John Cady v. Ride-Away Handicap Equipment

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:12-cv-02667-RWT Copies to all parties and the district court/agency. [1000119173].. [16-1183]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1183

JOHN T. CADY,
Plaintiff – Appellant,
v.
RIDE-AWAY HANDICAP EQUIPMENT
MOBILITY CONTROLS, LLC,

CORPORATION;

ELECTRONIC

Defendants – Appellees,
v.
JOHN H. CADY,
Third Party Defendant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:12-cv-02667-RWT)

Argued: March 22, 2017

Decided: July 17, 2017

Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by unpublished opinion. Senior Judge Davis wrote the opinion, in which Judge
King joined. Judge Diaz wrote an opinion concurring in the judgment.

Matthew Jacob Chalker, Annapolis, Maryland, for Appellant. Saamia H. Dasti,
WARANCH & BROWN, LLC, Lutherville, Maryland; Brian Thomas Stapleton,
GOLDBERG SEGALLA, LLP, White Plains, New York, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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DAVIS, Senior Circuit Judge:
This appeal arises from an accident involving Plaintiff-Appellant John T. Cady’s
vehicle, a 2007 Buick Terraza van that, for the use of his quadriplegic son, had been
fitted with an AEVIT (“Advanced Electronic Vehicle Interface Technology”) driving
system. Cady, the driver and sole occupant of the van at the time of the accident,
suffered severe injuries. He filed the instant lawsuit against Electronic Mobility Controls,
LLC (“EMC”), the designer and manufacturer of the AEVIT system, as well as RideAway Handicap Equipment Corporation (“Ride-Away”), the entity responsible for
installing the system in his van (together, “Defendants”).
The district court excluded the testimony of Cady’s engineering expert and
ultimately entered judgment in favor of Defendants. On appeal, Cady argues the court
erred when it precluded his expert and barred various claims based on defenses of
contributory negligence, assumption of risk, product misuse, and failure to heed
warnings. For the reasons that follow, we affirm.
I.
A.
We begin by describing the relevant components of the AEVIT drive-by-wire
system. In AEVIT-enhanced vehicles, the driver will often manipulate steering and
gas/brake inputs through orthotic devices, such as joysticks. The AEVIT system converts
the driver’s movements into digital signals that are sent to corresponding modules and
mounted electromechanical servomotors (“servos”), which then trigger the vehicle’s
existing driving mechanisms.
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Put simply, when the driver uses the gas/brake input to call for acceleration,
the gas/brake servo responds and moves the gas pedal. When the driver
uses the steering input to turn the van, the steering servo rotates the steering
column. When the driver uses the gas/brake input to call for brake, the
gas/brake servo depresses the brake.
J.A. 874.
An L-shaped brake extension pad is attached to the brake pedal. The gas/brake
servo is attached to a drive arm mounted to a spool, and a white plastic roller on the drive
arm acts as the contact point between the servo and the brake pedal’s extension. As the
gas/brake servo rotates in the brake direction, the drive arm rolls counter-clockwise
against the brake pedal and depresses it downward, thereby applying the brakes. The
servo is positioned such that the roller arm is centered over the “tall” segment of the Lshaped extension pad.
Non-disabled drivers, such as Plaintiff Cady, can operate an AEVIT-enhanced
vehicle with conventional acceleration, braking, and steering by converting the vehicle
into its original equipment manufacturer (“OEM”) mode. To do so, the driver must
properly disengage and reengage certain pins in the Engage Lever. 1 If a driver attempts

1

The manual explains the process as follows:

Step 4:

Step 5:

