hodges could

well have seen through those openings around the damper door.

In fact, Hodges described — correctly — a bend in the section

of ductwork connecting the back-blast damper to the baghouse,

see J.A. 2313, supporting the plaintiffs’ position that Hodges

could see past the damper door.                  Given that Hodges was able to

view    the   ductwork      past   the    black-blast      damper,    he     certainly

would    have    been    able      to    observe     the   bright    “flash”     of   a

“fireball”      enter    into      the    facility    in   the   dark      and   dusty

ductwork.       Id.     Therefore, even if Hodges was mistaken in his

description      of   the    damper      door’s     configuration,      it    was   not

physically impossible for him to have seen the fire emanate from

beyond the back-blast damper.



                                            17
       Overall, the issue raised by Hodges’s testimony that he saw

over the top of the damper door is an issue of credibility, and

the district court erred by assessing Hodges’s credibility and

rejecting       his    evidence    at    the       summary    judgment       stage.        See

Anderson       v.     Liberty   Lobby,    Inc.,       477     U.S.    242,    255     (1986)

(“Credibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury

functions, not those of a judge, [when] he is ruling on a motion

for summary judgment . . . .”).                    Rather, the inconsistencies and

possible errors in Hodges’s testimony should be considered and

resolved by a jury.             See United States v. Harris, 995 F.2d 532,

535    (4th    Cir.     1993)   (“[J]urors         using     common   sense    and     their

faculties       of     observation      can    judge        the   credibility         of   an

eyewitness          identification,      especially          since    deficiencies         or

inconsistencies in an eyewitness’s testimony can be brought out

with       skillful    cross-examination.”).               Viewing    the    evidence       of

record in the plaintiffs’ favor — as we must — we are satisfied

that Hodges’s testimony creates a genuine issue of whether the

fire originated outside of the facility. 5



       5Because Hodges’s evidence is sufficient to create a
genuine issue on whether the fire started outside of the
facility, we need not analyze whether Spangler’s testimony or
the surveillance video would similarly create a genuine issue.
The plaintiffs primarily rely on that evidence to corroborate
Hodges.   See Br. of Appellants 18-19 (arguing that Spangler’s
(Continued)
                                              18
                                               B.

     The next issue is whether, as the defendants argue, the

district court’s summary judgment awards should be affirmed on

an alternative ground.                 See Hegna v. Islamic Republic of Iran,

376 F.3d 226, 232 n.3 (4th Cir. 2004) (recognizing that we are

“entitled       to   affirm       the     district        court’s      judgment       on     [an]

alternative      ground”         that    was    raised      by     the      parties    in     the

district       court    and       is     apparent        from    the     record).            More

specifically,        the       defendants      assert      that,    even      if    the     court

erred    and    Hodges’s        testimony      is   sufficient         to    show     the    fire

started outside of the facility, the plaintiffs have not proven

a genuine factual issue concerning whether the alleged defects

in the dust collection system proximately caused the plaintiffs’

injuries.

     Notably,        the       parties    dispute        whether    the      district       court

ruled    on    proximate        cause.      The     defendants         maintain       that    the

court    made    such      a    ruling     when     it    concluded         that    there     was

“simply no proof of a defect in the baghouse or damper that

caused    plaintiff’s           injuries    beyond        the    realm      of     conjecture,

guess, or random judgment upon mere supposition.”                                  See Opinion

30 (internal quotation marks omitted).                           But that statement of



testimony and video evidence “buttress[]” and are “corroborative
of Hodges’s testimony”).



                                               19
the court followed — and was explicitly made “[i]n light of” —

its   conclusion         that    the    plaintiffs     had    produced      no       evidence

showing that the fire started outside the facility.                           See id. at

29.

      The Opinion therefore does not assess whether the sum of

the plaintiffs’ evidence — including Hodges’s testimony — could

lead a reasonable jury to conclude that any one or more of the

defendants        proximately      caused       the   plaintiffs’      injuries.             In

these circumstances, we decline to resolve that issue in this

appeal,     in    light    of    “the     general     rule    . . .    that      a    federal

appellate        court    does    not     consider    an     issue    not   passed       upon

below.”      Singleton v. Wulff, 428 U.S. 106, 120 (1976). 6                                 The

proximate cause analysis is highly complex, and given that it

was   not   thoroughly          briefed    on   appeal,      the   district          court   is

better suited to address that issue in the first instance.                                   See

Goldfarb v. Mayor of Balt., __ F.3d __, __ (4th Cir. 2015) (“The

      6We also decline to affirm the summary judgment awards on
an alternative ground because of two aspects of the district
court’s rulings on the Daubert motions. First, the scope of the
court’s rulings is unclear because it failed to address
Schloss’s defect opinion.      Nevertheless, the court broadly
purported to exclude the entirety of the expert opinions.
Second, and perhaps more important, the court determined that
the origin opinions were unreliable in part because both
McGinley and Schloss relied on Hodges’s evidence.   In light of
our   conclusion   that   Hodges’s   evidence  was   erroneously
discredited and not viewed in the light most favorable to the
plaintiffs, the court’s exclusion of the origin opinions may
well warrant a full reassessment.



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district court is in a better position to consider the parties’

arguments   in   the   first   instance,   which   can   be   presented   at

length rather than being discussed in appellate briefs centered

on the issues the district court did decide.”).



                                   IV.

     Pursuant to the foregoing, we vacate the summary judgment

awards and remand for such other and further proceedings as may

be appropriate.

                                                    VACATED AND REMANDED




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