PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE MARYLAND CASUALTY COMPANY,
as Subrogee of Eileen K. Gitelson;
EILEEN K. GITELSON; SELMA
INVESTMENT CORPORATION,
Plaintiffs-Appellees,

v.
                                                                           No. 96-1192
THERM-O-DISC, INCORPORATED,
Defendant-Appellant,

and

WHIRLPOOL CORPORATION; EMERSON
ELECTRIC COMPANY,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-93-1132-JFM)

Argued: May 8, 1997

Decided: February 27, 1998

Before WILKINSON, Chief Judge, and RUSSELL* and
MICHAEL, Circuit Judges.


_________________________________________________________________

*Judge Russell participated in the decision of this case, but died prior
to the time the opinion was issued. The opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John M. Kobayashi, KOBAYASHI & ASSOCIATES,
P.C., Denver, Colorado, for Appellant. Mark E. Opalisky, COZEN &
O'CONNOR, Philadelphia, Pennsylvania, for Appellees.

_________________________________________________________________

OPINION

PER CURIAM:1

This appeal requires us to consider the sufficiency of an evidentiary
determination made by the district court. Specifically, we are called
upon to decide whether the district court properly carried out its func-
tion as evidentiary "gatekeeper" pursuant to the Supreme Court's
mandate in Daubert v. Merrell Dow Pharmaceuticals, Inc..2 Because
we find that the district court made its decision to admit certain expert
testimony in accordance with the demands of Daubert and its prog-
eny, we affirm its ruling.

Facts and Procedural Background

The underlying facts of this case are straightforward. On the eve-
ning of December 30, 1991, fire broke out in Eileen Gitelson's home
in Potomac, Maryland. Mrs. Gitelson's insurance carrier, Maryland
Casualty Company ("Maryland Casualty"), paid Mrs. Gitelson for her
loss, and was subrogated to any claims she had regarding the fire.
Maryland Casualty then sued Appellant Therm-O-Disc, Inc. ("Therm-
O-Disc") to recover for the damage, alleging that a defective thermo-
stat, manufactured by Therm-O-Disc and contained in Mrs. Gitelson's
Whirlpool drier, caused the fire.
_________________________________________________________________
1 This opinion was drafted by Judge Donald S. Russell. Judge Russell
died while the case was under submission. The remaining panel members
continue to concur in the opinion prepared by Judge Russell.
2 509 U.S. 579 (1993).

                     2
At trial, Maryland Casualty sought to introduce the testimony of
James Rodems ("Rodems"), an electrical engineer specializing in
thermostats and other electrical switches. Rodems was expected to
testify that, in his opinion, the fire that began in Mrs. Gitelson's drier
was indeed caused by a malfunction in the Therm-O Disc thermostat.
Therm-O-Disc objected to this proferred testimony, and moved in
limine to exclude it. As a result of this objection, the district court
held a "Daubert-type hearing"3 to determine whether Rodems's testi-
mony was admissible.

This Daubert hearing lasted several hours, and resulted in the dis-
trict court's admission of Rodems's testimony. At the close of all evi-
dence in the case, Therm-O-Disc made a motion for judgement as a
matter of law pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure, arguing that: (A) Rodems's testimony was based on con-
jecture and speculation and was therefore not properly admitted, and
(B) Maryland Casualty had failed to show a causal link between the
allegedly defective thermostat and the fire. The district court denied
this motion.

The jury returned a verdict in favor of Maryland Casualty, and
assessed damages in the amount of $635,893 against Therm-O-Disc.
Therm-O-Disc renewed its motion for judgement as a matter of law,
which the district court also denied. This appeal followed.

Discussion

I.

Therm-O-Disc's primary argument in this appeal is that the district
court failed to apply the test for the admission of expert scientific tes-
timony demanded by Daubert. Within this broad allegation, Therm-
O-Disc makes several specific arguments. We consider each in turn,
and review the district court's decision to admit the testimony for
abuse of discretion.4
_________________________________________________________________
3 J.A. at 2.

