UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL J. HARTNETT,
Plaintiff-Appellant,

and

SHEILA HARTNETT,
Plaintiff,
                                                               No. 97-2156
v.

GLOBE FIREFIGHTER SUITS,
INCORPORATED,
Defendant & Third Party
Plaintiff-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Catherine C. Blake, District Judge.
(CA-95-468-CCB)

Argued: May 8, 1998

Decided: June 29, 1998

Before ERVIN and MOTZ, Circuit Judges, and BEEZER,
Senior Circuit Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven Roy Kiersh, Washington, D.C., for Appellant.
Christopher Redmond Dunn, DECARO, DORAN, SICILIANO,
GALLAGHER & DEBLASIS, L.L.P., Lanham, Maryland, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Daniel J. Hartnett appeals from the district court's decision to
exclude the testimony of Hartnett's expert witness and to deny Hart-
nett's motion to amend his complaint. Finding no error, we affirm.

I.

On October 29, 1992, Hartnett, who worked as a civilian firefighter
for the Navy, sustained burns and scarring on his arm when the fire
protection coat he wore failed to protect him while he participated in
a live training drill. Hartnett and his wife, Sheila, filed suit against
Globe Firefighter Suits, Inc., asserting claims for products liability
and loss of consortium. Globe, in turn, filed a third-party complaint
against Minnesota Mining and Manufacturing Company (3M), the
manufacturer of the reflective tape used on the sleeves of the coat,
seeking full contribution and indemnification.

The Hartnetts proffered a single expert witness, Ira Block, Ph.D.,
in support of their claims. Dr. Block testified in deposition that the
reflective tape on Harnett's fire protection coat was defectively
designed. He opined that the tape ignited upon exposure to flame and
allowed hot gases to permeate through the fabric of the coat, which
ultimately burned Hartnett. Dr. Block concluded that the reflective
tape burned before the other parts of the coat and that the tape ren-
dered the coat inherently dangerous for its intended purpose of fire-
fighting.

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Dr. Block based his conclusion on a makeshift test that he per-
formed, in which he exposed the coat and reflective strips to flames
from a Bunsen burner and a cigarette lighter. He did not design his
test to measure the coat against the industry standards promulgated by
the National Fire Protection Association (NFPA); he did not produce
a test capable of reproduction or in accordance with any standardized
procedures; and he did not measure the test protocols in any way
beyond his own visual observation and using his hand as a heat detec-
tor. Moreover, Dr. Block conceded that the coat (with reflective tape)
probably satisfied the NFPA industry standards, and indicated he had
no information that the coat (with tape) fell below consumer expecta-
tions.

On November 26, 1996, Globe and 3M filed motions in limine to
exclude Dr. Block's testimony. They argued that Dr. Block did not
properly test the coat and that he relied on no authority other than his
own subjective opinion in reaching his conclusions. Soon thereafter,
3M filed a notice of intent to rely on Virginia law, and requested that
the district court dismiss the Hartnetts' strict liability and loss of con-
sortium claims as not cognizable under Virginia law. The district
court ruled that Virginia law applied and granted 3M's motion to dis-
miss those claims. In response, the Hartnetts requested leave to amend
and clarify their complaint to assert claims for negligence and breach
of warranty. See Morgen Indus., Inc. v. Vaughan , 471 S.E.2d 489, 492
(Va. 1996).

The district court then granted the motions to exclude Dr. Block's
testimony, concluding that it could not "find that Dr. Block's testi-
mony [was] sufficient evidence that the reflective trim sewn on to the
sleeves of the [fire protection] coat was defective" because, like the
expert "in Alevromagiros [v. Hechinger Co. , 993 F.2d 417, 421 (4th
Cir. 1993)], `[h]e testified to no customs of the trade, referred to no
literature in the field, and did not identify the reasonable expectations
of consumers.'" The court also denied the Hartnetts' motion to
amend, reasoning that (1) the Hartnetts filed the motion well after 3M
filed its notice to rely on Virginia's nonrecognition of the strict prod-
ucts claim, and only after the court dismissed that claim, and (2) the
amendment would be futile because, other than Block's excluded tes-
timony, the Hartnetts had proffered no evidence to establish that the
coat was defective. Daniel Hartnett appeals.

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II.

On appeal, Hartnett argues only that the district court abused its
discretion in excluding the testimony of Dr. Block and erred in deny-
ing the motion to amend the complaint. Both contentions lack merit.

Under Virginia law, a products liability plaintiff

          must prove that the product contained a defect which ren-
          dered it unreasonably dangerous for ordinary or foreseeable
          use. . . . In determining what constitutes an unreasonably
          dangerous defect, a court will consider safety standards pro-
          mulgated by the government or the relevant industry, as well
          as the reasonable expectations of consumers. Consumer
          expectations, which may differ from government or industry
          standards, can be established through evidence of actual
          industry practices, . . . published literature, and from direct
          evidence of what reasonable purchasers considered defec-
          tive. Absent an established norm in the industry, a court is
          constrained to rely on the opinion testimony of experts to
          ascertain the applicable safety standard.

Alevromagiros, 993 F.2d at 420-21 (internal footnotes, citations, and
quotation marks omitted). Thus, Virginia law does not favor reliance
on expert testimony to prove a products liability claim. If a plaintiff
does rely on an expert, that expert's testimony must be supported by
evidence "such as test data or relevant literature in the field." Id. at
422.

Dr. Block's testimony does not meet these requirements. Dr. Block
never identified any government standards and failed to test the coat
to determine whether it met the industry standards as promulgated by
the NFPA. Rather, he conceded that most manufacturers of fire pro-
tection coats use 3M's reflective tape, suggesting that this complied
with the industry standard. Dr. Block made no "detailed inspection"
in conducting his test, nor did he cite specific published materials
upon which he relied to reach his conclusion. Cf. Freeman v. Case
Corp., 118 F.3d 1011, 1016-17 (4th Cir. 1997). He performed a single
test that involved no controlled procedures or standard measurements.
Finally, Dr. Block cited nothing suggesting that the use of the reflec-

                     4
tive trim did not meet consumer expectations. Consequently, the dis-
trict court did not abuse its discretion in granting Globe's and 3M's
motions to exclude the testimony of Dr. Block.

Nor did the district court err in refusing to grant the motion to
amend the complaint. To prevail under either a negligence or a breach
of warranty theory in Virginia, Hartnett would have to prove that the
fire protection coat was unreasonably dangerous for its ordinary or
foreseeable uses and that the defect existed at the time the product left
the manufacturer's control. See Morgen Indus. , 471 S.E.2d at 492;
Alevromagiros, 993 F.2d at 420-21. Here, Dr. Block provided Hart-
nett's only evidence that the coat was unreasonably dangerous. That
evidence having been properly excluded for failure to meet the mini-
mum threshold of reliability for expert testimony, amendment of the
complaint would have been futile. See Island Creek Coal Co. v. Lake
Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987) (discussing futility as
a basis for denying a request to amend a complaint).

AFFIRMED

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