Pugh v. Louisville Ladder, Incorporated

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-2141

JAMES PAUL PUGH, III,

Plaintiff - Appellee,

v.

LOUISVILLE LADDER, INCORPORATED, f/k/a Louisville Ladder
Group, LLC,

Defendant – Appellant,

and

HOME DEPOT U.S.A., INCORPORATED,

Defendant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cv-00656-NCT-PTS)

Argued: September 25, 2009 Decided: January 5, 2010

Before MOTZ and AGEE, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.

Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Motz and Judge Agee joined.

ARGUED: James Donald Cowan, Jr., ELLIS & WINTERS, LLP, Cary,
North Carolina, for Appellant. Vance Barron, Jr., Greensboro,
North Carolina, for Appellee. ON BRIEF: Andrew Chamberlin,
Dixie T. Wells, ELLIS & WINTERS, LLP, Greensboro, North
Carolina; Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

2
DAVIS, District Judge:

In this product liability diversity case, James Paul Pugh,

III (“Pugh”) alleged that a ladder manufactured by Louisville

Ladder, Inc., (“LL”) structurally failed during normal use,

causing Pugh to fall and suffer injuries. At trial, two

engineering experts testified on behalf of Pugh and the jury

returned a verdict in Pugh’s favor. LL filed the instant appeal

arguing that the district court abused its discretion with

respect to three evidentiary rulings. Finding no abuse of

discretion, we affirm.

I.

A.

Excluding the few seconds during which Pugh fell from his

ladder, the facts are undisputed. Pugh purchased an eight-foot

LL ladder from Home Depot in March of 2003. The ladder was

manufactured in Mexico in July of 2002 and had a “load capacity”

of 225 pounds. Pugh read all of the warnings on the ladder

label and the ladder showed no visible signs of damage at the

time of purchase or at the time of use. After purchasing the

ladder in March of 2003, Pugh hung it on hooks in his garage

where it remained until July 10, 2003, when he used it for the

first time.

On July 10, 2003, Pugh placed the ladder on his living room

floor in order to install a skylight shade. At the time, Pugh

3
weighed 215 pounds and was carrying less than 10 pounds of tools

while using the ladder. Pugh went up and down the ladder twice

without incident. On Pugh’s third trip up the ladder, he fell

while standing on the ladder’s sixth step. Pugh has no memory

of the actual fall, but recalls later realizing that he was

lying on the ground. When Pugh realized that he had fallen, he

was dazed and disoriented and felt pain in his head, neck, and

shoulders. Pugh was taken to the emergency room and was

diagnosed with muscle strain and a concussion.

After Pugh’s fall, his ladder evidenced extensive

structural damage. The worst damage was located on each of the

side rails, between the first and second steps on the left rail

and between the second and third steps on the right rail. There

were also visible cracks around and through the rivets

connecting the first three steps to the side rails. After

Pugh’s ladder was thoroughly photographed and examined, experts

for both parties agreed upon destructive testing to permit more

complete examination. Upon microscopic examination at 1000x and

2000x power, Pugh’s experts discovered “micro-cracks” at

locations throughout the ladder, including at step seven, above

the step being used by Pugh when the accident occurred.

The primary issue at trial was the manner in which Pugh’s

accident occurred. Pugh’s theory was that his ladder had a

manufacturing defect consisting of microscopic cracks at the

4
ladder’s rivets and that, during normal use, such cracks

propagated into larger cracks causing catastrophic

failure/buckling that resulted in Pugh’s fall. In contrast,

LL’s theory was that the ladder was not defective and did not

fail, but that Pugh tipped the ladder during use and the

ladder’s post-accident severely damaged condition was caused

during the accident when Pugh’s body fell onto the ladder.

B.

Pugh filed the instant products liability action in North

Carolina state court against LL and Home Depot. The defendants

removed the action to the United States District Court for the

Middle District of North Carolina. Both defendants moved for

summary judgment, which was granted with respect to Home Depot

but denied with respect to LL. Prior to trial, LL moved to

exclude both of Pugh’s proposed expert witnesses.

