UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRADFORD HALL,
Plaintiff-Appellant,

v.                                                               No. 97-2770

NORTON COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-96-3495-PJM)

Argued: October 27, 1998

Decided: December 29, 1998

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
MOON, United States District Judge for the Western District of
Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Paul Zanelotti, KOONZ, MCKENNEY, JOHNSON,
DEPAOLIS & LIGHTFOOT, L.L.P., Greenbelt, Maryland, for
Appellant. Linda S. Woolf, GOODELL, DEVRIES, LEECH &
GRAY, L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF:
Peter C. DePaolis, Marc Fiedler, KOONZ, MCKENNEY, JOHN-
SON, DEPAOLIS & LIGHTFOOT, L.L.P., Greenbelt, Maryland, for
Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bradford Hall ("Hall") sued Norton Company ("Norton") for inju-
ries he sustained as a result of handling a Norton portable concrete
saw. The district court granted summary judgment on behalf of Nor-
ton and Hall now appeals this ruling. We affirm.

In the fall of 1993, Hall, a resident of Hedgesville, West Virginia,
was employed by Perini Construction Company and assigned to work
at a construction site in Winchester, Virginia. On November 22, 1993,
appellant and a co-worker, Fredric Lewis, were attempting to load
into an on-site storage trailer a Model C-117 portable concrete saw
manufactured by Norton. Lewis, who was standing in the rear of the
storage trailer, attempted to lift the saw by its handle. Appellant was
standing either on the ground or on the trailer's steps, attempting to
lift the saw by its frame. Suddenly, the saw slipped* from Lewis's
grasp and the weight was transferred onto appellant. The pair then
recovered their grasp on the saw and finished loading it into the
trailer. Thereafter, Hall drove himself to an urgent care center to
obtain treatment for the injuries he sustained to his chest.

Two and one-half years passed before anyone inspected the saw for
defects. Prior to that time, the concrete saw continued to be used on
construction sites by Perini. In May 1996, Kenneth McLauchlan, an
engineer retained by Hall's worker's compensation insurer, retrieved
the saw and inspected it for the first time on June 29, 1996. At that
point, McLauchlan noted there was significant damage to the handle
assembly, including a problem with the saw operator's right side set
screw, which was bent in the vertical axis.
_________________________________________________________________
*The thrust of Hall's complaint is that the saw's handle improperly
slipped out about 10-12 inches from the saw's outer tubing in a telescop-
ing fashion. He brought a products liability action based on this alleged
malfunction with the saw.

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Hall pled four causes of action: strict liability; negligence; implied
warranty of merchantability; and implied warranty of fitness for a par-
ticular purpose. As part of his case, Hall planned to introduce the tes-
timony of another engineering expert, David McClelland, regarding
the allegedly defective design of the saw's thumb screw mechanism.

Prior to trial, Norton filed a Motion to Exclude Expert Testimony
and Motion for Summary Judgment. Norton contended that Hall's
claims were time-barred under the applicable Virginia and Maryland
statutes. In addition, Norton asserted that McClelland lacked a suffi-
cient factual basis for his opinion that the adjustable handle design
employed by Norton was inadequate to support the weight of the saw.
Norton moved to exclude this evidence for failure to meet the tests
of reliability and relevance as required under the Federal Rules.

In opposition to Norton's motions, Hall filed a memorandum to
which he attached an affidavit from McClelland elaborating upon his
opinions regarding the defectiveness of the saw handle's thumb screw
design. Norton then moved to strike McClelland's affidavit on the
grounds that it purportedly contradicted his prior testimony and intro-
duced new opinions. Hall responded by stating that McClelland's
opinions in the affidavit were not new, but were clarifications of his
previously stated opinion.

At a hearing on Norton's motions, the district court ruled that
Hall's negligence and strict liability claims were barred by Virginia's
statute of limitations, but that the warranty claims were probably
timely under applicable Maryland law. The court then addressed the
admissibility of Hall's expert testimony. While the court acknowl-
edged that there was a disagreement among the parties regarding a
potential discrepancy in the expert's deposition testimony and his
affidavit statement, the main focus of the court's decision was on the
fact that the expert's opinion did not support a claim for breach of
warranty. Specifically, the court emphasized the lack of evidence to
demonstrate that the concrete saw was not fit for the ordinary purpose
for which it was intended or that the alternative designs proffered by
Hall's expert were employed by other manufacturers in the construc-
tion of concrete saws. Therefore, the court granted Norton's motion
to exclude Hall's expert testimony and awarded summary judgment
on behalf of Norton.

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This Court may only reverse the district court's decision concern-
ing the admissibility of expert testimony if we find an abuse of discre-
tion. Thomas J. Kline, Inc. v. Lorillard, Inc. , 878 F.2d 791, 799 (4th
Cir. 1989).

We believe that the district court did not abuse its discretion in
excluding McClelland's expert testimony. A qualified expert witness
must provide testimony that is helpful to the trier of fact. Fed. R.
Evid. 702. A court may refuse to allow an expert to testify if his fac-
tual assumptions are not supported by the evidence. See Sparks v. Gil-
ley Trucking Co., 992 F.2d 50, 54 (4th Cir. 1993). The district court
found that McClelland had not performed any tests on the weight
bearing capacity of the thumb screw mechanism, had not inspected
the saw before preparing his report, and did not know the positions
of Hall and his co-worker at the time of the accident. Under these cir-
cumstances, the district court did not abuse its discretion in excluding
McClelland's testimony on the basis that "there really is no competent
expert testimony that would prevent a trier of fact to do other than
purely speculate as to what the cause of injury was relative to the
saw." (J.A. at 476). Absent McClelland's testimony, Hall has no evi-
dence to prove the defective nature of the saw. The district court was
therefore correct in granting Norton's motion for summary judgment.

Even if McClelland's testimony is admitted, Hall cannot make out
a prima facie case of breach of warranty under Maryland law in order
to survive summary judgment. To prove a breach of warranty under
Maryland law, Hall must demonstrate the existence of a warranty, that
the warranty was broken, and that the breach was the proximate cause
of the harm sustained. See Klein v. Sears, Roebuck & Co., 773 F.2d
1421, 1424 (4th Cir. 1985) (citing Mattos, Inc. v. Hash, 368 A.2d 993,
997 (Md. 1977)). In this case, Hall was unable to prove that the con-
crete saw was not fit for its ordinary purpose or that it was defective
when it left the manufacturer's control. See Giant Food, Inc. v. Wash-
ington Coca-Cola Bottling Co., 332 A.2d 1, 10-11 (Md. 1975). In
fact, the uncontroverted evidence shows that more than two years
passed before Hall even engaged an expert to examine the saw for the
first time. During the two and one-half years prior to the instigation
of Hall's suit, Perini continued to use the saw, which the district court
observed may account for any problems with the saw that Hall's
experts may have found. In addition, Hall cannot prove that any

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alleged defect was the proximate cause of the claimed injury. See Lee
v. Baxter Healthcare Corp., 721 F. Supp. 89, 95 (D. Md. 1989), aff'd,
898 F.2d 146 (4th Cir. 1990). Accordingly, we affirm the district
court's grant of summary judgment in Norton's favor.

AFFIRMED

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