                                                                  [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ____________________________        FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                    No. 08-10413           FEBRUARY 2, 2009
                             ____________________________ THOMAS K. KAHN
                                                                CLERK
                         D.C. Docket No. 06-00068-CV-WCO-2

PETER GRAFF, as Administrator of the Estate of Michael K. Maldonado,
JESSICA MALDONADO,

                                                                  Plaintiffs-Appellants,

                                            versus


BAJA MARINE CORPORATION, MERCURY MARINE, a Division of
Brunswick Corporation, BRUNSWICK CORPORATION,

                                                                  Defendants-Appellees.
                                _______________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                               _______________________

                                      (February 2, 2009)

Before BIRCH and PRYOR, Circuit Judges, and STROM,* District Judge.

STROM, District Judge:
___________________

      * Honorable Lyle E. Strom, Senior United States District Judge for the District of
Nebraska, sitting by designation.
        This case arises out of a boating accident that occurred on Lake Lanier on

May 16, 2004, and killed the operator of the boat, Michael Maldonado. Plaintiffs

filed a strict products liability action under Georgia law against Baja Marine

Corporation (“Baja”), the manufacturer of the boat, and Brunswick Corporation

(“Brunswick”), the manufacturer of the boat’s gimbal housing,1 for an alleged

manufacturing defect in the boat’s gimbal housing.2 The district court granted

Baja and Brunswick (collectively, “manufacturers”) summary judgment on the

ground that plaintiffs failed to offer sufficient evidence of a manufacturing defect

to establish a genuine dispute for trial.

        Plaintiffs appeal the district court’s grant of summary judgment, the district

court’s exclusion of expert testimony, and the district court’s imposition of

sanctions. We AFFIRM.

I. BACKGROUND

        On May 16, 2004, at approximately 2:30 p.m., Maldonado drove his boat, a

25 foot Baja Outlaw, to a location on Lake Lanier called Cocktail Cove. Between

6:00 p.m. and 6:30 p.m., Maldonado and a friend, Brian Ruggerio, left Cocktail



        1
            Brunswick manufactures the gimbal housing through its Mercury Marine division.
        2
         Initially, plaintiffs asserted several theories of strict liability, but the only claim on
appeal regards a manufacturing defect in the gimbal housing.

                                                   -2-
Cove in their own boats to travel to Ruggerio’s lake front home. For a period of

time, the two men traveled side by side in their boats at an estimated speed of 50-

60 miles per hour. Eventually, Ruggerio pulled away and last observed

Maldonado about 1,000 yards behind him.

      After Ruggerio sped away, the accident occurred, but no eye witnesses

observed the accident. Maldonado’s boat was first identified by a passerby at

approximately 7:30 p.m. Maldonado was not in the boat at the time it was

discovered, and his body was never found.

      The parties offer two competing theories as to how the accident occurred.

Plaintiffs contend the boat’s gimbal housing fractured under normal operating

conditions due to a manufacturing defect, the boat spun out of control, and

Maldonado was ejected from the boat. In contrast, the manufacturers claim the

gimbal housing was properly manufactured and fractured due to an impact with

the water. The manufacturers contend Maldonado’s boat hit a wake, the boat went

airborne, the gimbal housing fractured when the boat hit the water upon reentry,

and Maldonado was ejected.

      The district court granted summary judgment in favor of the manufacturers,

finding no genuine dispute existed as to whether the gimbal housing contained a

manufacturing defect. Plaintiffs appealed the grant of summary judgment.

                                        -3-
Plaintiffs also appeal the district court’s exclusion of expert testimony and

imposition of sanctions for spoliation.

                          II. STANDARD OF REVIEW

      The Court reviews the exclusion of expert testimony and spoliation

sanctions for abuse of discretion. United States v. Brown, 415 F.3d 1257, 1264-65

(11th Cir. 2005); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943 (11th Cir.

2005). “An abuse of discretion can occur where the district court applies the

wrong law, follows the wrong procedure, bases its decision on clearly erroneous

facts, or commits a clear error in judgment.” Brown, 415 F.3d at 1266.

      The Court reviews the district court’s grant of summary judgment de novo.

Acevedo v. First Union Nat’l Bank, 357 F.3d 1244, 1246-47 (11th Cir. 2004).