On April 28, 2008, the day before trial, the district court

conducted a lengthy pre-trial motions hearing, and the majority

of the hearing was spent on LL’s motion to exclude Pugh’s

proposed experts: Dr. Ajit Kelkar (“Dr. Kelkar”) and Dr. William

Craft (“Dr. Craft”), professors of mechanical engineering at

North Carolina A&T State University. At the pre-trial hearing,

the court heard testimony from both Drs. Kelkar and Craft as

well as LL’s expert. LL conceded that Drs. Kelkar and Craft had

5
the education and expertise to testify on the subject at issue

but challenged the reliability of their opinions.

At the conclusion of the pre-trial hearing, the district

court denied LL’s motion to exclude Pugh’s experts. Although

Drs. Kelkar and Craft were permitted to testify, the court

granted a motion in limine filed by LL restricting Pugh’s

experts from testifying about testing performed on an “exemplar

ladder” with the same LL model number as the accident ladder.

The court excluded such testimony because the evidence

established that LL had sold two differently designed ladders

under this one model number. Because the accident ladder and

the exemplar ladder had a different design, comparison of the

specifications of one to the other was deemed to have no

relevance. 1

At trial, Dr. Kelkar testified at length during Pugh’s

case-in-chief regarding his theory of crack propagation leading

to the catastrophic structural failure of Pugh’s ladder. Dr.

Craft did not testify during Pugh’s case-in-chief but was

1
Pugh’s experts were unable to purchase a ladder with the
same LL model number as the accident ladder since it was
apparently no longer being sold in stores at the time of the
lawsuit. By happenstance, Dr. Kelkar located a ladder with the
same LL model number as the accident ladder at his Temple.
Pugh’s experts conducted testing on such ladder and discovered
that its rails were thicker than the accident ladder. However,
the variation in thickness was not indicative of a defect in the
accident ladder due to the variation in designs.

6
reserved as a rebuttal witness. LL objected to Pugh’s decision

to reserve Dr. Craft, but the district court overruled such

objection.

During LL’s presentation of its case, defense counsel

attempted to introduce evidence to establish the absence of end-

user complaints reporting “cracks” on LL ladders with the same

model number as the accident ladder. Pugh objected to such

proposed evidence on hearsay grounds and, following a bench

conference, the district court excluded such testimony based on

its unreliability.

At the conclusion of the case, the jury returned a verdict

in Pugh’s favor. LL filed the instant appeal challenging: (1)

the denial of LL’s motion to exclude the testimony of Drs.

Kelkar and Craft; (2) the exclusion of testimony regarding the

absence of end-user complaints reporting “cracking” of LL

ladders with the same model number as Pugh’s ladder; and (3) the

ruling permitting Dr. Craft to be reserved as a rebuttal

witness. LL argues that the cumulative effect of the above

stated errors denied LL a fair trial.

II.

District courts have broad latitude in determining the

admissibility of evidence, and evidentiary rulings, including

Daubert rulings, will not be overturned absent an abuse of

7
discretion. Bryte ex rel. Bryte v. American Household, Inc.,

429 F.3d 469, 475 (4th Cir. 2005). “A district court abuses its

discretion when it acts arbitrarily or irrationally, fails to

consider judicially recognized factors constraining its exercise

of discretion, relies on erroneous factual or legal premises, or

commits an error of law.” United States v. Delfino, 510 F.3d

468, 470 (4th Cir. 2007). However, even if the district court

abuses its discretion, such evidentiary ruling “is reversible

only if it affects a party’s substantial rights.” Schultz v.

Capital Int’l Sec., Inc., 466 F.3d 298, 310 (4th Cir. 2006); see

Fed. R. Evid. 103(a).

A.

Federal Rule of Evidence (FRE) 702 acts as the guidepost

for the admissibility of expert testimony. United States v.

Wilson, 484 F.3d 267, 274-75 (4th Cir. 2007). The rule

provides:

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, if (1)
the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.

Fed. R. Evid. 702. In considering the admissibility of expert

testimony, a district court acts as a gatekeeper and must assess

8
whether an expert’s proffered testimony is both sufficiently

reliable and relevant. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141 (1999); United States v. Moreland, 437 F.3d 424, 431

(4th Cir. 2006). The relevance and reliability of expert

testimony is examined through consideration of, among other

things: “(1) whether the particular scientific theory ‘can be

(and has been) tested’; (2) whether the theory ‘has been

subjected to peer review and publication’; (3) the ‘known or

potential rate of error’; (4) the ‘existence and maintenance of

standards controlling the technique's operation’; and (5)

whether the technique has achieved ‘general acceptance’ in the

relevant scientific or expert community.” United States v.

Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (quoting Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993)).

Although reliability of an expert’s principles and methods,

as well as the application of the facts to such methods, must be

examined by the district court, the court “need not determine

that the proffered expert testimony is irrefutable or certainly

correct,” since, like all forms of testimony, “expert testimony

is subject to testing by ‘[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on

the burden of proof.’” Moreland, 437 F.3d at 431 (4th Cir.

2006) (quoting Daubert, 509 U.S. at 596) (alteration in

original); see also Maryland Casualty Co. v. Therm-O-Disc.,

9
Inc., 137 F.3d 780, 784 (4th Cir. 1998) (noting that “[a]ll

Daubert demands is that the trial judge make a ‘preliminary

assessment’” of whether the proffered testimony is both reliable

and helpful). Neither FRE 702 nor case law establish a

mechanistic test for determining the reliability of an expert’s

proffered testimony; on the contrary, “‘the test of reliability

is flexible’ and ‘the law grants a district court the same broad

latitude when it decides how to determine reliability as it

enjoys in respect to its ultimate reliability determination.’”

Wilson, 484 F.3d at 274 (quoting Kumho Tire Co., 526 U.S. at

141-42) (second emphasis added). 2 Although the district court is

afforded broad latitude in performing such flexible inquiry, the

focus of the inquiry should be on the “‘principles and

methodology’ employed by the expert, not on the conclusions

reached.” Moreland, 437 F.3d at 431 (quoting Daubert, 509 U.S.

at 594-95) (emphasis added).

2
As recognized in Wilson, a district court’s reliability
determination “does not exist in a vacuum,” and there are
“meaningful differences in how reliability must be examined with
respect to expert testimony that is primarily experiential in
nature as opposed to scientific.” Wilson, 484 F.3d at 274.
Here, it appears that some of Pugh’s experts’ testimony was
based on post-accident testing and some was “experiential in
nature.” For example, Dr. Kelkar testified that, based on his
years of experience working with NASA, numerous branches of the
military, and several private companies, he knows that punching
a hole in any metal in order to install a rivet weakens the
metal and that crack propagation from rivets in metals is a
widely accepted phenomenon.

10
 Here, LL argues both that the district court failed to

properly perform its role as gatekeeper and that the testimony

of Pugh’s experts was not based on sufficient facts or data.

The latter of these arguments focuses on the contention that

Pugh’s experts failed to apply their “principles and methods

reliably to the facts of the case.” Fed. R. Evid. 702(3).

1.

The Court first considers LL’s contention that the district

court did not properly perform its role as gatekeeper because

the court purportedly shifted the expert admissibility burden to

LL. We begin consideration of this argument by noting that the

proponent of expert testimony does not have the burden to

“prove” anything, but must “come forward with evidence from

which the court can determine that the proffered testimony is

properly admissible.” Maryland Casualty, 137 F.3d at 784.

LL’s burden argument ignores the context of its challenge

to Pugh’s experts and is only supported by the record if

excerpts from the lengthy Daubert hearing are viewed in

isolation. LL began its argument at the Daubert hearing by

acknowledging the “many articulations” of the Daubert standard

and clarifying that the burden to establish the admissibility of

expert testimony was on Pugh. LL then argued that expert

testimony should not be admitted if it is based on “assumptions

or beliefs, if the witness has failed to consider other

11
explanations, or if the witness’s theory is easily falsifiable

with a single counter example.” (J.A. 452.) LL stated that the

reason the testimony should be excluded in this case is that

“[w]e have a failure to test. We have opinions based on

assumptions. We have failure to consider other explanations,

and we have an easily falsifiable theory . . . .” (Id.) LL’s

subsequent argument did not focus on attacking the “principles

and methodology” employed by Pugh’s experts, but instead focused

on why their conclusions were incorrect, i.e. “easily

falsifiable.”

