                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-2111



MARGARET SHAVER HORTON,

                                              Plaintiff - Appellant,

          versus


SYNTHES (U.S.A.),

                                               Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.   Jackson L. Kiser, Senior
District Judge. (CA-03-419-7)


Submitted:   April 29, 2005                   Decided:   May 25, 2005


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard L. McGarry, THE LAW OFFICE OF RICHARD MCGARRY, Roanoke,
Virginia, for Appellant.     Lori J. Bentley, JOHNSON, AYERS &
MATTHEWS, Roanoke, Virginia; W. Kennedy Simpson, THOMPSON MILLER &
SIMPSON PLC, Louisville, Kentucky, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In this diversity action, 28 U.S.C. § 1332(a) (2000),

Margaret Shaver Horton appeals the district court’s grant of

judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(a), to

Synthes (U.S.A) (“Synthes”), a manufacturer of medical devices.                     A

plate and five screws manufactured by Synthes were placed in

Horton’s    right    leg     to    repair   a   break    that   resulted    from   an

automobile accident in March 2000.               Horton’s leg failed to heal,

and two of the screws broke over an eighteen month period, until

the system was surgically removed and a different type of hardware

was inserted.       Horton filed suit alleging breach of warranty as to

the screws.       At the close of Horton’s evidence before a jury, the

district court granted Synthes’ motion for judgment as a matter of

law.   On appeal, Horton alleges that she was entitled to an adverse

inference of defectiveness in light of the failure of one of

Synthes’ employees to appear to testify.                 She further asserts that

her case should have withstood the Rule 50(a) motion.

            A district court has inherent power to impose a sanction,

including    an     adverse       inference,    for     spoliation   of    evidence.

Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004).

Federal law governs the decision to impose such a sanction in

diversity cases.       Id.    “The spoliation of evidence rule allows the

drawing of an adverse inference against a party whose intentional

conduct causes not just the destruction of evidence . . . but also


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against one who fails to preserve or produce evidence—including the

testimony of witnesses.”           Id.     We conclude that Horton did not

preserve this issue for appellate review, as she never requested an

adverse inference on spoliation grounds in the district court. See

Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“Issues

raised   for   the   first    time    on    appeal    generally   will   not   be

considered.”).

           Horton further argues that the district court erred in

granting judgment as a matter of law.                 We review de novo the

district court’s grant of          a Fed. R. Civ. P. 50(a) motion, viewing

the evidence in the light most favorable to the nonmoving party.

Babcock v. Bellsouth Adver. & Publ’g Corp., 348 F.3d 73, 76 (4th

Cir. 2003).     In a diversity action, the law of the site of the

injury, in this case Virginia, applies. Alevromagiros v. Hechinger

Co., 993 F.2d 417, 420 (4th Cir. 1993).

           In Virginia, a product must be fit for the ordinary

purposes for which it is intended to be used.            Slone v. Gen. Motors

Corp., 457 S.E.2d 51, 54 (Va. 1995).             A plaintiff must establish

“(1) that the goods were unreasonably dangerous either for the use

to which they would ordinarily be put or for some other reasonably

foreseeable    purpose,      and   (2)   that   the   unreasonably   dangerous

condition existed when the goods left the defendant’s hands.”

Logan v. Montgomery Ward & Co., 219 S.E.2d 685, 687 (Va. 1975).

Reviewing the evidence Horton presented, we conclude that she


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failed   to    show   that   the   screws    manufactured       by    Synthes     were

unreasonably dangerous for their intended use.                  The metallurgist

who testified for Horton stated that he found no manufacturing

defect, and admitted that he was not qualified to comment on the

design of the device.        The orthopedist called by Horton testified

that he had often used the same system with good results.                          He

admitted      on   cross-examination        that   a   broken        screw   is    not

necessarily defective in design or manufacture, and that, if a bone

does not heal, over time any piece of metal can break.                             We

conclude, even giving Horton the benefit of all inferences, that

she failed to establish her cause of action.              Therefore, judgment

as a matter of law was properly granted.

              Accordingly, we affirm the district court’s disposition

in this case.      We deny Horton’s motion to allow attachments to the

reply brief as well as her motion for oral argument.                    We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                             AFFIRMED




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