Summary judgment is proper when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

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

R. Civ. P. 56(c). The evidence and all reasonable inferences must be viewed in the

light most favorable to the non-moving party. Acevedo, 357 F.3d at 1247. When

a motion for summary judgment is properly made and supported, the nonmoving

party may not rest on the mere denials or allegations in the pleadings, but must set




                                          -4-
forth specific facts sufficient to raise a genuine issue for trial. Fed. R. Civ. P.

56(e)(2).

                                      III. DISCUSSION

A. Exclusion of the Tensile Test Results for Spoliation

       “Spoliation is the destruction or significant alteration of evidence, or the

failure to preserve property for another's use as evidence in pending or reasonably

foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779

(2d Cir. 1999). Under Georgia law, “spoliation of critical evidence may warrant

the imposition of sanctions such as exclusion of certain evidence or outright

dismissal of the case.” Flury, 427 F.3d at 945.

       In this case, the district court determined plaintiffs unquestionably spoliated

evidence and sanctions were warranted. Accordingly, the district court excluded

the results of tensile tests3 conducted by an individual acting at the direction of

Brian Rampolla, plaintiffs’ metallurgist.

       The district court did not abuse its discretion when it imposed sanctions for

spoliation. There is no dispute plaintiffs destroyed evidence when litigation was

reasonably foreseeable. A team hired by plaintiffs’ attorneys removed the gimbal



       3
         “The purpose of the tensile test is to measure specific mechanical properties of yield
strength, tensile strength, and elongation.” R-167, p. 7.

                                                -5-
housing from Maldonado’s boat without notifying the manufacturers, and an

individual acting at Rampolla’s direction conducted destructive tensile tests on a

portion of the gimbal housing without notifying the manufacturers.

Notwithstanding, plaintiffs claim the district court abused its discretion in

imposing sanctions.

      We disagree. To determine whether spoliation sanctions are warranted, a

court must consider the factors identified in Flury v. Daimler Chrysler Corp., 427

F.3d 939. Griffin v. GMAC Commercial Fin., L.L.C., No.

1:05-CV-199-WBH-GGB, 2007 WL 521907, at *3 (N.D. Ga. Feb. 15, 2007). The

district court properly considered these factors and did not make a clear error in

judgment when it concluded that exclusion of the tensile test results was an

adequate sanction for plaintiffs’ conduct.

      The manufacturers suffered significant prejudice due to plaintiffs’ conduct

because the gimbal housing was the critical piece of evidence in this case, and the

specimens tested by plaintiffs were smaller than the size mandated by the

American Society of Testing Materials (“ASTM”) standards for testing. As

appropriately stated by the District Court, “The prejudice [was] really two-fold.

First, defendants were denied the same testing opportunities as plaintiffs. Second,

by wasting what little material there was by testing specimens that did not satisfy

                                         -6-
ASTM’s size requirements, Rampolla effectively prevented everyone -- plaintiffs,

defendants, and the court -- from receiving more reliable test results.” R-215, pp.

5-6. Even if the plaintiffs did not act with malice when they spoliated evidence,

the plaintiffs were the more culpable party and caused the manufacturers

substantial prejudice. See Flury, 427 F.3d at 946.

      Plaintiffs contend that any prejudice suffered by the manufacturers was

really self-imposed. While plaintiffs admit to destructively testing a portion of the

gimbal housing, plaintiffs claim the manufacturers had the ability and opportunity

to conduct tests on a different portion of the gimbal housing that remained

untouched. The record indicates that the untested portion of the gimbal housing

was not an optimum specimen for testing, and the district court could have

properly determined that its existence did not cure the prejudice plaintiffs caused.

Accordingly, the district court’s decision to exclude the tensile test results is

affirmed.

B. Exclusion of Rampolla’s Testimony

      The admissibility of expert testimony is governed by Rule 702 of the

Federal Rules of Evidence, which 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

                                          -7-
                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.

Accordingly, expert testimony is admissible when three requirements are satisfied:

                (1) the expert is qualified to testify competently
                regarding the matters he intends to address; (2) the
                methodology by which the expert reaches his
                conclusions is sufficiently reliable as determined by the
                sort of inquiry mandated in Daubert;4 and (3) the
                testimony assists the trier of fact, through the application
                of scientific, technical, or specialized expertise, to
                understand the evidence or to determine a fact in issue.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004).

