UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1414

TROY BOSS,

Plaintiff - Appellant,

versus

NISSAN NORTH AMERICA, INCORPORATED, d/b/a

Nissan Motor Corporation in U.S.A., a foreign

corporation; NISSAN DESIGN AMERICA,

INCORPORATED, a foreign corporation; NISSAN

DESIGN INTERNATIONAL, INCORPORATED, a foreign

corporation; NISSAN TECHNICAL CENTER NORTH

AMERICA, INCORPORATED, a foreign corporation;

NISSAN MOTOR COMPANY, LTD, a foreign

corporation,

Defendants - Appellees,

and

JIFFY LUBE INTERNATIONAL OF MARYLAND,

INCORPORATED; EBERLE ENTERPRISES; ELIZABETH A.

ALDRIDGE,

Defendants.

No. 05-1442

TROY BOSS,

Plaintiff - Appellant,

versus
2

JIFFY LUBE INTERNATIONAL OF MARYLAND,

INCORPORATED; EBERLE ENTERPRISES,

Defendants - Appellees,

and

NISSAN NORTH AMERICA, INCORPORATED, d/b/a

Nissan Motor Corporation in U.S.A., a foreign

corporation; NISSAN DESIGN AMERICA,

INCORPORATED, a foreign corporation; NISSAN

DESIGN INTERNATIONAL, INCORPORATED, a foreign

corporation; NISSAN TECHNICAL CENTER NORTH

AMERICA, INCORPORATED, a foreign corporation;

NISSAN MOTOR COMPANY, LTD, a foreign

corporation; ELIZABETH A. ALDRIDGE,

Defendants.

Appeals from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA02-4082-JFM)

Argued: February 1, 2007 Decided: May 22, 2007

Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: James Joseph Pettit, LOCKS LAW FIRM, L.L.C., Cherry Hill,

New Jersey, for Appellant. Joel Allen Dewey, DLA PIPER RUDNICK

GRAY CARY US, L.L.P., Baltimore, Maryland, for Appellees. ON

BRIEF: Thomas L. Gowen, LOCKS LAW FIRM, L.L.C., Philadelphia,

Pennsylvania, for Appellant. Kathleen M. Bustraan, LORD & WHIP,

P.A., Baltimore, Maryland, for Appellee Jiffy Lube of Maryland,

Inc.; Douglas Biser, Matthew Lalumia, MUDD, HARRISON & BURCH,

L.L.P., Towson, Maryland, for Appellee Eberle Enterprises; Jeffrey

M. Yeatman, DLA PIPER RUDNICK GRAY CARY US, L.L.P., Baltimore,

Maryland, for Nissan Appellees.
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Unpublished opinions are not binding precedent in this circuit.
4

PER CURIAM:

Troy Boss, a high school student, was severely injured

when the car he was riding in overturned. Boss sued the car

manufacturer, Nissan North America, Inc., and several of its

corporate affiliates (collectively, “Nissan”) in Maryland state

court, alleging that the car’s power steering system was

negligently designed. He also sued three in-state defendants,

claiming, among other things, that they negligently failed to

inspect, change, or warn the car’s owner to change, the power

steering fluid. Nissan removed the case to federal court, saying

that Boss fraudulently joined the nondiverse defendants to destroy

federal jurisdiction. The district court agreed, dismissed the

nondiverse defendants, and denied Boss’s motion to remand. A year

later, the district court disqualified Boss’s expert witnesses

under Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), and granted summary judgment to Nissan. We affirm.

I.

On August 27, 1997, Stacey Harmon, a sixteen-year-old

high school student, drove her 1987 Nissan Sentra to a McDonald’s

after school. Four other teenagers, including Troy Boss, rode with

her. After the McDonald’s stop, Harmon drove with her passengers

to a Papa John’s restaurant, where they happened upon a friend whom

they agreed to follow to her grandmother’s house. On the way,
5

Harmon came to a left-hand curve in a two lane road. As Harmon

steered through the curve, the Sentra crossed the double yellow

line into the other lane. In order to avoid an oncoming pick-up

truck, Harmon quickly steered back to the right. This sudden

change in direction caused the car to roll over several times

before coming to a stop in a meadow adjacent to the road. Boss was

severely injured in the crash and is now a paraplegic. 