The engage lever has two pins. The larger is the Safety Detent
Pin and can be completely removed. The smaller pin is the
Indicator Pin which is spring-loaded and captive. Reach down
and pull the Safety Detent Pin out of the Engage Lever.
Apply a very small amount of pressure to the engage knob
and [p]ull out the Indicator Pin about a [one-fourth inch]. The
knob is spring loaded, so you should . . . feel some resistance.
Continue to push in the engage knob until you feel the
Indicator [P]in lock in place.
(Continued)
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to use the steering wheel in the conventional manner while the vehicle is operating in
AEVIT mode, the steering wheel may be difficult to move. In contrast, the vehicle’s
original brake and gas pedals function in the usual manner even when the AEVIT mode
is engaged.
The AEVIT system is equipped with a data logger that digitally records the input
devices’ movements, the servomotors’ movements, and the signal transmissions received
or sent by the drive modules. The system is also distributed with an owner’s manual,
which contains various warnings regarding the vehicle’s operation. The warnings include
instructions that “AEVIT is intended for use only by persons professionally trained in
[its] function and operation,” that persons without proper training should not operate the
vehicle or the AEVIT system, and that persons should not operate the vehicle “if th[e]
Safety Detent Pin is not installed.” J.A. 1147, 1150, 1152, 1153. Additional warnings
are printed on AEVIT component parts, including an instruction printed directly on the
gas/brake input to “not operate [this equipment] without proper training.” J.A. 935.
Several warning stickers were also placed throughout the interior of Cady’s van; one such
sticker, placed beneath the steering wheel, stated: “DO NOT OPERATE THIS VEHICLE
WITHOUT THE SAFETY PIN INSTALLED.” J.A. 1166.

Step 6:

Replace the Safety Detent [P]in in the Engage Lever. Do
NOT operate the vehicle without the Safety Detent Pin
installed.

J.A. 144.
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B.
Fred Hermann, a Ride-Away employee and an EMC-certified technician, installed
the AEVIT system in Cady’s 2007 Terraza van. After inspecting, reviewing, and testdriving the modified van, Ride-Away sold it to Cady in August 2008.

Cady’s

quadriplegic son, John H. Cady (“Junior”), completed the necessary training to operate
the AEVIT system. Cady neither began nor completed any such training.
On January 7, 2010, Junior drove the van following unrelated repairs to the
vehicle’s doors and heating system. Upon running a few errands with the van, Junior
began to experience difficulties when accelerating. Junior parked the vehicle in the lot of
his family’s business and called Hermann to report the issue. Hermann suspected that the
accelerator cable had broken, and he offered to pick up Junior and the van. Junior
declined, and he then called his family for help.
Upon receiving Junior’s call, Cady, his wife, his son-in-law Jason Burghardt, and
Junior’s assistant drove together to the parking lot. Cady and Burghardt investigated the
van for approximately 20 minutes; they believed that the brake and steering input were
functional but that the gas input was no longer responsive. Cady then attempted to switch
the van from AEVIT mode to OEM mode by engaging the Safety Detent Pin. However,
after a few attempts, Cady was unable to properly engage the pin. Cady then decided to
drive the car in “mixed mode” by using the AEVIT hand controls for steering and
braking while using his foot on the gas pedal to accelerate in a conventional manner.
Cady did not review the Owner’s Manual or any other documentation accompanying the
AEVIT system before operating the van. He had never before driven a vehicle in “mixed
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mode” and had no training to operate the AEVIT system, but he test drove the van in the
parking lot before attempting to drive the van to his home.
Cady asserted he was driving down a hill when the van suddenly lost electrical
power with the engine still running. Cady was able to turn the steering wheel in only one
direction and with great difficulty. The van allegedly drove left, across two lanes of
oncoming traffic, before going off the road. Cady stated that although he had stepped on
the brake with his foot, the van failed to stop and collided into a tree. Cady suffered
numerous injuries as a result of the crash, including a shattered hip and pelvis. He was
required to undergo multiple surgeries and has incurred approximately $1 million in
medical expenses.
Following the crash, data was downloaded from the AEVIT and OEM data
recorders. The AEVIT data logger captures data in blocks, and AEVIT data block 5 —
created as the crash occurred — depicted approximately 74 seconds of data immediately
preceding Cady’s impact. Between seconds 62 to 67 of this data block, the van’s speed
fluctuated between 33 and 35 miles per hour (“mph”). After second 70, even though the
brakes were called for, the speed increased from 34 to 37 mph before slowing to 33 mph.
Impact occurred at second 74, when the van’s speed dropped to 0 mph.
C.
Cady alleged claims of strict products liability (Claim I), negligent design,
manufacture, and installation (Claim II), negligent failure to warn (Claim III), breach of
express warranty (Claim IV), breach of implied warranty of merchantability (Claim V),
breach of implied warranty of fitness for particular use (Claim VI), breach of contract
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(Claim VII), fraud (Claim VIII), fraudulent concealment (Claim IX), and negligent
misrepresentation (Claim X). Following the conclusion of discovery, the parties filed
several motions before the district court.

