                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1753


STEPHEN E. BILENKY, Administrator of the Estate of Frank S.
Wright, deceased,

                 Plaintiff – Appellee,

           v.

RYOBI TECHNOLOGIES, INCORPORATED,

                 Defendant – Appellant,

           and

HOME DEPOT USA, INCORPORATED; ONE WORLD TECHNOLOGIES,
INCORPORATED;   TECHTRONIC    INDUSTRIES   NORTH   AMERICA,
INCORPORATED; TECHTRONIC INDUSTRIES COMPANY, LIMITED; RYOBI
NORTH AMERICA, INCORPORATED; RYOBI LTD.; THE HOME DEPOT,
INCORPORATED,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00345-RAJ-DEM)


Argued:   October 25, 2016                   Decided:   November 23, 2016


Before WILKINSON, KING, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.
ARGUED: Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond,
Virginia, for Appellant.       Lawrence Steven Emmert, SYKES,
BOURDON, AHERN & LEVY, P.C., Virginia Beach, Virginia, for
Appellee. ON BRIEF: Davin M. Rosborough, BOWMAN AND BROOKE LLP,
Richmond, Virginia, for Appellant. Richard N. Shapiro, SHAPIRO,
APPLETON & DUFFAN, PC, Virginia Beach, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Frank S. Wright died after the Ryobi-branded lawn tractor

he was riding caught fire.              The administrator of Mr. Wright’s

estate, Stephen E. Bilenky, brought a products liability lawsuit

against     several      defendants,      including         Ryobi       Technologies,

Incorporated (“Ryobi”).          After a four-day trial in the Eastern

District of Virginia, the jury found Ryobi liable for negligence

and awarded $2,500,000 in damages.               Ryobi has appealed from the

district court’s judgment, and as explained below, we affirm.



                                         I.

                                         A.

     On   September      15,    2005,   Mr.     Wright      and   his    wife    Audrey

travelled     to    a   Home    Depot   store        in   Norfolk,      Virginia,    to

purchase a new lawn tractor. 1                The Wrights paid $1,058 for a

Ryobi lawn tractor, Model HDK19H42 (the “Ryobi tractor”).                           The

next day, Home Depot delivered the Ryobi tractor to the Wrights’

home in Chesapeake, Virginia.             Although the Ryobi tractor, the

accompanying       operator’s    manual,       and    the    Home    Depot      receipt




     1 Because we are assessing a denial of Ryobi’s motion for
judgment as a matter of law, we recount the facts in the light
most favorable to Bilenky. See Adkins v. Crown Auto, Inc., 488
F.3d 225, 231 (4th Cir. 2007).



                                         3
prominently displayed the trade name Ryobi®, it was actually

Husqvarna that manufactured the Ryobi tractor.

       In the years preceding his death, Mr. Wright’s health began

to decline.       Mr. Wright had survived a few heart attacks, and he

suffered    from     diabetes,      coronary     disease,    and        peripheral

neuropathy.       Mr. Wright often used a wheelchair and was unable

to walk for a period of time.            He also suffered from dementia,

although his condition had improved as of October 2010 due to a

medication change.

       On December 23, 2010, Mr. Wright decided to use the Ryobi

tractor to either cut grass or bag leaves.                  Approximately one

hour after Mr. Wright went outside, Mrs. Wright heard a loud

noise.     She saw the Ryobi tractor — with her husband still in

the operator’s seat — engulfed in smoke and fire.                       Mr. Wright

then   dismounted     the   Ryobi   tractor    and   attempted     to    flee   the

intensifying flames.        While Mrs. Wright fumbled with the garden

hose and called 911, Mr. Wright burned to death in his backyard.

He was eighty-eight years old.

                                        B.

       Bilenky,      the     Wrights’        son-in-law,     was         appointed

administrator of Mr. Wright’s estate on December 18, 2012.                      Two

days later, on December 20, Bilenky filed this action in the

Circuit Court for the City of Norfolk.                 Among the defendants



                                        4
were Ryobi and       Home Depot USA,          Incorporated (“Home Depot”). 2

Bilenky’s claims included negligence, gross negligence, breach

of express warranty, and breach of implied warranty.                    Home Depot

removed the matter to the Eastern District of Virginia on June

19, 2013, invoking the district court’s diversity jurisdiction.