During LL’s counsel’s summary of why principles of physics

would disprove Pugh’s experts’ theory, the court interjected,

stating: “You’re saying it’s physically impossible [for the

buckling] to happen like [Pugh’s experts opine]?” (Id. at 457.)

Counsel responded: “It is. Jumping ahead, Your Honor, it didn’t

happen like that.” (Id.) After the court confirmed that LL’s

“impossibility” claim was being advanced in an effort to exclude

the testimony of Pugh’s experts, the following exchange

occurred:

LL Counsel: Your Honor, I’m careful to point out, that
the burden on the Plaintiff is to prove by a
preponderance of the evidence, that the
testimony is reliable and that the testimony
has employed reliable scientific methodology.
Court: They don’t have to prove the opinion is
reliable.
LL Counsel: They have to prove the reliability of the
method and contrary wise it’s not the

12
 Defendant’s burden to prove that the opinion
is impossible.
Court: Well, if you want to exclude it, it seems to
me, that you need to show me scientifically,
why that is physically impossible or highly
unlikely, because if they applied proper
methodology, and their opinion is wrong,
isn’t that for the finder of fact to
determine?

(J.A. 457-58) (emphasis added). LL highlights this statement by

the district court, among others, in an effort to establish that

the court improperly shifted the burden to LL and/or improperly

applied an “impossibility” standard.

After considering the Daubert hearing transcript in its

entirety, we find that LL fails to establish that the district

court erroneously shifted the burden of production to LL or

otherwise failed to exercise its role as gatekeeper. 3 Although

LL had referenced purported errors in Pugh’s experts’

methodology prior to the above quoted exchange, LL’s argument

had focused almost entirely on the contention that Pugh’s

3
Although LL’s claims of error before this court focus
solely on the Daubert hearing, we recognize that the district
court had additional evidence before it supporting the
admissibility of Pugh’s experts’ testimony, such as a joint
affidavit submitted by Drs. Kelkar and Craft with numerous
exhibits including engineering formulas, published articles, and
“expert reports” detailing the testing Drs. Kelkar and Craft
performed in this case. The fact that the district court had
such materials prior to the Daubert hearing further explains the
manner in which the hearing was conducted, i.e. LL was given an
opportunity to attack Pugh’s prior assertions in support of the
admissibility of his experts.

13
experts’ conclusions were readily falsifiable. The district

court’s statement regarding impossibility/unlikelihood, taken in

context, appears to be a response to such repeated attacks on

Pugh’s experts’ conclusions. Furthermore, a careful examination

of the statement made by the district court regarding the

correctness of an expert’s conclusions reveals that the court

was following this Court’s instruction to focus on the experts’

“principles and methodology” and not on the conclusions reached.

Moreland, 437 F.3d at 431. 4 Tellingly, the court’s statement was

limited to a situation where a challenged expert had applied

“proper methodology.”

Further supporting the above finding, prior to the lunch

recess from the lengthy Daubert hearing, the district court

attempted to redirect LL’s focus for the remainder of the

hearing, stating that counsel was continuing to argue that it

4
The Supreme Court has recognized that “conclusions and
methodology are not entirely distinct from one another” and that
“nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the
expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Such holding, however, does not shift the focus of the Daubert
test to experts’ conclusions, but merely clarifies that the
district court’s broad discretion includes the discretion to
find that there is “simply too great an analytical gap between
the data and the opinion proffered.” Id. Our recent decision
in Moreland, decided after Joiner and the 2000 amendments to
Rule 702, reiterates the fact that the proper focus remains on
the expert’s “principles and methodologies.” Moreland, 437 F.3d
at 431.

14
was “scientifically impossible” for the ladder to fail in the

manner claimed by Pugh’s experts and that the focus should be on

the validity of the scientific methods utilized and not on the

weight of such testimony — which is a question for the jury.

(J.A. 552-53.) After the lunch recess, the court again repeated

its concern, stating:

But now share with me, if you would, [counsel], where
you are with regard to scientific methodology. It
sounds to me like what you are doing is cross-
examination with regard to the weight of [Pugh’s
expert’s] opinion, and not the validity of his opinion
and, you know, this is not a free deposition or free
opportunity for cross-examination.