Defendants filed motions for summary

judgment as well as motions to exclude Cady’s engineering expert, Mark Ezra; Cady
similarly moved for partial summary judgment and to preclude Defendants’ experts. The
district court denied Cady’s motions and granted Defendants’ motions. With respect to
Cady’s individual claims, the court determined that, as a matter of law, the affirmative
defenses of contributory negligence and assumption of the risk defeated his negligence
claims (Claims II, III, and X), strict product liability claim (Claim I), and breach of
warranty claims (Claims IV, V, and VI). The court further determined that Cady’s
product misuse and failure to heed warnings also warranted summary judgment as to his
negligence and warranty claims. 2
Cady timely appealed, contending that the district court erred and abused its
discretion in its preclusion of his expert and its summary judgment determinations
regarding the affirmative defenses.
II.
A.
We observe, first, that the parties and the district court discussed the affirmative
defenses raised in the summary judgment motions before addressing the admissibility of
Cady’s expert. However, this analytical framework places the cart before the horse.
2

The court also dismissed Cady’s claims for breach of contract, fraud, and
punitive damages. The dismissal of these claims is not at issue in this appeal.
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Ezra’s expert testimony is the only evidence of causation that Cady proffers to support his
various claims and oppose summary judgment, and a plaintiff must produce probative
evidence of causation to successfully bring any of the claims currently at issue in this
appeal. 3 Pittway Corp. v. Collins, 973 A.2d 771, 786 (Md. 2009) (“[N]egligence is not
actionable unless it is a proximate cause of the harm alleged.” (citation omitted)); OwensIllinois, Inc. v. Armstrong, 604 A.2d 47, 52 (Md. 1992) (“Causation is a necessary
element of any strict liability action.”); Twombley v. Fuller Brush Co., 158 A.2d 110, 111
(Md. 1960) (“Proof of causation is, of course, necessary as a foundation for liability on
either [breach of warranty or negligence].”). 4 As Plaintiff’s counsel acknowledged at
oral argument, if Ezra’s testimony were properly deemed inadmissible, Cady would be
unable to satisfy his burden of proof and the entry of summary judgment would
necessarily be proper. See Pharmanetics, Inc. v. Aventis Pharm., Inc., 182 F. App’x 267,
274 (4th Cir. 2006); Free v. Bondo-Mar-Hyde Corp., 25 F. App’x 170, 172–73 (4th Cir.
2002).

3

Defendants assert that because Cady has not addressed the dismissal of his
breach of warranty claims, these claims are not at issue in this appeal. Appellees’ Br. 4.
We note that Cady has clearly challenged the district court’s findings regarding his
assumption of risk, failure to heed warnings, and product misuse, defenses that applied to
and barred his breach of warranty claims. See J.A. 2536-38, 2540. As we observe in
text, however, we need not reach the merits of these contested defenses. We will
therefore address Cady’s breach of warranty claims only to the extent necessary to
provide a thorough analysis of the dispositive evidentiary issue in this appeal.
4