The proponent of the expert testimony bears the burden of proving its

admissibility. Id.

      To support an essential element of their products liability action, plaintiffs

offered testimony of their expert metallurgist, Brian Rampolla. Rampolla’s

testimony sought to establish that the gimbal housing on Maldonado’s boat

contained a manufacturing defect because it was less ductile5 than a properly



      4
          Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
      5
          Ductility “is the ability of material to deform without fracturing.” R-234, p. 123.

                                                 -8-
manufactured gimbal housing. Specifically, Rampolla opined the subject gimbal

housing failed to comport with the ductility requirements contained in the

manufacturer’s specification, Mercury Marine material specification M-360-M.6

Rampolla conducted visual and microscopic analyses of the gimbal housing and

discovered an absence of ductile dimples at the fracture surface and a high

concentration of beta phase. According to Rampolla, the lack of ductile dimples

indicated the gimbal housing deviated from specifications contained in M-360-M

because he would expect a properly manufactured gimbal housing to deform

before fracturing and leave evidence of ductile dimples at the fracture surface. In

addition, Rampolla concluded the amount of beta phase in the gimbal housing

proved the product was defective because high concentrations of beta phase

adversely affect ductility.

       The manufacturers moved in limine to exclude Rampolla’s testimony, and

the district court held a Daubert hearing to determine the admissibility of the

testimony. The district court determined Rampolla was not qualified to




       6
         M-360-M does not specifically reference ductility. Rather, the specification prescribes
the yield and tensile strengths for the gimbal housing. According to Rampolla, a gimbal housing
that is manufactured in accordance with M-360-M “should be expected to behave in a ductile
manner if subject to an overload condition.” R-167, p. 9.

                                              -9-
competently testify about the effects of beta phase, and the testimony lacked a

sufficiently reliable foundation. Rampolla’s testimony was excluded accordingly.

      The district court acted within its discretion when it determined Rampolla

was incompetent to testify about the effects of beta phase. “There is no bright-line

rule for determining whether a given witness is qualified to offer expert testimony.

Rather, the decision is inherently case-specific.” Allmond v. Akal Sec., Inc., No.

4:05-cv-96, 2007 WL 988757, at *2 (M.D. Ga. March 29, 2007).

      In this case, Rampolla determined that the “root cause” of the gimbal

housing’s defect was the presence of large numbers of beta phase platelets. Yet,

Rampolla did not reach this conclusion until after an aluminum expert correctly

identified the beta phase platelets and directed Rampolla to relevant literature.

Initially, Rampolla identified the beta phase platelets as “cold flakes” and opined

in his initial draft report that the presence of cold flakes caused the gimbal

housing’s defect. However, Rampolla had very limited experience working with

aluminum parts such as the gimbal housing, and as a result, he forwarded pictures

of the gimbal housing to an aluminum expert, JC Lind, to confirm the accuracy of

Rampolla’s cold flake theory. Lind informed Rampolla that the structures

Rampolla identified as cold flakes were actually “typical beta phase.” R-234, p.

198. Rampolla questioned whether he had “gone down the wrong path” and asked

                                         -10-
Lind whether beta phase would have an adverse effect on ductility and requested

Lind point Rampolla to literature on the topic. Id. at 199.

       A little over one month later, Rampolla disclosed his final amended report.

The amended report contained Rampolla’s current opinion that the presence of

beta phase caused the defect. Rampolla testified that he essentially deleted the

words “cold flakes” in the initial draft report and replaced the words with “beta

phase platelets.”

