Case Information
*1 Before WILKINSON, Chief Judge, and NIEMEYER and MICHAEL, Circuit Judges.
_________________________________________________________________ Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Wilkinson and Judge Michael joined.
COUNSEL
ARGUED: Jill Waldman, GIBBS & HOLMES, Charleston, South Carolina, for Appellant. W. Randall Bassett, KING & SPALDING, Atlanta, Georgia, for Appellee. ON BRIEF: Allan R. Holmes, GIBBS & HOLMES, Charleston, South Carolina, for Appellant. Chil- ton Davis Varner, KING & SPALDING, Atlanta, Georgia; Wm. Howell Morrison, HOLMES & THOMSON, L.L.P., Charleston, South Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
While James Oglesby was leaning into the engine compartment of
a seven-year old Chevrolet Silverado pickup truck to adjust a trans-
mission cable, a radiator hose detached, causing Oglesby serious burn
injuries. Contending that his injuries were caused by a defective plas-
tic hose connector between the radiator and the radiator hose, Oglesby
filed this product liability action against General Motors Corporation,
the manufacturer of the truck, alleging negligence, breach of war-
ranty, and strict liability under South Carolina law.
On General Motors' motion, the district court entered summary
judgment in General Motors' favor, rejecting under Federal Rule of
Evidence 702 the opinion of Oglesby's expert witness, a mechanical
engineer, but ruling that the principles of Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
For the reasons that follow, we affirm.
I
In or around 1991, Blaine Nielson purchased a used 1988 Chevro- let Silverado pickup truck. Within the first years after purchasing the *3 truck, Nielson had to overhaul the truck's engine and rebuild its trans- mission. At the same time, he removed the radiator, cleaned and flushed it, and replaced the radiator's hoses.
Several years later, in June 1995 when the truck had about 156,000 miles on it, the rods began "knocking," and the engine began to over- heat. Nielson and his friend, James Oglesby, who was a certified mechanic, completely rebuilt the engine. During this repair, not only did they replace the thermostat in the radiator, but they also removed and cleaned the radiator, replacing one of its hose clamps.
Within two weeks of this repair, the transmission began to shift "too slowly," and Nielson took the truck to Oglesby's place of work to have Oglesby adjust the transmission "detent cable," which causes the transmission to change gears. To reach the detent cable, Oglesby stepped on the driver's side front bumper, leaned into the engine com- partment, and reached down toward the engine's firewall where the cable was located. Oglesby's body was positioned on the driver's side of the truck facing the windshield with his backside facing the radia- tor. As Nielson described it, Oglesby "was kneeling up inside, reach- ing to adjust the linkage. He is short, so instead of reaching over the fender -- like I'm taller, but I don't know how to do it, so Jim was doing that for me. But he got up inside and was leaning up over the carburetor and stuff." As Oglesby leaned down to adjust the cable, Nielson stated that he heard "a big `w[h]oosh' sound" and he heard Oglesby yell. The radiator hose had detached and sprayed hot coolant on Oglesby, severely burning his torso from the waist down and his legs. Oglesby thereafter received extended hospital care to treat his burns.
Following the incident, Nielson reattached the radiator hose and continued driving the truck. Two months later, in September 1995, Nielson and Oglesby's attorney inspected the radiator and discovered a broken piece of the plastic inlet connector inside the radiator hose. The inlet connector is a lipped pipe-type piece that serves as the con- nection device between the radiator hose and the radiator. Oglesby filed suit against General Motors, the manufacturer of the truck, in state court in Charleston, South Carolina, alleging liability based on negligence, breach of warranty, and strict liability. General *4 Motors removed the case to federal court, based on diversity of citi- zenship, and filed a motion for summary judgment, contending that the hose connector was not defective when it left control of General Motors, that it had breached no duty of reasonable care, and that plaintiff's expert testimony was inadmissible under both Daubert and Federal Rule of Evidence 702. 1 In answer to General Motors' motion and in support of his claims, Oglesby presented the opinion of Doug- las Bradbury, a former professor of mechanical engineering at Clem- son University. Bradbury had previously consulted in an array of cases involving the mechanical design and safety of various industrial products, but he had no particularized experience or expertise in eval- uating either automobile manufacturing processes or the strength of plastic automobile component parts.