See 28 U.S.C. § 1332.

       On August 27, 2014, Home Depot and Ryobi filed motions for

summary judgment.          In support of its motion, Ryobi contended

that it could not be held liable on any of Bilenky’s claims

because it had no involvement in the design, manufacture, or

distribution of the Ryobi tractor (the “nonliability theory”).

The    district    court   declined   to      rule   on   the    summary   judgment

motions before trial.

       The trial began on January 14, 2015.                   Bilenky’s theory was

that the Ryobi tractor’s fuel hose detached from the fuel tank,

causing gasoline to stream out of the fuel hose and ignite.

Bilenky presented models of the fuel tank, photographs, and the

Ryobi tractor operator’s manual, as well as the testimony of a

fire       investigation   and   origin       expert,     a    design   engineering



       2
       The other defendants were Ryobi Limited; Ryobi North
America, Incorporated; Techtronic Industries Company, Limited;
Techtronic   Industries   North  America,   Incorporated;   Ryobi
Technologies,     Incorporated;    One    World     Technologies,
Incorporated; and Home Depot, Incorporated.     Those defendants
were dismissed prior to the trial.



                                          5
expert, Mrs. Wright, two paramedics, a deputy fire marshal, a

Home    Depot      corporate         representative,          one       of     the      Wrights’

neighbors, the Wrights’ two daughters, and Bilenky.

       On   January      15,    at    the     conclusion      of    Bilenky’s           case-in-

chief, Home Depot and Ryobi jointly moved for judgment as a

matter of law pursuant to Rule 50(a) of the Federal Rules of

Civil Procedure.             They argued, in pertinent part, that Bilenky

had    failed     to     establish         either   design       defect       or     causation.

Notably,         however,      the         motion    did      not        mention         Ryobi’s

nonliability       theory.           For    other    reasons,       the      district        court

granted the motion as to Bilenky’s gross negligence claim only.

       When the trial resumed on January 20, the district court

granted     Home       Depot   and    Ryobi’s       joint     motion         for    a   directed

verdict     as    to    Bilenky’s      express       warranty       claim,         leaving     his

negligence       and    implied      warranty       claims.        On     January       21,    the

defense rested, a charge conference was conducted, and the case

was    submitted        to   the     jury.      Ryobi      did     not    request        a    jury

instruction pertinent to its nonliability theory.                                  Furthermore,

Ryobi explicitly stated that it had no objection to the district

court’s jury charge, which did not include such an instruction.

The next day, January 22, the jury found in favor of Bilenky on

the negligence claim against Ryobi — but not Home Depot — and

against Bilenky on the implied warranty claim.                            The jury awarded

$2,500,000 in damages.

                                               6
       On   February        19,     2015,   Ryobi          filed    a    renewed       motion   for

judgment as a matter of law pursuant to Rule 50(b).                                       For the

first time since its pretrial summary judgment motion, Ryobi

raised      its    nonliability          theory.            Ryobi       also    reiterated      its

contention,        made       at   trial,     that     the        evidence       of    defect   and

causation         was   insufficient          to      support        Bilenky’s          negligence

claim.

       By its Memorandum Opinion and Order of June 26, 2015, the

district court denied Ryobi’s renewed motion.                                   See Bilenky v.

Ryobi Techs., Inc., No. 2:13-cv-00345 (E.D. Va. June 26, 2015),

ECF   No.    206    (the       “Opinion”).            In    rejecting          the    nonliability

theory, the Opinion concluded that Ryobi was a proper defendant

pursuant to the apparent manufacturer doctrine, under which an

entity “subjects itself to the same liability as a manufacturer”

by    “put[ting]        out    a    product      as    its    own.”            See    Opinion   15.