The events leading up to the crash are disputed. Two

eye-witnesses, including one of Harmon’s passengers, said that

Harmon was speeding and driving recklessly. Harmon states that she

was driving 30-35 mph, the speed limit, when the steering wheel

suddenly “jerked completely out of [her] hands.” J.A. 879.

Boss sued Nissan in Maryland state court. He alleged

that a particle became lodged in the spool valve of the power

steering system, blocking the flow of power steering fluid. This

sudden loss of power steering, he says, caused Harmon to lose

control of the vehicle. He claimed that the particle filter in the

vehicle’s power steering system was defectively designed and that

Nissan negligently failed to warn its customers of the need to

change the power steering fluid and filter periodically. 

Boss joined three Maryland residents as defendants in the

suit: Elizabeth Aldridge (the former owner of the Nissan), Eberle

Enterprises (the company that conducted the Maryland safety

inspection), and Jiffy Lube of Maryland, Inc. (the company that
6

allegedly serviced the steering system shortly before the

accident). Boss claimed that Aldridge and Eberle negligently

represented the car to be in safe condition and that Jiffy Lube

negligently failed to change the power steering fluid. All

parties, except for Nissan, are Maryland residents. 

The Maryland defendants then filed a motion to dismiss.

The state court denied the motion and allowed twelve months for

discovery, to end in February 2003. In June and August 2002 Jiffy

Lube and Eberle requested Boss to produce the documents showing the

services that they had allegedly contracted to perform on the

Nissan Sentra. Boss’s counsel responded that the requested

documents were in his office, and the parties agreed to meet there

on December 13, 2002. After reviewing the documents, the

defendants concluded that the documents did not support the factual

allegations made in the complaint, specifically the allegations (1)

that Jiffy Lube had contracted to inspect or change the power

steering fluid, and (2) that Eberle falsely asserted in an

inspection report that the vehicle complied with Maryland safety

standards. On December 16, 2003, Nissan filed a notice of removal,

see 28 U.S.C. § 1446(a), in the United States District Court for

the District of Maryland, stating that there was diversity

jurisdiction over the non-fraudulently joined parties. Thereafter,

Jiffy Lube, Eberle, and Aldridge filed a motion to dismiss in

district court. Boss filed a motion to remand to state court,
7

claiming that the district court did not have jurisdiction over the

case. The court denied the motion to remand and granted the

nondiverse defendants’ motion to dismiss. 

The case continued in district court between Boss and

Nissan. In May 2004 Nissan filed a motion to disqualify Boss’s

four expert witnesses (Gerald Rosenbluth, Dean Jacobson, Richard

Tessmann, and David Leonard), who planned to testify that a

particle jam in the power steering system caused a steering

malfunction. After a Daubert hearing the district court granted

Nissan’s motion to disqualify the four experts. The court then

granted Nissan’s motion for summary judgment because Boss could not

make out a prima facie case without expert testimony. Boss appeals

the district court’s denial of his motion to remand to state court.

He also appeals the district court’s order disqualifying his expert

witnesses and the grant of summary judgment for Nissan.

II.

Boss argues that the district court did not have subject

matter jurisdiction over the case for two reasons. First, he

claims that Nissan did not file a timely notice of removal under 28

U.S.C. § 1446(b). Second, he says that the district court erred in

determining that Jiffy Lube and Eberle were fraudulently joined.

(He does not appeal the fraudulent joinder determination as to

Aldridge, the former owner of the Sentra.) “We review de novo
8

questions of subject matter jurisdiction, including those relating

to the propriety of removal and ‘fraudulent joinder.’” Mayes v.

Rapoport, 198 F.3d 457, 460 (4th Cir. 1999).

A.

We conclude that Nissan’s notice of removal was timely.