It is undisputed that Maryland law governs all the claims at issue.
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A district court’s decision to exclude expert testimony is reviewed for abuse of
discretion. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001). For the
following reasons, we cannot conclude that the district court abused its discretion in
excluding Ezra’s testimony. Accordingly, the grant of summary judgment was proper.
B.
Admissibility of expert testimony is governed by Federal Rule of Evidence 702,
which provides that a witness may submit expert testimony 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.
Fed. R. Evid. 702. Accordingly, expert testimony is admissible under Rule 702 if it
(1) involves scientific, technical, or other specialized knowledge and (2) will assist the
trier of fact to understand or resolve a factual issue. Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 590–91 (1993). The proponent of the testimony must establish its
admissibility by a preponderance of the evidence, Cooper, 259 F.3d at 199, and the trial
judge is assigned “the task of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand,” Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141 (1999) (quoting Daubert, 509 U.S. at 597).
It is well-established that the Rule 702 inquiry is “flexible” and must be both “tied
to the facts of a particular case,” id. at 150 (internal quotation marks and citations
omitted), and “focus[ed] on the ‘principles and methodology’ employed by the expert[]
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[rather than] on the conclusions reached,” Westberry v. Gislaved Gummi AB, 178 F.3d
257, 261 (4th Cir. 1999) (citation omitted). The district judge “must have considerable
leeway in deciding in a particular case how to go about determining whether particular
expert testimony is reliable.” Kumho Tire Co., 526 U.S. at 152. We note that although
Rule 702 “was intended to liberalize the introduction of relevant expert evidence,” this
interest must be balanced with the understanding that “expert witnesses have the potential
to ‘be both powerful and quite misleading.’” Cooper, 259 F.3d at 199 (citation omitted).
Accordingly, where the expert opinion “has a greater potential to mislead than to
enlighten,” that evidence “should be excluded.” Westberry, 178 F.3d at 261 (citation
omitted).
Cady’s expert, Mark Ezra, is a professional engineer. He opined that the crash
was caused by a mechanical failure in the braking system; according to Ezra, defective
installation resulted in the brake roller migrating out of place when the van experienced
“normal minor chassis flex” and road load, or the force applied to the van by its
movements over different surfaces. See J.A. 372, 2163. Ezra’s testimony primarily
relied on two pieces of evidence: his inspections of the van and the logged AEVIT data.
During his first inspection of the van, he noted that the brake servo and attached brake
roller were “mispositioned relative to the EMC brake pedal extension plate” such that the
estimated width of contact between the two was between 1/16 and 1/8 of an inch, which
he deemed to be insufficiently narrow. J.A. 2155. During the second inspection, after
the van had been moved by a “front end loader equipped with long fork legs,” Ezra
observed that the brake roller had lost contact with the brake extension plate and was
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found underneath the OEM brake pedal. J.A. 2162–63. Ezra explained that if the brake
roller fell under the brake extension plate when a driver attempted to apply the OEM
brake with her foot, the roller would resist the brake and render futile any attempts to use
the brake pedal. Ezra asserted that block five of the AEVIT data supported this theory.
He noted that in the moments preceding the collision, the van’s speed increased from 34
to 37 mph even though the gas/brake controller had called for the brake. Ezra testified
that the above increase in speed could be explained only if the brake roller arm had fallen
underneath the brake pedal immediately before Cady attempted to brake.
On the Defendants’ motions, the district court excluded Ezra’s testimony.
Although it had “little doubt that Mr. Ezra, in general, has specialized knowledge” to
speak on this issue of causation, 5 the court concluded that Ezra “did not have sufficient
facts or data” to support his testimony and “did not produce an opinion that was the
product of reliable principles and methods.” J.A. 2543–44. On appeal, Cady contends
that Ezra’s opinions were “more than sufficient to satisfy the requirements of Federal
Rule of Evidence 702 and Daubert.” Appellant’s Br. 32. The issue before this Court,
however, is not whether we would in the first instance admit Ezra’s testimony; we are
limited to the question of whether the district court abused its discretion in excluding this
5