(J.A. 592-93.) After a brief exchange that concluded with LL’s

counsel’s offer to end his questioning the court responded: “If

you have other questions that go to the methodology, you

certainly should ask them . . . .” (Id. at 594.)

We therefore find that the district court did not impose an

improper burden on LL nor otherwise abuse its discretion in the

manner in which it conducted the Daubert hearing. See Maryland

Casualty, 137 F.3d at 784 (declining to reverse the district

court’s Daubert ruling notwithstanding the court’s incorrect

statement regarding the burden, made at the beginning of the

Daubert hearing, because “the general process contemplated by

Daubert took place in the hearing and . . . [the plaintiff]

squarely bore the burden of production”).

15
 2.

LL next argues that even if the district court

appropriately performed its role as gatekeeper, Pugh’s experts

should not have been permitted to testify because they failed to

apply their “principles and methods reliably to the facts of the

case.” Fed. R. Evid. 702(3). We acknowledge that such

contention presents a close question. However, on such a close

discretionary ruling we may not substitute our judgment for that

of the district court. United States v. MacDonald, 688 F.2d

224, 228 (4th Cir. 1982).

Although Pugh’s experts’ initial conclusion, that the

ladder failed structurally, was based solely on a visual

inspection of the post-accident ladder, such experts thereafter

performed several tests to support their initial assessment.

These tests included: (1) testing to rule out a design defect; 5

(2) “non-destructive” testing, including labeling, measuring,

and photographing the accident ladder; 6 (3) destructive testing,

whereby samples were cut from the ladder’s side rails and

5
Pugh’s experts freely admitted that the accident ladder’s
design was more than sufficient to support its rated 225 pounds.
6
Visible cracks were apparent on the edge of the rivets and
were fully propagated through the flange of the side rails in
the area where the ladder was deformed and Pugh’s experts
testified that the paths of such cracks were consistent with
structural failure.

16
submitted for testing to a third-party facility; (4)

fractographic examination of the side rails and rivets using a

high magnification optical microscope and a scanning electron

microscope; 7 (5) using “standard engineering formulas” to

determine that fully propagated cracks would have resulted in a

substantial reduction of the “moment of inertia” of the side

rails, which would in turn decrease the rails’ load capacity;

and (6) testing C-shaped sections of aluminum designed to mimic

the accident ladder’s side rails whereby mock rivet holes were

drilled, cracks simulated, and the reduced load capacity tested

- such testing was videotaped which permitted peer review. 8

7
Dr. Kelkar represented that this was a standard
engineering technique to identify pre-failure fracture
mechanisms, and Dr. Kelkar’s qualification in the field of
fracture mechanics went unchallenged by LL. (J.A. 364-65.) In
1985 Dr. Kelkar obtained his Ph.D. devoted entirely to fracture
mechanics, particularly in the area of failures due to fractures
that can be caused by impact. (Id. at 508.) Dr. Kelkar has
worked for NASA, the Air Force, Army, and Navy, and authored
over 200 publications. He has also worked on several rivet
studies and is an engineer for a school bus company for which he
helped develop a new design aimed at eliminating cracks in
manufacturing due to the riveting process. (Id. 507-10.)
8
According to engineering publications cited by Pugh’s
experts, (J.A. 364), a hole in a structure acts as a “stress
riser” and cracks initiate at points of high stress
concentration, such as rivets. Pugh’s experts’ testing revealed
that micro-cracks existed around the rivet holes on the upper
side rails of the accident ladder above the step where a load
had been placed on the ladder by Pugh. Pugh’s experts contended
that cracks at this location supported their hypothesis that the
cracks pre-dated the accident since weight applied below such
step would not cause such cracks. LL’s counsel failed to impugn
(Continued)
17
Based both on their experience and the testing outlined above,

Pugh’s experts determined that their structural failure theory

was scientifically supported by the facts of this case and the

most likely cause of the accident.