A defendant has 30 days to file a notice of removal, starting from

the date the defendant receives the complaint or from the date “it

may first be ascertained that the case is one which is or has

become removable.” 28 U.S.C. § 1446(b); see also Lovern v. General

Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997) (“[O]nly where an

initial pleading reveals a ground for removal will the defendant be

bound to file a notice of removal within 30 days.”). The grounds

for removal were not immediately apparent in this case because

Boss pled facts, which if true, would establish a cause of action

against one or more of the nondiverse defendants. Nissan did not

have reason to remove the action until December 13, 2002, when

Boss’s counsel provided the documents that Boss relied on to

establish his claims against the nondiverse defendants. Thus, the

30-day window for filing a notice of removal started on December

13, 2002. See Lovern, 121 F.3d at 162 (stating that the defendant

will have “30 days from the revelation of grounds for removal”).

Nissan’s notice of removal on December 16, 2002, was timely because

it was filed within this 30-day window and not later than one year

after the commencement of the action. Id.; § 1446(b).
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B.

The doctrine of fraudulent joinder permits a federal

court to “disregard, for jurisdictional purposes, the citizenship

of certain nondiverse defendants, assume jurisdiction over a case,

dismiss the nondiverse defendants, and thereby retain

jurisdiction.” Mayes, 198 F.3d at 461. A defendant alleging

fraudulent joinder must show that “there is no possibility that the

plaintiff would be able to establish a cause of action against the

in-state defendant.” Hartley v. CSX Transp. Inc., 187 F.3d 422,

424 (4th Cir. 1999) (internal quotations and citations omitted);

see also Great Plains Trust Co. v. Morgan Stanley Dean Witter &

Co., 313 F.3d 305, 312 (5th Cir. 2002) (stating that a defendant is

fraudulently joined if there is no “reasonable basis for predicting

that state law might impose liability on the facts involved”)

(internal quotations and citations omitted). In deciding whether

the plaintiff has any chance of recovery against the defendant, the

court “is not bound by the allegations of the pleadings, but may

instead ‘consider the entire record.’” AIDS Counseling & Testing

Centers v. Group W Tele., Inc., 903 F.2d 1000, 1004 (4th Cir. 1990)

(quoting Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th

Cir. 1964)).

1.

We first consider whether Boss had a possibility of

success against Eberle. Boss says that Eberle was negligent
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because it “certified the vehicle to have met safety requirements

. . . when the vehicle did not meet those standards, as the

steering fluid was contaminated and contained metal fragments . . .

and other contaminants that made the vehicle dangerous to operate,

conditions that should have necessitated flushing the system and

replacing the fluid.” J.A. 53. To establish a claim against

Eberle, Boss must show that Eberle failed to exercise reasonable

care in performing the services it agreed to undertake. See 2

Restatement (Second) of Torts § 323, at 135 (1965) (stating that

“one who undertakes ... to render services to another ... is

subject to liability to the other for physical harm resulting from

his failure to exercise reasonable care to perform the

undertaking”); W. Page Keeton et al., Prosser and Keeton on Torts

§ 93, at 670 (5th ed. 1984) (stating that actor can be held liable

“when foreseeable harm has resulted from reasonable reliance on a

promisor to do what was promised”). The record shows that Eberle

only agreed to inspect the car for compliance with Maryland’s

automobile safety regulations. The regulations governing this

inspection do not require the steering fluid to be inspected or

changed. Thus, Eberle did not have a duty to inspect or flush the

steering fluid, and the company cannot be held liable for injury

caused by steering fluid contamination.
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2.

Boss cannot succeed on his claim against Jiffy Lube

either. Boss states that Jiffy Lube “was grossly negligent in

rendering automobile maintenance and repair service in providing

partial or incomplete service to the power steering mechanism

and/or fluid in the subject Nissan.” J.A. 62. Boss also claims

that Jiffy Lube was “negligent in failing to properly instruct its

customers in the proper way to maintain and/or inspect the power

steering mechanisms and/or power steering fluid for contaminants.”