Defendants assert that “[a]s a threshold matter, and as the district court correctly
found, Mr. Ezra is not qualified to give expert testimony in this matter because he has no
experience with the specific system involved in this case.” Appellees’ Br. 41. This is a
mischaracterization of the district court’s findings. The court observed that Ezra’s lack of
experience with “the specific system involved in this case” is “of some note,” but it
clarified that this consideration did not disqualify Ezra’s testimony given his general
knowledge of drive-by-wire systems in motorcycles. J.A. 2543–44.
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expert opinion. Based on the record before us, we must answer this question in the
negative.
Certain omissions in Ezra’s testimony cast doubt on the reliability of his opinion.
Inspections of the van revealed the presence of white residue on the brake pad, which
resulted from the white brake roller moving along the steel extension pad. The residue
was approximately the same width as the roller, suggesting that the roller arm sufficiently
overlapped with the extension pad, had been properly installed, and functioned normally
during the two years that Cady owned the vehicle. A smaller amount of overlap over
time would have likely resulted in a narrower concentration of white residue. Notably,
Ezra did not take this residue into account in his report. Although he admitted seeing the
white marks during his inspections of the van, he acknowledged that he did not know
what caused the residue, and he did not measure or test the marks.
We also note that Ezra’s theory relies on the brake roller losing contact with the
brake plate and “dropp[ing] . . . under the brake extension bracket” in the moments
preceding the collision, see J.A. 2163, but his first post-collision inspection of the van
revealed that the roller overlapped with and rested above the brake extension plate. Even
if one ignored this inconsistency, Ezra’s theory relies on the premise that the first
observed mispositioning of the brake roller arm (namely, the minimal 1/8 to 1/16 inch
overlap with the brake plate from his first inspection) resulted from normal road load and
chassis flex and was not itself a product of the collision. To support this proposition,
Ezra measured the mid-body chassis rails underneath the van and determined that the
passenger compartment of the van had not been deformed or altered by the crash. J.A.
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1039. Defendants assert that this measurement is immaterial because the brake servo was
connected to component parts beyond the passenger compartment — it appears that the
brake servo bracket was mounted to the front frame rail inside the engine compartment,
which had been deformed on impact.

Evidence in the record suggests it was the

post-collision bending of this front frame rail that resulted in the brake servo’s
displacement. See, e.g., J.A. 1489–91, 1500–01, 1680. Ezra’s expert testimony does not
take these considerations into account, and Plaintiff offered no explanation or rebuttal in
his reply brief to Defendants’ contentions on this point.
Moreover, despite opining that the minimal force of a “very low road load” could
have successfully caused the roller arm to fall off and under the brake pedal, J.A. 377,
Ezra was unable to explain why the van experienced this migration in the moments
before the collision when it failed to experience any such movement in the preceding two
years of its operation. Ezra never tested or measured the amount of flex or road load that
an AEVIT-installed Terraza van would normally endure, nor did Ezra identify the nature
or extent of forces that would apply to the vehicle under particular sets of circumstances,
including the downhill slopes or road quality that the van likely experienced before the
crash. The district court certainly acted well within its discretion in factoring all of this
into its assessment of the reliability of the Plaintiff’s expert opinion evidence.
Nor did the district court abuse its discretion in finding that Ezra’s interpretation
of the AEVIT data was suspect. As Ezra testified, the speed increase noted above could
be explained by the brake roller arm losing contact with the brake extension pad.
However, the AEVIT data does not indicate the degree to which the brakes were called
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for during this time period, and Defendants correctly observe that many different factors,
including the downhill slope of the road, could have caused a speed increase even if the
brake pedal had been depressed. As we have outlined above, Ezra’s analysis does not
take into account the road conditions of the van’s trajectory preceding the crash, nor does
it contemplate or discredit any alternative causes for the crash. It is plausible that human
error, inspired by Cady’s lack of familiarity with the AEVIT system and his improper
“mixed-mode” use of the van, also resulted in ineffective braking — for example, one of
Defendants’ experts testified that Cady may have mistakenly used the AEVIT hand
control calling for acceleration at the same time he pushed the OEM brake pedal with his
foot. J.A. 1796–97. The district court could properly weigh heavily in its assessment the
fact that Ezra knew of Cady’s lack of AEVIT training and “mixed-mode” use of the van,
but did not consider and utterly failed to address this potential cause of the collision in
arriving at his opinion on proximate cause.
In sum, the district court reasonably concluded that various methodological flaws
and omissions collectively cast doubt on the reliability of Ezra’s opinion.