In addition to testing and analysis supporting their crack

propagation theory, Pugh’s experts performed testing and

analysis to disprove the opposing theory – impact damage. Based

on their experience, Pugh’s experts testified at the Daubert

hearing that a blunt object, like a human’s upper torso, falling

onto an aluminum ladder could not create the buckling damage

readily observable on the accident ladder. See Kumho Tire Co.,

526 U.S. at 156 (“[N]o one denies that an expert might draw a

conclusion from a set of observations based on extensive and

specialized experience.”). To prove such conclusion through

testing, Pugh’s experts conducted impact testing by dropping a

mass weighing 240 pounds, roughly in the human form, on a

similar 6 foot aluminum ladder. Such impact testing, which was

videotaped and thus subject to peer review, purportedly

established that the damage apparent on the accident ladder

could not have been caused by a person falling onto the ladder.

Cf. Oglesby v. General Motors Corp., 190 F.3d 244, 250 (4th Cir.

Pugh’s expert’s reliance on such cited sources at the Daubert
hearing.

18
1999) (recognizing deficiencies in the plaintiff’s expert’s

testing/analysis including the expert’s failure to “eliminate

other equally plausible causes” for the failure of the component

in question).

Notwithstanding the tests outlined above, LL highlights

several alleged deficiencies with Pugh’s experts’ conclusions,

including the experts’ failure to investigate the manufacturing

process, failure to analyze the likelihood that micro-cracks

would propagate based on aluminum’s physical properties, failure

to perform computer modeling, failure to definitively establish

whether the micro-cracks pre-dated the accident, and failure to

advance direct proof that micro-cracks occurred during

manufacturing. 9 However, in light of the testing that was

performed to both support Pugh’s hypothesis and discredit LL’s

9
Pugh’s experts consistently reported that due to the
accident ladder’s severely damaged state it was impossible to
conclusively determine the precise manner in which it failed,
but that the testing performed to support their theory and rule
out LL’s theory established that their theory was the most
probable scientific explanation. We are unpersuaded by LL’s
contention that Dr. Craft admitted that tests could have been
performed to establish whether any cracks pre-dated the
accident. Dr. Kelkar stated that “for this particular ladder”
he could not “metallurgically or microscopically” put a date on
the cracks. (J.A. 546.) Dr. Craft’s later statement, that “it
might be possible under certain conditions” to date a crack
based on chemical or dirt infiltration, merely acknowledges the
possibility of such testing under hypothetical facts and does
not appear to be a concession that such tests were viable on
these facts. (J.A. 596-97.)

19
hypothesis, and the lack of evidence suggesting that any of such

testing was unreliable, the alleged failure of Pugh’s experts to

perform additional testing goes more to the weight of the expert

testimony than to its Daubert admissibility. See Westberry v.

Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999) (indicating

that alternative causes for a medical diagnosis advanced by a

defendant go to the weight of a medical expert’s opinion, not

its admissibility, as long as the plaintiff’s expert took

“serious account of other potential causes” in formulating a

diagnosis); Schmude v. Tricam Indus., 556 F.3d 624, 625-26 (7th

Cir. 2009) (rejecting the defendant’s claim of error regarding

the plaintiff’s expert’s failure to perform testing that

replicated a ladder’s collapse and noting that the defendant

failed to establish what kind of test would prove whether the

hypothesized cause for the collapse was correct).

LL therefore fails to establish that the testing outlined

above, along with “experiential” testimony offered by Drs.

Kelkar and Craft, was not sufficiently relevant, reliable, and

based on the facts of this case. 10 Accordingly, we decline to

disturb the district court’s determination, made after a lengthy

10
In explaining its Daubert ruling, the district court
expressly referenced Pugh’s experts’ experiential testimony,
their testing in support of Pugh’s theory, and their explanation
as to why impact damage was not supported by the facts of this
case. (J.A. 610-11.)

20
Daubert hearing, that Pugh’s experts were permitted to present

their opinions to the jury where the weight of such opinions

would be tested though “‘[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on

the burden of proof.’” Moreland, 437 F.3d at 431 (quoting

Daubert, 509 U.S. at 596).

B.