In preparing to render his expert opinion, Bradbury looked at the broken plastic connector and the piece which broke off, took physical measurements of the connector, and photographed the parts. These three steps constituted the entirety of Bradbury's investigation into the part or its manufacture. He found that "the connector [was] not circular, but [was] a flattened oval in shape," noting that the differ- ence between "the major and minor dimensions of the oval shape [was] 1/10 inch." Bradbury did not know nor learn how the part was manufactured or from what material it was manufactured. He did not know nor learn any specifications prescribed for the part, and he did not perform any tests or calculations to determine the strength of the part or the stresses to which it was subjected. From his observation and measurement, Bradbury concluded:
The out-of-roundness of the upper (inlet) hose connector was apparently a manufacturing defect. Certainly, there would be no reason to design it as an oval shape, consider- ing the method of clamping. Two probable causes of the 1 Federal Rule of Evidence 702, entitled "Testimony by Experts," pro- vides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
out-of-roundness are recognized. One is that the upper con- nector was manufactured out-of-round. This is most unlikely, considering that the mold was designed to produce round, circular connectors. Also, the out-of-roundness should have been seen during the routine on-line inspection. It is most likely that a defect in the formulation or han- dling of the thermo-setting plastic caused time-dependent internal stresses which deformed the connector from round to oval, ultimately resulting in the loosening of the upper hose and the scalding of James Oglesby. After Bradbury gave his opinion, a General Motors expert testified that the part was "not a thermosetting plastic," but a "nylon compos- ite, glass filled," that had "thermoplastic" characteristics including the "ability to be remolten." Bradbury then submitted a supplemental affi- davit stating, "I incorrectly stated that the inlet connector was made of thermosetting plastic when it was really made of a glass thermo- plastic nylon composite." Nonetheless, he concluded, still without possessing the specific properties of the material, that the "error does not in any way alter my opinion as to the defect." General Motors' expert concluded that the "hose separation was . . . due to large bending loads applied to the hose connection" from "Mr. Oglesby leaning or pressing his torso against the radiator hose." Gen- eral Motors also determined that Oglesby was the only individual, past or present, to file a complaint alleging a defect in the inlet con- nector installed in any of the 2,505,491 series C/K trucks, which included the 1988 Silverado model, that it manufactured between 1987 and 1991.
In granting General Motors' summary judgment motion on strict liability and breach of warranty, the district court applied South Caro- lina product liability law and concluded that Oglesby "failed to pro- duce competent evidence that the truck was in the same condition as when it left the defendant's possession," explaining that the truck's "age, mileage, and prior repairs exceed the reasonable limits of estab- lishing the fundamental element that the product was in the same con- dition at the time of the accident as when it left the defendant's possession." On the negligence claim, the court ruled that "[p]laintiff *6 has shown this court nothing which would support the claim that GM knew of a potential product defect involving this type of radiator." While the district court concluded that Daubert did not apply to Brad- bury's testimony because it was not scientific testimony, it neverthe- less held that Federal Rule of Evidence 702 limited the admissibility of testimony of an expert testifying in a field of technical or other spe- cialized knowledge such as engineering. Applying Rule 702, the court refused to consider Bradbury's opinion because it was mere specula- tion:
The proposed testimony must go beyond mere speculation or conjecture to be of assistance to the trier of fact. In this case, while plaintiff's expert is clearly qualified as an expert on various engineering principles, his proposed opinion in this case lacks any probative value and would be of no assis- tance to the trier of fact. . . . [T]his court finds that [Brad- bury's] proposed testimony lacks the reliability, foundation and relevance necessary for admissibility in this case [under Federal Rule of Evidence 702]. The expert has shown no knowledge of the manufacturing process, the radiator's composite makeup, nor has he conducted any meaningful testing or analysis.
On appeal, Oglesby contends that Bradbury's prior experiences in working with industrial products qualified him to give a meaningful, nonscientific opinion on whether the plastic inlet connector contained a manufacturing defect. On cross-appeal, General Motors contends that the district court erred in not subjecting Bradbury's testimony to the rigors of Daubert, which would have provided an alternative ground upon which to reject Bradbury's opinion.
II
After the district court entered judgment in this case but before oral
argument on appeal, the Supreme Court decided Kumho Tire Co. v.
Carmichael,
Bradbury observed that the inlet connector was out of round and that, therefore, forces from the hose clamp as well as internal pressure from the radiator contents caused the connector to crack over time. He assumed that the manufacturer's mold was round and deduced that the connector could become out of round only during the time that the part was curing during "handling," presumably because it was a "thermo-setting" plastic. He assumed that the plastic part could not have become out of round much later because it could not be remolded by heat.