According to the court, there was “sufficient evidence in the

record to support the jury’s finding that Ryobi Technologies,

Inc., put the Ryobi tractor out as its own,” in that the “jury

was presented with evidence that Mr. Wright purchased a tractor

with the word ‘Ryobi’ printed on its side, that he possessed an

owner’s manual with the name ‘Ryobi’ printed on the top, and

that his receipt was indeed for a Ryobi lawn tractor.”                                     Id. at

16.      The      Opinion      also     concluded          that     Bilenky      had    presented

sufficient        evidence         of   defect       and     causation         to     support   the

                                                 7
negligence finding against Ryobi.               Id. at 16-20.           Ryobi timely

noted this appeal, and we possess jurisdiction pursuant to 28

U.S.C. § 1291.



                                      II.

      We review de novo a district court’s denial of a motion for

judgment as a matter of law.             See Adkins v. Crown Auto, Inc.,

488   F.3d   225,    231   (4th   Cir.       2007).     We    assess      whether    a

reasonable    jury,     viewing    the       evidence    in       the    light   most

favorable to the prevailing party, had a sufficient evidentiary

basis to find in favor of that party.             Id.



                                      III.

      On   appeal,    Ryobi   first   contends        that   it    is   entitled    to

judgment as a matter of law because it cannot be held liable as

the apparent manufacturer of the Ryobi tractor.                         Then, Ryobi

asserts that it deserves judgment as a matter of law premised on

insufficient trial evidence of both defect and causation. 3




      3Ryobi also contends that it is entitled to a new trial
because the district court improperly struck two of Ryobi’s
contributory negligence defenses, applied an incorrect standard
for discovery sanctions, and wrongly allowed Bilenky to
introduce prejudicial evidence. We discern no reversible error,
however, with respect to those matters.



                                         8
                                   A.

      We first address Ryobi’s contention that it cannot be held

liable as the apparent manufacturer of the Ryobi tractor.              In

Virginia, a plaintiff can impose liability on a manufacturer or

seller of a defective product if the product is unreasonably

dangerous for its ordinary or reasonably foreseeable use and the

unreasonably dangerous condition existed when the product “left

the defendant’s hands.”      See Austin v. Clark Equip. Co., 48 F.3d

833, 836 (4th Cir. 1995) (quoting Logan v. Montgomery Ward &

Co., Inc., 219 S.E.2d 685, 687 (Va. 1975)).            Pursuant to the

apparent manufacturer doctrine, an entity holding itself out as

the manufacturer may be subject to the same liability as the

actual manufacturer.     See Swift & Co. v. Blackwell, 84 F.2d 130,

132   (4th   Cir.   1936).   In   Swift,   we   explained   the   apparent

manufacturer doctrine as follows:

      One who puts out as his own product chattels made by
      others is under a duty to exercise care, proportionate
      to the danger involved in the use of the chattels if
      improperly made, to secure the adoption of a proper
      formula or plan and the use of safe materials and to
      inspect the chattel when made. But he does not escape
      liability by so doing.    By putting a chattel out as
      his own product, he causes it to be used in reliance
      upon his care in making it.     Therefore, he is liable
      if, because of some negligence in its fabrication or
      through lack of proper inspection during the process
      of manufacture, the article is in a dangerous
      defective   condition which    the   vendor  could  not
      discover after it was delivered to him.




                                    9
Id. (quoting Restatement of Torts § 400).                           We later recognized

that Virginia has adopted the rule enunciated in Swift.                                           See

Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir.

1962) (citing Highland Pharmacy v. White, 131 S.E. 198, 200 (Va.

1926)).

       Here, it is undisputed that Husqvarna manufactured and Home

Depot    sold     the    Ryobi    tractor.            Ryobi    contends        that          Bilenky

cannot use the apparent manufacturer doctrine to hold it liable

because       —     unlike       the     entities        deemed          to        be        apparent

manufacturers in Swift, Carney, and Highland Pharmacy — Ryobi

was not involved in the distribution of the defective product.

Bilenky    counters       that     the    prominent        labeling           of    the        Ryobi®

trademark      on   the    Ryobi       tractor,       operator’s         manual,         and     Home

Depot    receipt        gave    the     jury    sufficient         evidence             to    impose

liability on Ryobi.