4 General Elec. Co. v. Joiner, 118 S. Ct. 512, 517 (1997).

                     3
A.

Therm-O-Disc first argues that the district court erred in placing on
Therm-O-Disc the "burden of proof"5 regarding the relevance and
reliability of Rodems's testimony. Such a shift constitutes error,
Therm-O-Disc contends, because "Daubert requires the party proffer-
ing the expert testimony to meet its Rule 104(a)[of the Federal Rules
of Evidence] burden by a preponderance of evidence."6 Daubert,
however, makes no mention of a burden of "proof" regarding the
decision to admit expert scientific testimony. We assume Therm-O-
Disc misuses this term to denote Maryland Casualty's burden of
production -- that is, the burden of coming forward with evidence
from which the trial court could determine, as Daubert demands, that
(1) the expert will testify to "scientific knowledge," and (2) the
expert's testimony "will assist the trier of fact to understand or deter-
mine a fact in issue."7

Nevertheless, in treating this as a "burden of proof," Therm-O-Disc
misreads Daubert. All Daubert demands is that the trial judge make
a "preliminary assessment" of whether the proffered testimony is both
reliable (i.e. based on "scientific knowledge") and helpful (i.e. of
assistance to the trier of fact in understanding or determining a fact
in issue).8 As in all questions of admissibility, the proferring party
must come forward with evidence from which the court can determine
that the proffered testimony is properly admissible. However, there is
no requirement in Daubert, or any other controlling authority, that the
proffering party must "prove" anything to the court before the testi-
mony in question can be admitted.9
_________________________________________________________________
5 Appellant's Br. at 18.
6 Id. at 20.
7 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993).
8 Id.

9 Daubert cites Rule 104(a) of the Federal Rules of Evidence ("Rule
104(a)"), which states, in part, that "[p]reliminary questions concerning
the qualification of a person to be a witness, the existence of a privilege,
or the admissibility of evidence shall be determined by the court, subject
to the provisions of subdivision (b)." Fed. R. Evid. 104(a) (West 1997).
"Subdivision (b)" states that "[w]hen the relevancy of evidence depends

                     4
In replacing the stricter "general acceptance" test of Frye v. United
States10 with its requirement that the proferred testimony merely be
reliable and helpful, the Daubert court expressly stated that it did so
in keeping with the "`liberal thrust'"11 of the Federal Rules of Evi-
dence, and emphasized that the inquiry demanded by those rules is "a
flexible one," one which focuses "solely on principles and methodol-
ogy, not on the conclusions that they generate." 12 Thus, in addition to
prescribing fluid and general standards for the admission of scientific
testimony, Daubert also described the trial court's role as that of a
"gatekeeper" who should exercise broad discretion in admitting scien-
tific testimony that could later be tested by "[v]igorous cross-
examination, presentation of contrary evidence, and careful instruc-
tion on the burden of proof . . . ."13 As the Third Circuit has stated,
plaintiffs do not "have to prove their case twice-- they do not have
to demonstrate to the judge by a preponderance of the evidence that
the assessments of their experts are correct, they only have to demon-
strate by a preponderance of evidence that their opinions are reliable."14
_________________________________________________________________
upon the fulfillment of a condition of fact, the court shall admit it upon,
or subject to, the introduction of evidence sufficient to support a finding
of the fulfillment of the condition." Fed. R. Evid. 104(b) (West 1997)
(emphasis added).

Daubert references Bourjaily v. United States, 483 U.S. 171 (1987),
for the proposition that "[t]hese matters should be established by a pre-
ponderance of proof." Daubert, 509 U.S. at 592 n.10. We do not, how-
ever, interpret "a preponderance of proof" to refer to a burden of proof,
particularly as the Court in Bourjaily made the distinction between these
two concepts, declaring that "the evidentiary standard is unrelated to the
burden of proof on the substantive issues," and that "[t]he preponderance
standard ensures that before admitting evidence, the court will have
found it more likely than not that the technical issues and policy concerns
addressed by the Federal Rules of Evidence have been afforded due
consideration." Bourjaily, 483 U.S. at 175 (emphasis added).
10 293 F. 1013, 1014 (1923).
11 Daubert, 509 U.S. at 588 (citing Beech Aircraft Corp. v. Rainey, 488
U.S. 153, 169 (1988)).
12 Id. at 594-95.
13 Id. at 596.
14 In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)
(emphasis in original).

                    5
Neither party disputes that, at the beginning of the Daubert hear-
ing, the district court told Jim Rothschild, counsel for Therm-O-Disc,
"[y]ou have the burden of proof" with regard to Rodems's testimony.15
However, counsel immediately corrected the district court on this
point,16 and from then forward it appears that the district court under-
stood both the demands of Daubert and its own role as "gatekeeper,"17
and conducted the hearing accordingly. Immediately after the objec-
tion, the district court withdrew its call for Mr. Rothschild to come
forward and show that Rodems's testimony was not admissible, and
called Rodems himself to the stand to explain the basis for that testi-
mony. This Rodems did under both direct and cross-examination.
After several hours of testimony, the district court determined that,
although it had some reservations about the proffered basis for
Rodems's opinion, "the defendant has failed to establish . . . [that] Mr.
Rodems relied upon a scientific principle that was not valid."18

Therefore, we are satisfied that an examination of the record shows
that no improper burden-shifting took place. Clearly, the court called
upon Maryland Casualty to meet its burden of production by coming
forward with evidence to support its contention that Rodems's testi-
mony would be both reliable and helpful. When this was presented,
Therm-O-Disc was given the opportunity to rebut, but was unsuccess-
ful in persuading the court that Rodems's testimony was not as reli-
able or helpful as Maryland Casualty claimed.