      Based on the foregoing, Rampolla was not an expert, let alone cognizant of

the effects of beta phase, until an aluminum expert pointed Rampolla in the right

direction. Further, the fact that Rampolla learned about beta phase a little over

one month before he disclosed his report indicates he lacked competence on the

subject. Plaintiffs contend Rampolla’s failure to properly identify the beta phase

platelets is not significant because beta phase, like cold flakes, are a type of

intermetallic inclusion that can have an adverse effect on ductility. Plaintiffs

claim Rampolla properly identified the structures as intermetallic inclusions, albeit

by a different name, and correctly determined the impact of the structures on the

gimbal housing’s ductility. Despite plaintiffs’ attempts to establish Rampolla’s

competence on the subject, Rampolla admitted that he did not have any experience

working with beta phase prior to this case, he did not know the impact of beta

                                         -11-
phase on ductility until one month before disclosing his report, and that cold flakes

and beta phase are different structures that are easily distinguishable. We cannot

say the district court abused its discretion in finding Rampolla incompetent to

testify about the effects of beta phase.7

       Further, the district court did not abuse its discretion when it excluded

Rampolla’s testimony on the ground that it was unreliable. Expert testimony

“must be supported by appropriate validation,” and the district court must

ensure the testimony rests on a reliable foundation. Frazier, 387 F.3d at 1261

(quoting Daubert, 509 U.S. at 590, 597). “[T]he trial judge must have

considerable leeway in deciding in a particular case how to go about determining

whether particular expert testimony is reliable.” Frazier, 387 F.3d at 1262

(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

       In this case, there were two bases for Rampolla’s opinion that the gimbal

housing lacked sufficient ductility: (1) the gimbal housing contained a large

concentration of beta phase, and (2) the fracture surface did not exhibit evidence




       7
         Plaintiffs claim that even if Rampolla was incompetent to testify about the effects of
beta phase, the district court should have only excluded testimony related to beta phase. We need
not reach this issue because the district court did not abuse its discretion when it excluded
Rampolla’s testimony on the independent ground that it was unreliable.

                                              -12-
of ductile dimples.8 Rampolla did not identify a reliable basis for either theory.

All aluminum parts like the subject gimbal housing contain some level of beta

phase, and therefore, a metallurgist would expect to find beta phase in the product.

Rampolla’s beta phase theory relies on his claim that the subject gimbal housing

contained too much beta phase; however, Rampolla could not reliably identify

how much beta phase is “too much.” Nor did Rampolla compare the subject

gimbal housing with a properly manufactured gimbal housing to demonstrate how

the levels of beta phase differed. Similarly, Rampolla did not compare the subject

gimbal housing with a properly manufactured gimbal housing to demonstrate how

the presence of ductile dimples differed.9 The district court’s decision to exclude

Rampolla’s testimony is affirmed.

C. District Court’s Grant of Summary Judgment in Favor of the
Manufacturers

       Under Georgia law, a plaintiff must prove two elements to prevail on a

products liability claim: (1) the manufacturer’s product was “not merchantable

and reasonably suited to the use intended” when sold, and (2) the product’s


       8
         Rampolla’s opinions were also based on the results of tensile bar tests; however, as
previously discussed, these tests were properly excluded.
       9
         Rampolla did compare the gimbal housing on Maldonado’s boat to the gimbal ring on
Maldonado’s boat. The district court properly found that this comparison was not relevant
because the gimbal ring contained different mechanical properties than the gimbal housing.

                                              -13-
condition when sold was the proximate cause of the injury sustained. See Ga.

Code Ann. § 51-1-11(b); Owens v. Gen. Motors Corp., 272 Ga. App. 842, 845-

846, 613 S.E.2d 651, 654 (Ga. Ct. App. 2005). A plaintiff can establish the first

element by proving the product contained a manufacturing defect. Jones v.

Amazing Prods., Inc., 231 F. Supp. 2d 1228, 1236 (N.D. Ga. 2002). A

manufacturing defect is “a deviation from some objective standard or a departure

from the manufacturer's specifications established for the creation of the product.”

Id.

       In this case, the district court granted summary judgment against plaintiffs

because plaintiffs failed to offer sufficient evidence of a manufacturing defect to

establish a genuine issue for trial. Plaintiffs assert two main arguments on appeal:

(1) testimony of plaintiffs’ accident reconstructionists is sufficient to establish a

genuine dispute as to whether the gimbal housing contained a manufacturing

defect, and (2) plaintiffs can rely on circumstantial evidence to overcome summary

judgment.10 Both claims are without merit.