       As the parties agree, Virginia has not addressed whether

the    apparent       manufacturer        doctrine       may       apply      to        an     entity

outside the chain of distribution of a product that nonetheless

bears the entity’s name.               Furthermore, courts have split on the

issue.    Compare, e.g., Yoder v. Honeywell Inc., 104 F.3d 1215,

1222-24       (10th      Cir.    1997)         (limiting       apparent            manufacturer

liability       under     Colorado       law     to    entities          within         chain     of

distribution),          with,    e.g.,    Brandimart          v.    Caterpillar               Tractor

Co.,    527    A.2d     134,     139-40    (Pa.       Super.       Ct.     1987)         (imposing

                                               10
liability on entity that simply authorized use of its name on

product).      We need not consider what position Virginia would

adopt, however, because Ryobi has waived the issue by failing to

request a jury instruction conforming to its nonliability theory

and its correlating view of the apparent manufacturer doctrine.

See Jiminez v. DaimlerChrysler Corp., 269 F.3d 439, 448 (4th

Cir. 2001) (citing, inter alia, Abel v. Miller, 824 F.2d 1522,

1535 (7th Cir. 1987)).          That is, “[t]o avoid waiver of the

[nonliability] theory, [Ryobi] must have presented the theory at

trial    and   attempted   to   insure   that   the   jury    was   properly

instructed on it.”     See Abel, 824 F.2d at 1535.           Because it did

not do so, Ryobi cannot now rely on the nonliability theory to

obtain judgment as a matter of law. 4


     4  Significantly, Ryobi did not otherwise preserve its
nonliability theory by unsuccessfully presenting it to the
district court prior to submitting proposed jury instructions.
Cf. College Loan Corp. v. SLM Corp., 396 F.3d 588, 599 n.10 (4th
Cir. 2005) (recognizing that “College Loan’s failure to
specifically object to [instructions did not] waive the position
it had already unsuccessfully presented to the district court”).
Although Ryobi raised the nonliability theory in its summary
judgment motion, the court declined to rule on that motion prior
to trial.   At the next opportunity, in its motion at trial for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(a), Ryobi failed to reassert the nonliability
theory.      Indeed,  Ryobi   only   belatedly  reiterated   the
nonliability theory — post-trial — in its Rule 50(b) renewed
motion for judgment as a matter of law.      Of course, “a Rule
50(a) motion is a prerequisite to a Rule 50(b) motion because
the [moving party] must apprise the district court of the
alleged insufficiency of [the] suit before the case is submitted
to the jury.”    See Price v. City of Charlotte, N.C., 93 F.3d
(Continued)
                                    11
                                              B.

       We    turn      to    Ryobi’s     contention         that     Bilenky       presented

insufficient evidence of defect and causation.                            To prevail on a

products liability claim in Virginia, a plaintiff “must prove

that     the      product      contained        a     defect       which     rendered      it

unreasonably dangerous for ordinary or foreseeable use.”                                  See

Alevromagiros         v.    Hechinger    Co.,       993    F.2d    417,    420    (4th   Cir.

1993).         The    plaintiff      also    must     establish      that    the       alleged

defect existed when the product left the defendant’s hands and

that   the      defect      caused     the   plaintiff’s          injury.        Id.     When

determining what constitutes an unreasonably dangerous defect,

courts consider industry and government safety standards as well

as the reasonable expectations of consumers.                        Id. at 420-21.

       Having        carefully    examined      the       record   and     the    thoughtful

Opinion      of      the    district    court,       together       with    the    parties’

written submissions and the arguments of counsel, we discern no

inadequacy of the evidence.                  We are therefore content to affirm

the judgment on the cogent reasoning spelled out by the district

court in its Opinion.




1241, 1249 (4th Cir. 1996).   Therefore, even if Ryobi had not
waived its nonliability theory by failing to request a
conforming instruction, we would be constrained to review for
plain error the court’s denial of Ryobi’s renewed motion for
judgment as a matter of law. See id.



                                              12
                             IV.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             13