LL next challenges the district court’s ruling excluding

testimony regarding the absence of end-user complaints reporting

“cracking” of LL ladders with the same model number as Pugh’s

ladder. At trial, a LL safety engineer testified that LL had a

system in place for documenting and tracking incidents/accidents

reported to LL by end users. After establishing that LL

recorded all customer complaints and criticisms about its

ladders, the following exchange occurred:

LL Counsel: Now, before Mr. Pugh came along with this
particular claim in the 85,000 ladders that
you sold of this model, did anyone make any
kind of claim that the ladder they purchased
had cracked and was just unable to hold a
user’s weight?
Pugh Counsel: Objection.
Court: In that fashion, yes.
LL Counsel: Did anybody claim that their L2211-08S had
cracks in it?
Pugh Counsel: Objection.
Court: Approach the bench.

(J.A. 1418) (emphasis added).

21
 During the bench conference, Pugh immediately indicated

that his objection was based on hearsay. LL responded by citing

the hearsay exception set forth in FRE 803(7). Such rule states

that the following evidence is not excluded by the hearsay rule:

Evidence that a matter is not included in the
memoranda reports, records, or data compilations, in
any form, kept in accordance with the provisions of
[the business records exception set forth in]
paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a
kind of which a memorandum, report, record, or data
compilation was regularly made and preserved, unless
the sources of information or other circumstances
indicate lack of trustworthiness.

Fed. R. Evid. 803(7).

After hearing from both parties, the district court

sustained Pugh’s objection to the specific “cracking” question

posed, not because LL’s business records were deemed to fall

outside of FRE 803, but because the court found that the

proffered testimony had “no reliability” based on the phrasing

of the question asked to the witness. (J.A. 1439.) The

challenged question asked whether LL received customer

complaints about LL ladders that “had cracked.” The court

concluded that a lay person would simply not identify a

structural failure, resulting in a post-accident ladder in a

similar condition to Pugh’s ladder, as a “cracking” failure.

Applying the deferential abuse of discretion standard, we

again conclude that overturning the district court’s ruling

22
would invade the broad discretion afforded the district court

and require this court to substitute its judgment for that of

the district judge. FRE 803(7) permits the introduction of the

absence of a business record to prove the nonoccurrence of an

event “unless the sources of information or other circumstances

indicate lack of trustworthiness.” Fed. R. Evid. 803(7)

(emphasis added). While the district court used the word

“reliability” and not “trustworthiness,” the court’s rationale

for excluding the testimony was not an abuse of discretion as

the district court provided adequate justification for finding

that “other circumstances” rendered the proffered testimony

untrustworthy.

Alternatively, even if we found that “unreliability” was an

insufficient basis to exclude testimony reporting the lack of

“cracking” complaints, a separate ruling made by the district

court provides an independent basis for the exclusion of such

testimony. 11 After the district court made the reliability

ruling discussed above, the court excluded LL’s proffered

testimony regarding six customer complaints it received that

were unrelated to “cracking.” The court excluded such testimony

regarding these “non-cracking” complaints because LL failed to

11
Such independent basis for excluding testimony discussing
the lack of “cracking” complaints is unchallenged on appeal.

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produce/introduce as a trial exhibit the business records

documenting such complaints. The court explained that such

testimony would not be permitted in the absence of the documents

because opposing counsel cannot counter testimony regarding the

contents of documents he has never seen. Although the district

court’s analysis supporting such ruling focused on the exclusion

of the six complaints LL actually received, the ruling is broad

enough to act as an alternative justification to bar testimony

about the cracking complaints that were purportedly not

received. To clarify, if the failure to produce/introduce the

pertinent business records barred testimony about what the

business records actually stated, it surely barred testimony

about what the same records did not state since the only way to

prove the negative—no cracking complaints—is to consider the

contents of the complaints actually received. Accordingly, LL’s

failure to introduce its business records provides an

independent justification for excluding testimony discussing the

lack of “cracking” complaints.

C.

LL’s third evidentiary challenge contends that the district

court erred by permitting Pugh’s second expert, Dr. Craft, to be

reserved as a rebuttal witness. FRE 611(a) states that “[t]he

court shall exercise reasonable control over the mode and order

of interrogating witnesses and presenting evidence so as to (1)

24
make the interrogation and presentation effective for the

ascertainment of the truth, (2) avoid needless consumption of

time, and (3) protect witnesses from harassment or undue

embarrassment.” Fed. R. Evid. 611(a). Notwithstanding the

court’s discretion regarding witness order, “[o]rdinarily,

rebuttal evidence may be introduced only to counter new facts

presented in the defendant’s case in chief.” Allen v. Prince

George's County, Md., 737 F.2d 1299, 1305 (4th Cir. 1984).