       10
           Plaintiffs also appear to argue that the manufacturers’ evidence establishes a genuine
dispute regarding the existence of a manufacturing defect. Plaintiffs argue the manufacturers’
expert invented the wake theory, and this fact is evidence of a manufacturing defect. We
understand this argument as relevant to the probative value of any circumstantial evidence, and
the argument is considered accordingly. Also, plaintiffs claim the fact that the manufacturers’
metallurgical experts agree with Rampolla on several issues is probative. This fact does not help
plaintiffs overcome summary judgment because the experts disagree on the critical point of
whether the gimbal housing was defective.

                                              -14-
      First, the testimony of plaintiffs’ accident reconstructionists is insufficient

to overcome summary judgment. Plaintiffs rely mainly on the testimony of Kevin

Breen who determined that the “out-drive, mount, and gimbal ring experienced a

sudden materials failure” during normal operation. R-173, Exh. 9, pp. 4-5.

Plaintiffs rely heavily on the fact that Breen conducted a failure mode and effect

analysis in which he eliminated what he determined to be all possible causes of the

accident except for a sudden failure of the out-drive. Breen did not determine the

cause of the sudden failure or allege that the gimbal housing was defectively

manufactured. Indeed, Breen testified that he did not conduct a failure analysis to

determine why a particular part broke; instead, he conducted a failure analysis

only so far as it related to the sequence of accident events. While Georgia law

does not require a plaintiff to identify the specific defect,11 Breen’s testimony does

not sufficiently establish that the gimbal housing on Maldonado’s boat deviated

from a properly manufactured gimbal housing.

      In actuality, plaintiffs’ case relies solely on circumstantial evidence.

Essentially, plaintiffs claim the gimbal housing would not have “suddenly failed”

unless it contained a manufacturing defect. Georgia law permits the use of

circumstantial evidence to infer a manufacturing defect in some circumstances.

      11
           Owens, 272 Ga. App. at 845-846, 613 S.E.2d at 654.

                                             -15-
Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 842, 244 S.E.2d 905, 909

(Ga. Ct. App. 1978). Reliance on circumstantial evidence is particularly

appropriate where the product is destroyed or otherwise unavailable for testing.

Rose v. Figgie Int’l, Inc., 229 Ga. App. 848, 851, 495 S.E.2d 77, 81 (Ga. Ct. App.

1997).

      While Georgia courts have not clearly identified when a plaintiff may rely

on circumstantial evidence to establish a manufacturing defect, we recognize that

this case differs in important respects from the typical case in which circumstantial

evidence is used to prove a defect. Foremost, the plaintiffs in this case had ample

opportunity to examine and test the gimbal housing from Maldonado’s boat to

establish direct evidence of a defect. Second, the existence of a manufacturing

defect is not the only plausible explanation for how the gimbal housing broke. At

the very least, the manufacturers’ theory that the gimbal housing broke when it

impacted the water is a plausible explanation for the broken product.

      Plaintiffs zealously argue that the expert testimony establishes the gimbal

housing could not have broken under any circumstances except for a

manufacturing defect, and therefore, plaintiffs claim their reliance on

circumstantial evidence is appropriate. On the facts of this case, we fail to see

how plaintiffs’ expert, let alone any accident reconstructionist, could competently

                                        -16-
conclude that there is only one plausible explanation for this unwitnessed accident.

No one witnessed the manner in which the boat was being operated immediately

prior to the accident. No one witnessed the conditions that existed immediately

before the accident, and no one witnessed the accident itself. It would simply be

speculation to conclude that plaintiffs’ theory is the only plausible explanation for

the accident.

      Even if we were to assume that the plaintiffs could rely on circumstantial

evidence in this case, the inference of a manufacturing defect is not probative in

light of the conflicting expert testimony. See Stevenson v. Winn-Dixie Atlanta,

Inc., 211 Ga. App. 572, 574, 440 S.E.2d 465, 467 (Ga. Ct. App. 1993)(stating

“Circumstantial evidence is not probative against positive and uncontradicted

evidence to the contrary.”) Specifically, the manufacturers’ expert metallurgist

concluded the gimbal housing was not defective and complied with the

manufacturer’s specifications for ductility.

      Accordingly, plaintiffs failed to offer sufficient evidence of a manufacturing

defect to permit the district court to submit this case to a jury. The district court’s

grant of summary judgment in favor of the manufacturers is affirmed.

                                 IV. CONCLUSION




                                         -17-
         Based on the foregoing, the district court is affirmed as to all assignments of

error.




                                           -18-