From a review of the record, we conclude that the general process
contemplated by Daubert took place in the hearing, and that Mary-
land Casualty squarely bore the burden of production. Therefore, we
decline to reverse the district court's decision on this ground.

B.

Therm-O-Disc also claims that the district court failed, in contra-
vention of Daubert, to take into consideration certain factors in mak-
_________________________________________________________________
15 J.A. at 4.
16 Id.
17 See, e.g., id. at 100; 102.
18 Id. at 184.

                    6
ing its decision to admit Rodems's testimony. Specifically, Therm-O-
Disc argues that there is no evidence in the record that the district
court considered any of the "four non-exclusive`general observa-
tions' that are to be evaluated by the trial judge"19 pursuant to a
Daubert inquiry.20 But here again, we find that Therm-O-Disc has
misread Daubert, and decline to disturb the district court's decision
on this ground.

In Daubert, the Court established two factors that "the trial judge
must determine"21 before scientific expert testimony can be admitted.
Those factors are, as stated above, (1) whether the testimony is based
on "scientific knowledge" (i.e. knowledge grounded "in the methods
and procedures of science"),22 and (2) whether the testimony will be
helpful to the trier of fact. The Daubert court described this mandated
inquiry as "a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the
facts in issue."23

However, beyond this inquiry, the Daubert court expressly
declined to require consideration of any other specific factors, stating
that "[m]any factors will bear on the inquiry, and we do not presume
to set out a definitive checklist or test."24 The Daubert court did make
what it termed "general observations"25 regarding what a judge should
keep in mind in determining the admissibility of expert scientific tes-
timony, but it is clear that these "observations" do not constitute the
mandatory criteria described by Therm-O-Disc.26
_________________________________________________________________
19 Appellant's Br. at 24 (emphasis added).
20 See Daubert, 509 U.S. at 593-95.
21 Id. at 592.
22 Id. at 590. As stated above, "scientific" is often considered synony-
mous with "reliable." See, e.g. , Kenneth R. Foster & Peter W. Huber,
Judging Science: Scientific Knowledge and the Federal Courts 15 (The
MIT Press 1997).
23 Daubert, 509 U.S. at 592-93.
24 Id. at 593.
25 Id.
26 See Appellant's Br. at 24; see also Daubert, 509 U.S. at 598 (Rehn-
quist, C.J., concurring in part and dissenting in part).

                    7
Daubert clearly contemplates the vesting of significant discretion
in the district court with regard to the decision to admit expert scien-
tific testimony. Beyond establishing the two criteria of reliability and
helpfulness, the Court has left the means by which these criteria are
evaluated to the sound discretion of the district judge. This is apparent
not only from Daubert itself,27 but from subsequent Supreme Court
precedent, holding that abuse of discretion is the proper standard by
which evaluations of proferred evidence should be reviewed.28 In
addition, this circuit has taken the position that the Daubert court
"was not formulating a rigid test or checklist," and was "relying
instead on the ability of federal judges to properly determine
admissibility."29
_________________________________________________________________
27 See Daubert, 509 U.S. at 593 ("We are confident that federal judges
possess the capacity to undertake this review.").
28 Joiner, 118 S. Ct. at 517.
29 Benedi v. McNeil-P.P.C., Inc. , 66 F.3d 1378, 1384 (4th Cir. 1995)
(citations omitted). See also United States v. Bynum, 3 F.3d 769, 773 (4th
Cir. 1993) ("The [Daubert] Court emphasized that it was prescribing a
`flexible' rule, one committed, as are most questions of admissibility of
evidence, to the discretion of the district courts."). Therm-O-Disc relies
on United States v. Powers, 59 F.3d 1460 (4th Cir. 1995), for the propo-
sition that, in this circuit's reading of Daubert, there are four factors "the
Supreme Court directed trial courts to consider when evaluating the sci-
entific validity of proposed evidence:

          (1) Whether the theory or technique used by the expert can be,
          and has been, tested;

          (2) Whether the theory or technique has been subjected to peer
          review and publication;

          (3) The known or potential rate of error of the method used; and

          (4) The degree of the method's or conclusion's acceptance
          within the relevant scientific community."

Powers, 59 F.3d at 1471 (citing United States v. Dorsey, 45 F.3d 809,
813 (4th Cir. 1995)).