Here, prior to resting, Pugh’s counsel informed the court

that Pugh intended to reserve Dr. Craft for rebuttal in order to

speed along the presentation of the evidence. No objection to

such proposal was initially made by LL. (J.A. 1083.)

Thereafter, LL objected to the reservation of Dr. Craft,

contending that a rebuttal witness should only be allowed to

testify as to “things that are surprise or unexpected . . . .”

(Id. at 1155-56.) The district court made no immediate ruling

on such objection, but later overruled the objection, indicating

that rebuttal would not be limited to surprise evidence. (Id.

at 1302.)

Prior to Dr. Craft’s testimony, the district court again

allowed LL to argue against the reservation of Dr. Craft. The

court, having reviewed the case law cited by LL, reaffirmed its

earlier ruling and indicated that rebuttal testimony was

appropriate as long as it “clarifies, rebuts or explains or

25
disproves or goes to disproving or explaining [or] clarifying

the testimony of [LL’s witnesses].” (Id. at 1399.) The court

rejected LL’s contention that Dr. Kelkar already fully

challenged LL’s expert’s position during Pugh’s case-in-chief,

indicating that a plaintiff’s expert “can only anticipate so

much of what the defense evidence is going to be . . . .” (Id.

at 1399-400.)

After reviewing the trial transcript, we find that LL fails

to establish that the district court abused its broad discretion

in exercising control over the “mode and order of interrogating

witnesses.” Fed. R. Evid. 611(a). LL fails to establish that

precedent requires a district court to limit rebuttal to

surprise evidence – the fact that we have previously held it

within a district court’s discretion to limit rebuttal to

surprise evidence does not equate with a requirement that

rebuttal must always be limited in such manner. See Hospital

Bldg. Co. v. Trustees of Rex Hosp., 791 F.2d 288, 294 (4th Cir.

1986) (finding no abuse of discretion under the circumstances

where the district court limited rebuttal to surprise evidence

in light of the fact that plaintiff took ten weeks to present

its case-in-chief). The Court’s decision in Allen, relied on by

LL, is likewise distinguishable from the instant case since

Allen involved the rejection of the plaintiff’s attempt to

introduce new data on rebuttal in support of a new trial

26
strategy not pursued as part of the plaintiff’s case-in-chief.

Allen, 737 F.2d at 1305. On the facts before this Court, the

district court did not abuse its discretion by declining to

limit rebuttal evidence to a response to LL’s “surprise”

testimony, nor did the district court abuse its discretion in

permitting Dr. Craft to testify for the first time on rebuttal. 12

III.

We conclude that the district court did not abuse its

discretion with respect to any of the challenged evidentiary

rulings. Finding no abuse of discretion, we reject LL’s

12
LL also appears to argue, primarily in its reply brief,
that Dr. Craft’s actual testimony was improper because it was
non-responsive to LL’s evidence and was merely rehashing what
should have been previously presented. However, such objection
was not preserved below. In rejecting LL’s preemptive challenge
to the reservation of Dr. Craft, the district court expressly
invited LL’s counsel to object during Dr. Craft’s testimony if
Dr. Craft started to “rehash what could have been said earlier .
. . .” (Id. at 1399.) A review of Dr. Craft’s testimony
reveals that LL’s counsel did not once object to the scope of
the inquiry during Dr. Craft’s testimony. (Id. at 1525-61.) We
therefore do not find any error regarding the “responsiveness”
of the testimony actually elicited as the district court was
never presented an objection once the scope of Dr. Craft’s
testimony became clear. See United States v. Smith, 452 F.3d
323, 330 (4th Cir. 2006) (recognizing that although motions in
limine often suffice to preserve objections for appeal, such is
not the case when “the exact nature” of the error complained of
cannot be known at the time the motion is decided); United
States v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (finding
a motion in limine insufficient to preserve an objection when
the motion was not based on the “precise issue” later raised).

27
argument regarding the “cumulative effect” of the alleged

errors. Accordingly, we affirm.

AFFIRMED

28