UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1040
BARRY ZUCKERMAN; ARLENE ZUCKERMAN,
Plaintiffs - Appellants,
v.
WAL-MART STORES EAST, L.P.; WAL-MART STORES, INC.;
LOUISVILLE LADDER, INC,
Defendants - Appellees,
and
DAVIDSON MANUFACTURING CORP LLC; DAVIDSON LADDERS NEVADA
INC,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:12-cv-02463-SB)
Submitted: June 22, 2015 Decided: July 6, 2015
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathleen C. Barnes, BARNES LAW FIRM, LLC, Hampton, South
Carolina, for Appellants. Mark S. Barrow, J. Eric Cavanaugh,
William R. Calhoun, Jr., SWEENY, WINGATE & BARROW, P.A.,
Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This products liability action arises from Barry
Zuckerman’s fall from a ladder. Barry and Arlene Zuckerman
appeal the district court’s orders excluding their expert
witness, Dr. Kelkar; denying reconsideration of that order; and
granting summary judgment to Wal-Mart Stores East, L.P., Wal-
Mart Stores, Inc., and Louisville Ladder, Inc. Finding no
error, we affirm.
We review a district court’s order excluding or admitting
evidence for an abuse of discretion. Belk, Inc. v. Meyer Corp.,
U.S., 679 F.3d 146, 161 (4th Cir. 2012). The admission of
expert testimony is governed by Fed. R. Evid. 702, which
provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if: (a) the
expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
Expert testimony rooted in “subjective belief or unsupported
speculation” does not suffice. Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 590 (1993). We conclude that the district
court did not abuse its discretion in excluding Dr. Kelkar’s
testimony, as he failed to provide sufficient facts or data upon
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which the district court could conclude that his opinion was
based on reliable principles and methods. Nor did the court
abuse its discretion in denying the motion to reconsider this
ruling.
Next, we review de novo a district court’s order granting
summary judgment. Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district court ‘shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Id. at 568 (quoting
Fed. R. Civ. P. 56(a)). In determining whether a genuine issue
of material fact exists, we “view the facts and all justifiable
inferences arising therefrom in the light most favorable to . .
. the nonmoving party.” Id. at 565 n.1 (internal quotation
marks omitted). However, “[c]onclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the nonmoving party’s] case.” Thompson
v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(internal quotation marks omitted).
Because the Zuckermans’ injuries occurred in South Carolina
and removal to the district court was based on diversity of
citizenship, this court applies South Carolina substantive law.
Oglesby v. Gen. Motors Corp., 190 F.3d 244, 251 (4th Cir. 1999).
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To establish a products liability claim under South Carolina
law, a plaintiff must show:
(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.
Sauls v. Wyeth Pharm., Inc., 846 F. Supp. 2d 499, 502 (D.S.C.
2012). While a plaintiff may prove a products liability claim
through circumstantial evidence, “one cannot draw an inference
of a defect from the mere fact a product failed.” Graves v. CAS
Med. Sys., Inc., 735 S.E.2d 650, 658 (S.C. 2012). Without
expert testimony to show the cause of the ladder’s failure, all
that is left is the unsupported inference that the ladder failed
because it was defective. This is insufficient under South
Carolina law. Accordingly, we affirm the district court’s order
granting summary judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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