While we agree that this language in Powers would appear to make
consideration of the four factors mandatory, we recognize that Dorsey,
which Powers quotes for these factors, expressly states that "trial courts
may consider several factors," and lists them accordingly. Dorsey, 45
F.3d at 813 (emphasis added).

                    8
Thus, we reject Therm-O-Disc's contention that, beyond reliability
and helpfulness, there are further considerations a district court must
make in order to comply with the demands of Daubert. Further, in the
present case, we are satisfied that the district court did not abuse its
discretion in admitting Rodems's testimony.

As Maryland Casualty notes in its brief, Rodems is an electrical
engineer with over twenty-five years experience in analyzing switch
failures. Through his testimony, Rodems established that his opinion
was based on his examination of the conditions inside the disputed
switch and the application of principles of electrical engineering to
those conditions.30 Rodems was able to cite numerous works of tech-
nical literature that he alleged supported his mode of analysis,31 and
testified that his opinion regarding electrical failures has been admit-
ted by at least one other district court.32

Based on this evidence, we hold that the trial court did not abuse
its discretion in admitting Rodems's testimony. Maryland Casualty
came forward with ample evidence from which the district court
could have made its "preliminary assessment" of reliability and help-
fulness, and the district court clearly did not find that Therm-O-Disc's
rebuttal was sufficient to overcome that evidence. As the matter was
within the district court's sound discretion, we find that it committed
no error in deciding to admit the testimony.

II.

We next consider Therm-O-Disc's contention that Maryland Casu-
alty did not prove a causal link between the thermostat and the fire
in the Gitelson home, and thus that Therm-O-Disc was entitled to
judgment as a matter of law. Under Maryland law, which applies in
this diversity case, to recover in strict liability for a manufacturing
defect, a plaintiff must establish, inter alia , a causal relationship
between the claimed defect and the injury.33 There is no question that
_________________________________________________________________
30 J.A. at 10; 16; 23-24; 140.
31 Id. at 16-18.
32 See id. at 294-306.
33 Jensen v. American Motors Corp. , 437 A.2d 242, 247 (Md. App.
1981).

                    9
the offered proof must rise above the level of speculation or conjecture.34
Any facts that establish proof greater than speculation or conjecture,
however, create a question for the jury.35 Furthermore, proximate
cause may be established by circumstantial evidence. 36

In this case, the jury heard Rodems's theory that the thermostat was
defective and caused the fire. Maryland Casualty introduced other
evidence that ruled out any other cause of the fire. Under these cir-
cumstances, it was left to the jury to determine the question of causa-
tion, which it resolved in favor of Maryland Casualty. Examining the
evidence in the light most favorable to Maryland Casualty, we hold
that the jury properly reached its verdict.

III.

Finally, Therm-O-Disc disputes the district court's admission of
Mrs. Gitelson's testimony concerning her damages. It argues that
expert testimony was required to establish the value of Mrs. Gitel-
son's household goods.

Mrs. Gitelson testified as to the value of her household possessions,
including the following: a $3,500 blouse, two $2,000 dresses, several
dresses worth $1,000 or more, sixty sweaters and pairs of shoes val-
ued at over $200 each, two sofas worth a total of $25,000, a shower
curtain valued at almost $1,900, and other similarly expensive items.
In Lakewood Engineering & Manufacturing Company v. Quinn,37 the
Maryland Court of Appeals took note "of the long-standing rule that
an owner of property can testify as to its value."38 Under Maryland
law, a homeowner can testify as to the fair market value of common
consumer goods, which will usually be close or equal to their replace-
_________________________________________________________________

34 Id. at 245.
35 C & K Lord, Inc. v. Carter, 536 A.2d 699, 709 (Md. App. 1988).

36 McSlarrow v. Walker, 467 A.2d 196, 200 (Md. App. 1983).

37 604 A.2d 535 (Md. App. 1992).
38 Lakewood Eng'g & Mfg. Co. v. Quinn, 604 A.2d 535, 542 (Md. App.
1992).

                    10
ment cost. Expert testimony, however, is required to establish the
value of unusual items such as rare books or art work.39

Therm-O-Disc argues that the items Mrs. Gitelson lost in the fire
were so unusual as to require expert testimony. Therm-O-Disc's posi-
tion confuses the nature of the goods with the quality of the goods.
While the goods in question were clearly expensive, they were indis-
putably common, household goods. Thus, we hold that, under
Lakewood, no expert was required, and that Mrs. Gitelson's testimony
was sufficient to establish her damages.

IV.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED
_________________________________________________________________
39 Id. at 542-43.

                    11
