                               UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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. at

141—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
