UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL J. HARTNETT,

Plaintiff-Appellant,

and

SHEILA HARTNETT,

Plaintiff,

No. 97-2156

v.

GLOBE FIREFIGHTER SUITS,

INCORPORATED,

Defendant & Third Party

Plaintiff-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Catherine C. Blake, District Judge.

(CA-95-468-CCB)

Argued: May 8, 1998

Decided: June 29, 1998

Before ERVIN and MOTZ, Circuit Judges, and BEEZER,

Senior Circuit Judge of the United States Court of Appeals

for the Ninth Circuit, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven Roy Kiersh, Washington, D.C., for Appellant.

Christopher Redmond Dunn, DECARO, DORAN, SICILIANO,
GALLAGHER & DEBLASIS, L.L.P., Lanham, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Daniel J. Hartnett appeals from the district court's decision to

exclude the testimony of Hartnett's expert witness and to deny Hartnett's motion to amend his complaint. Finding no error, we affirm.

I.

On October 29, 1992, Hartnett, who worked as a civilian firefighter

for the Navy, sustained burns and scarring on his arm when the fire

protection coat he wore failed to protect him while he participated in

a live training drill. Hartnett and his wife, Sheila, filed suit against

Globe Firefighter Suits, Inc., asserting claims for products liability

and loss of consortium. Globe, in turn, filed a third-party complaint

against Minnesota Mining and Manufacturing Company (3M), the

manufacturer of the reflective tape used on the sleeves of the coat,

seeking full contribution and indemnification.

The Hartnetts proffered a single expert witness, Ira Block, Ph.D.,

in support of their claims. Dr. Block testified in deposition that the

reflective tape on Harnett's fire protection coat was defectively

designed. He opined that the tape ignited upon exposure to flame and

allowed hot gases to permeate through the fabric of the coat, which

ultimately burned Hartnett. Dr. Block concluded that the reflective

tape burned before the other parts of the coat and that the tape rendered the coat inherently dangerous for its intended purpose of firefighting.

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Dr. Block based his conclusion on a makeshift test that he performed, in which he exposed the coat and reflective strips to flames

from a Bunsen burner and a cigarette lighter. He did not design his

test to measure the coat against the industry standards promulgated by

the National Fire Protection Association (NFPA); he did not produce

a test capable of reproduction or in accordance with any standardized

procedures; and he did not measure the test protocols in any way

beyond his own visual observation and using his hand as a heat detector. Moreover, Dr. Block conceded that the coat (with reflective tape)

probably satisfied the NFPA industry standards, and indicated he had

no information that the coat (with tape) fell below consumer expectations.

On November 26, 1996, Globe and 3M filed motions in limine to

exclude Dr. Block's testimony. They argued that Dr. Block did not

properly test the coat and that he relied on no authority other than his

own subjective opinion in reaching his conclusions. Soon thereafter,

3M filed a notice of intent to rely on Virginia law, and requested that

the district court dismiss the Hartnetts' strict liability and loss of consortium claims as not cognizable under Virginia law. The district

court ruled that Virginia law applied and granted 3M's motion to dismiss those claims. In response, the Hartnetts requested leave to amend

and clarify their complaint to assert claims for negligence and breach

of warranty. See Morgen Indus., Inc. v. Vaughan , 471 S.E.2d 489, 492

(Va. 1996).

The district court then granted the motions to exclude Dr. Block's

testimony, concluding that it could not "find that Dr. Block's testimony [was] sufficient evidence that the reflective trim sewn on to the

sleeves of the [fire protection] coat was defective" because, like the

expert "in Alevromagiros [v. Hechinger Co. , 993 F.2d 417, 421 (4th

Cir. 1993)], `[h]e testified to no customs of the trade, referred to no

literature in the field, and did not identify the reasonable expectations

of consumers.'" The court also denied the Hartnetts' motion to

amend, reasoning that (1) the Hartnetts filed the motion well after 3M

filed its notice to rely on Virginia's nonrecognition of the strict products claim, and only after the court dismissed that claim, and (2) the

amendment would be futile because, other than Block's excluded testimony, the Hartnetts had proffered no evidence to establish that the

coat was defective. Daniel Hartnett appeals.

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II.

On appeal, Hartnett argues only that the district court abused its

discretion in excluding the testimony of Dr. Block and erred in denying the motion to amend the complaint. Both contentions lack merit.

Under Virginia law, a products liability plaintiff

must prove that the product contained a defect which rendered it unreasonably dangerous for ordinary or foreseeable

use. . . . In determining what constitutes an unreasonably

dangerous defect, a court will consider safety standards promulgated by the government or the relevant industry, as well

as the reasonable expectations of consumers. Consumer

expectations, which may differ from government or industry

standards, can be established through evidence of actual

industry practices, . . . published literature, and from direct

evidence of what reasonable purchasers considered defective. Absent an established norm in the industry, a court is

constrained to rely on the opinion testimony of experts to

ascertain the applicable safety standard.

Alevromagiros, 993 F.2d at 420-21 (internal footnotes, citations, and

quotation marks omitted). Thus, Virginia law does not favor reliance

on expert testimony to prove a products liability claim. If a plaintiff

does rely on an expert, that expert's testimony must be supported by

evidence "such as test data or relevant literature in the field." Id. at

422.

Dr. Block's testimony does not meet these requirements. Dr. Block

never identified any government standards and failed to test the coat

to determine whether it met the industry standards as promulgated by

the NFPA. Rather, he conceded that most manufacturers of fire protection coats use 3M's reflective tape, suggesting that this complied

with the industry standard. Dr. Block made no "detailed inspection"

in conducting his test, nor did he cite specific published materials

upon which he relied to reach his conclusion. Cf. Freeman v. Case

Corp., 118 F.3d 1011, 1016-17 (4th Cir. 1997). He performed a single

test that involved no controlled procedures or standard measurements.

Finally, Dr. Block cited nothing suggesting that the use of the reflec-

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tive trim did not meet consumer expectations. Consequently, the district court did not abuse its discretion in granting Globe's and 3M's

motions to exclude the testimony of Dr. Block.

Nor did the district court err in refusing to grant the motion to

amend the complaint. To prevail under either a negligence or a breach

of warranty theory in Virginia, Hartnett would have to prove that the

fire protection coat was unreasonably dangerous for its ordinary or

foreseeable uses and that the defect existed at the time the product left

the manufacturer's control. See Morgen Indus. , 471 S.E.2d at 492;

Alevromagiros, 993 F.2d at 420-21. Here, Dr. Block provided Hartnett's only evidence that the coat was unreasonably dangerous. That

evidence having been properly excluded for failure to meet the minimum threshold of reliability for expert testimony, amendment of the

complaint would have been futile. See Island Creek Coal Co. v. Lake

Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987) (discussing futility as

a basis for denying a request to amend a complaint).

AFFIRMED

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