                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1040


BARRY ZUCKERMAN; ARLENE ZUCKERMAN,

                 Plaintiffs - Appellants,

           v.

WAL-MART   STORES   EAST,      L.P.;     WAL-MART   STORES,     INC.;
LOUISVILLE LADDER, INC,

                 Defendants - Appellees,

           and

DAVIDSON   MANUFACTURING   CORP   LLC;   DAVIDSON   LADDERS    NEVADA
INC,

                 Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:12-cv-02463-SB)


Submitted:   June 22, 2015                      Decided:      July 6, 2015


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kathleen C. Barnes, BARNES LAW FIRM, LLC, Hampton, South
Carolina, for Appellants. Mark S. Barrow, J. Eric Cavanaugh,
William R. Calhoun, Jr., SWEENY, WINGATE       &   BARROW,   P.A.,
Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       This     products      liability         action     arises        from   Barry

Zuckerman’s     fall   from    a   ladder.        Barry    and    Arlene   Zuckerman

appeal    the    district     court’s     orders     excluding        their     expert

witness, Dr. Kelkar; denying reconsideration of that order; and

granting summary judgment to Wal-Mart Stores East, L.P., Wal-

Mart   Stores,    Inc.,     and    Louisville     Ladder,      Inc.       Finding   no

error, we affirm.

       We review a district court’s order excluding or admitting

evidence for an abuse of discretion.               Belk, Inc. v. Meyer Corp.,

U.S., 679 F.3d 146, 161 (4th Cir. 2012).                         The admission of

expert    testimony    is     governed     by    Fed.     R.     Evid.   702,   which

provides:

       A witness who is qualified as an expert by knowledge,
       skill, experience, training, or education may testify
       in the form of an opinion or otherwise if: (a) the
       expert’s scientific, technical, or other specialized
       knowledge will help the trier of fact to understand
       the evidence or to determine a fact in issue; (b) the
       testimony is based on sufficient facts or data; (c)
       the testimony is the product of reliable principles
       and methods; and (d) the expert has reliably applied
       the principles and methods to the facts of the case.

Expert   testimony     rooted      in   “subjective       belief    or    unsupported

speculation” does not suffice.                Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 590 (1993).                We conclude that the district

court did not abuse its discretion in excluding Dr. Kelkar’s

testimony, as he failed to provide sufficient facts or data upon


                                          3
which the district court could conclude that his opinion was

based on reliable principles and methods.                    Nor did the court

abuse its discretion in denying the motion to reconsider this

ruling.

     Next, we review de novo a district court’s order granting

summary judgment.          Jacobs v. N.C. Admin. Office of the Courts,

780 F.3d 562, 565 n.1 (4th Cir. 2015).              “A district court ‘shall

grant summary judgment if the movant shows that there is no

genuine   dispute     as    to   any   material    fact    and    the    movant   is

entitled to judgment as a matter of law.’”                 Id. at 568 (quoting

Fed. R. Civ. P. 56(a)).          In determining whether a genuine issue

of material fact exists, we “view the facts and all justifiable

inferences arising therefrom in the light most favorable to . .

. the nonmoving party.”            Id. at 565 n.1 (internal quotation

marks     omitted).          However,        “[c]onclusory       or     speculative

allegations    do     not    suffice,    nor    does   a   mere       scintilla   of

evidence in support of [the nonmoving party’s] case.”                     Thompson

v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)

(internal quotation marks omitted).

     Because the Zuckermans’ injuries occurred in South Carolina

and removal to the district court was based on diversity of

citizenship, this court applies South Carolina substantive law.

Oglesby v. Gen. Motors Corp., 190 F.3d 244, 251 (4th Cir. 1999).



                                         4
To establish a products liability claim under South Carolina

law, a plaintiff must show:

       (1) that he was injured by the product; (2) that the
       product, at the time of the accident, was in
       essentially the same condition as when it left the
       hands of the defendant; and (3) that the injury
       occurred because the product was in a defective
       condition unreasonably dangerous to the user.

Sauls v. Wyeth Pharm., Inc., 846 F. Supp. 2d 499, 502 (D.S.C.

2012).    While a plaintiff may prove a products liability claim

through circumstantial evidence, “one cannot draw an inference

of a defect from the mere fact a product failed.”                   Graves v. CAS

Med.   Sys.,   Inc.,    735   S.E.2d    650,    658      (S.C.   2012).      Without

expert testimony to show the cause of the ladder’s failure, all

that is left is the unsupported inference that the ladder failed

because   it   was    defective.       This    is   insufficient      under   South

Carolina law.        Accordingly, we affirm the district court’s order

granting summary judgment.

       We dispense with oral argument because the facts and legal

contentions    are     adequately   presented       in    the    materials    before

this court and argument would not aid the decisional process.



                                                                          AFFIRMED




                                        5