We are

therefore not left with a “definite and firm conviction that the court below committed a
clear error” or otherwise abused its discretion when excluding Ezra’s expert testimony.
Westberry, 178 F.3d at 261 (citation omitted). Indeed, this Court has repeatedly affirmed
the district court’s exclusion of expert testimony where, as here, flaws in the expert’s
methodology or the expert’s failure to adequately address alternative theories undermined
the reliability of the opinion. See, e.g., Bryte ex rel. Bryte v. Am. Household, Inc., 429
F.3d 469, 477 (4th Cir. 2005); Higginbotham v. KCS Int’l, Inc., 85 F. App’x 911, 914–16
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(4th Cir. 2004); Phelan v. Synthes, 35 F. App’x 102, 107–08 (4th Cir. 2002); Cooper, 259
F.3d at 202–03; Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250–51 (4th Cir. 1999).
Cady asserts that the district court improperly excluded Ezra’s testimony based on
“the conclusions he generated, not on the principles and methodology he employed in
formulating his opinions.” Appellant’s Br. 43. In so contending, Cady focuses on the
district court’s statement that Ezra’s opinion regarding the irrelevance of Cady’s lack of
familiarity with the AEVIT system was “inconsistent with the conclusion [the court had]
reached with respect to contributory negligence and assumption of the risk.” J.A. 2544
(emphasis added). This argument improperly isolates the above language and neglects to
consider the full scope of the district court’s reasoning. Before concluding that Ezra “did
not produce an opinion that was the product of reliable principles and methods,” the
district court explained it was “perplex[ed]” by Ezra’s opinion that “a lot of things were
not important or not worth testing,” including alternative causes for the brake roller arm’s
observed mispositioning. J.A. 2544. Accordingly, we are persuaded, contrary to Ezra’s
assertions, that the district court’s finding was rooted in Ezra’s flawed methodology, not
in the content of, or disagreements with, his conclusions.
Cady’s final argument contends that the district court’s evidentiary ruling is
patently arbitrary, and therefore reversible, given that the court allowed the testimony of
Defendants’ three experts. Cady asserts that Ezra was the most qualified engineer to
address the issue of causation, and he argues that Defendants’ experts either relied on the
same materials as Ezra or based their opinions on less information. Cady concludes that
given these considerations, it “defie[d] legal reasoning” to exclude Ezra’s testimony
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while accepting the opinions of Defendants’ experts. Reply Br. 15. We discern no
irrationality in the district court’s approach.
As an initial matter, we note that the correctness of the denial of Cady’s motions to
exclude the Defendants’ experts is not before this Court. Appellant’s Br. 11 n.1. More
importantly, however, Cady’s arguments fail to depict an arbitrary or erroneous
application of the law. As we have outlined above, Ezra’s opinion was made unreliable
by various methodological flaws and omissions, and these concrete concerns regarding
the opinion’s admissibility are not mitigated by his allegedly superior education or
professional background. Moreover, even if Ezra relied on the same materials as the
Defendants’ experts, it was his apparent failure to analyze or consider relevant
information that led the district court to exclude his testimony. Critically, Cady does not
point to omissions or flaws in the methodology or underlying principles of the
Defendants’ expert opinions that should have resulted in their exclusion.