Bradbury admitted, however, that he did not know the type or com- position of the plastic. He did not ask the manufacturer; he did not analyze the part; he did not test it; he did not apply any calculations. 2 2 A sampling of Bradbury's deposition testimony on this subject fol- lows:
Thus, as a matter of logic, Bradbury could not eliminate other equally plausible causes for the plastic to have come out of round or to have cracked, such as engine overheating; trauma to the inlet connector if the radiator, when removed from the car, had tipped over; or stress applied by leaning on the connector with too much weight when the plastic was hot -- all of which would be consistent with the given his- tory of the part in this case. Bradbury assumed that the part could have gone out of round only after it left the manufacturer's mold but before it was fully set, but he had no factual basis by which to reach that conclusion.
As it turned out, the part was not manufactured out of thermo- setting plastic but out of a nylon composite which allows it to be
Q. You haven't done any computer analysis of any of the stresses or strengths of the materials we have been discuss- ing, have you?
A. No, I have not.
Q. You have done no testing of the radiator or parts of the radi- ator.
A. No. Just photographed it.
* * *
Q. You haven't done any analysis by way of equations or cal- culation.
A. No.
Q. Correct?
A. That's correct. That's the reason I used the term "quantita- tive" earlier. Q. I understand. You haven't done any analysis of the manu- facturing process of the radiator either by way of use of the inspection mold process nor the assembly line process itself. A. No.
Q. You have done no actual testing in which you would put the radiator under pressure and apply various external forces to it either.
A. No. *10 remolded. Despite the fact that Bradbury's manufacturing defect the- ory appears to be premised on the inability of the part to change shape after it was "set," Bradbury did not alter his opinion at all when con- fronted with the error in his underlying assumption as to the composi- tion of the part. Under generally known engineering principles, stress applied in a given amount in a particular direction would theoretically cause a plastic part to reshape itself, if hot enough, or to break. To conclude, however, that a particular stress caused a particular plastic part to reshape itself or to break, the engineer would have to know the amount of the particular stress and the stress resistance of the part at various temperatures in order to ascertain that the particular stress overcame the stress resistance of the part. Bradbury conceded, how- ever, that he had none of the necessary data and therefore could not make any such calculations for the part in this case. He could only speculate as to a possibility which was no more likely than other available possibilities. Without more information, it would appear just as consistent with Bradbury's theory that the overheating of the engine could have caused the part to reshape, perhaps coupled with pressure by a mechanic leaning on it when hot.
The district court recognized this flaw, concluding that Bradbury's opinion lacked "any probative value" because it lacked "the reliabil- ity, foundation and relevance necessary for admissibility" under Fed- eral Rule of Evidence 702. We cannot conclude that the district court abused its discretion in excluding Bradbury's opinion testimony. While the district court did not have the benefit of Kumho Tire, it reached the same result that an analysis under Daubert would have yielded. III
Without Bradbury's testimony, Oglesby failed to meet his burden of proof. He proffered no evidence demonstrating (1) that the plastic inlet connector was in essentially the same condition at the time of the incident in 1995 as it was when it left General Motors' plant in 1988 or (2) that General Motors failed to exercise due care.
Because Oglesby's injury in this case was sustained in South Caro-
lina and removal to the district court was based on diversity of citi-
*11
zenship, see 28 U.S.C. § 1332, we apply the substantive law of South
Carolina. See Klaxon Co. v. Stentor Electric Mfg. Co.,
Under South Carolina law, a plaintiff in an action for strict product
liability must demonstrate "(1) that he was injured by the product; (2)
that the product, at the time of the accident, was in essentially the
same condition as when it left the hands of the defendant; and (3) that
the injury occurred because the product was in a defective condition
unreasonably dangerous to the user." Allen v. Long Mfg. NC, Inc., 505
S.E.2d 354, 356 (S.C. Ct. App. 1998) (internal quotation marks, cita-
tion, and emphasis omitted); see also S.C. Code § 15-73-10 (estab-
lishing liability of seller for defective products). Similarly, to prove
a breach of warranty claim, a plaintiff must demonstrate that the
goods were defective "at the time the sale was completed." Doty v.
Parkway Homes Co.,
For the foregoing reasons, the judgment of the district court is AFFIRMED.