Cady’s

proposed comparison therefore fails to demonstrate a “patently arbitrary application of
controlling law.” Reply Br. 13 (quoting Evans v. Eaton Corp. Long Term Disability
Plan, 514 F.3d 315, 322 (4th Cir. 2008)).
In light of the above considerations, we conclude that the district court did not
abuse its discretion when excluding Ezra’s expert opinion evidence. 6

6

Without this

Defendants argue that based on the nature of Cady’s arguments, he “has waived
any appeal specific to the admissibility of Mr. Ezra’s opinions concerning EMC” and has
properly preserved only the issue of the opinion’s admissibility as to Ride-Away.
(Continued)
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critical evidence on the issue of causation, Cady’s claims fail as a matter of law.
Accordingly, we must affirm the entry of summary judgment on this basis.
V.
For the reasons set forth above, the judgment is
AFFIRMED.

Appellees’ Br. 1 n.1. Because we affirm the district court’s evidentiary ruling and the
entry of judgment, we need not address this matter.
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DIAZ, Circuit Judge, concurring in the judgment:
I would hold that the district court abused its discretion in excluding the plaintiff’s
expert witness. In my view, the plaintiff’s expert largely used the same data as the
defendant’s experts, offered reasonable explanations discrediting some alternative
theories of the accident, and did not make “wholly conclusory finding[s] based upon his
subjective beliefs rather than any valid scientific method,” Cooper v. Smith & Nephew,
Inc., 259 F.3d 194, 200 (4th Cir. 2001). Thus, the district court’s decision to exclude the
expert was premised more on the expert’s conclusions—and the conflict between those
conclusions and the district court’s own findings on contributory negligence and
assumption of risk—rather than on flaws in the expert’s methodology.
Nonetheless, even after considering the plaintiff’s expert testimony, I agree with
the district court that Cady’s assumption of the risk of injury bars any recovery as a
matter of law.

“The assumption-of-risk doctrine ‘is grounded on the theory that a

plaintiff who voluntarily consents, either expressly or impliedly, to exposure to a known
risk cannot later sue for damages incurred from exposure to that risk.’” Meyers v. Lamer,
743 F.3d 908, 912 (4th Cir. 2014) (quoting Crews v. Hollenbach, 751 A.2d 481, 488
(Md. 2000)). Ordinarily, the jury determines “whether a plaintiff knew of the danger,
appreciated the risk, and acted voluntarily.” Id. (quoting Warsham v. James Muscatello,
Inc., 985 A.2d 156, 168 (Md. Ct. Spec. App. 2009)). However, “when it is clear that a
person of normal intelligence in the position of the plaintiff must have understood the
danger, the issue [concerning knowledge, appreciation of the danger and voluntariness] is
for the court.” Id. (quoting Warsham, 985 A.2d at 168) (alterations in original).
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Appeal: 16-1183

Doc: 42

Filed: 07/17/2017

Pg: 20 of 20

At best, the plaintiff’s expert testimony in this case suggests that mechanical
failure caused the accident. * But this was the same risk Cady assumed when he chose to
operate a van that had already malfunctioned, without proper training, and with parts of
the AEVIT system disengaged. There were numerous warnings, in both the van and the
owner’s manual, which cautioned that such actions could lead to steering control failure,
injury, or death. Despite these warnings, Cady drove the van, lost control, and got into an
accident. His injuries arose from the precise risk he assumed. Indeed, Cady’s decision to
first test-drive the van in a parking lot, before driving it on the open road, demonstrates
his appreciation of the relevant risk.
I therefore concur in the court’s judgment.

According to the plaintiff’s expert, improper installation caused a brake roller to
move out of place as Cady drove the vehicle, resulting in a mechanical failure in the
braking system and eventual loss of control. But “[t]his logistical element” of how
exactly the loss of control occurred is “not relevant to an assumption of risk analysis,
although it might be relevant to a contributory negligence analysis.” C & M Builders,
LLC v. Strub, 22 A.3d 867, 880 (Md. 2011). Under Maryland law, “[c]ontributory
negligence defeats recovery because it is a proximate cause of the accident which
happens, but assumption of risk defeats recovery because it is a previous abandonment of
the right to complain if an accident occurs.” Id. (quoting Warner v. Markoe, 189 A. 260,
264 (Md. 1937).
*

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