Id.

 Again, Jiffy Lube only had a duty to use reasonable care

in performing the services that it contractually agreed to

undertake. See 2 Restatement (Second) of Torts § 323, at 135.

There is no evidence that Jiffy Lube agreed to inspect the steering

mechanism or power steering fluid. Indeed, Jiffy Lube submitted an

affidavit from the Manager of Customer Service and Technical

Support, Kenneth Williams, stating that Jiffy Lube only performed

a “full service oil change (‘signature service’) and breather

replacement” on the Nissan. J.A. 390. Williams also stated that

“Jiffy Lube’s approved services do not and have never included

changing or inspecting power steering fluid for contaminants.” Id.

Jiffy Lube cannot be held liable for failing to perform a service

that it did not agree, or have an affirmative duty, to undertake.
12

Boss argues that the district court prematurely concluded

that he could not establish a claim against Jiffy Lube. He says

that removal to federal court deprived him of two months of

discovery in state court, during which time he could have acquired

evidence that Jiffy Lube agreed to inspect the steering mechanism

and fluid. Thus, he says, it was impossible to conclude that Boss

had no possibility of success against Jiffy Lube.

The removal to federal court, however, did not cut off

Boss’s opportunity to continue discovery. The district court did

not act on Boss’s motion to remand, filed on January 14, 2003,

until April 18, 2003, when it held a hearing to consider Nissan’s

claim of fraudulent joinder and Boss’s motion to remand. Until

that date (which was two months after the state discovery period

would have ended) Boss could have sought further discovery and

submitted to the district court any evidence showing that Jiffy

Lube had agreed to inspect the steering mechanism and power

steering fluid. See Crowe v. Coleman, 113 F.3d 1536, 1538 (11th

Cir. 1997) (stating that the district court should consider

affidavits and deposition transcripts submitted by the parties in

deciding fraudulent joinder); cf. Badon v. RJR Nabsico, Inc., 224

F.3d 382, 387 (5th Cir. 2000) (noting that plaintiffs did not “seek

any delay in ruling on the motion to remand [after removal for

fraudulent joinder] in order to produce or discover evidence in

support of the motion”). Boss made no attempt, however, to rebut
13

Jiffy Lube’s affidavit in the three months that his motion to

remand was pending before the district court. We thus conclude

that Nissan met its burden of showing that Boss had no possibility

of success against Jiffy Lube. See Legg v. Wyeth, 428 F.3d 1317,

1323 (11th Cir. 2005) (“When the Defendants’ affidavits are

undisputed by the Plaintiffs, the court cannot resolve the facts in

the Plaintiffs’ favor based solely on the unsupported allegations

in the Plaintiffs’ complaint.”).

We conclude that the district court properly determined

that the nondiverse defendants were fraudulently joined.

Accordingly, there is federal subject matter jurisdiction based on

the diversity of citizenship between Boss and Nissan, see 28 U.S.C.

§ 1332(a), and the district court did not err in denying Boss’s

motion to remand to state court.

III.

Boss also claims that the district court abused its

discretion in disqualifying his four expert witnesses: Gerald

Rosenbluth, Richard Tessmann, Dean Jacobson, and David Leonard

(“the experts”). The experts planned to testify that (1) the 1987

Nissan Sentra’s power steering system was defectively designed, and

(2) a particle lodged in the power steering system’s spool valve

caused a steering malfunction. Because the experts rely on the
14

same scientific theory (particle jamming), we treat them alike for

purposes of the Daubert analysis. 

A.

 The power steering system in the 1987 Nissan Sentra uses

hydraulic pressure to reduce the force needed to turn the steering

wheel. When the driver turns the wheel, a valve opens in the power

steering system. Fluid passing through the valve creates hydraulic

pressure, which helps the driver overcome the “resistance of the

wheels to the turning effort.” J.A. 1323. At all times, however,

there is a direct mechanical link from the steering wheel to the

road wheels.

The experts assert that the Nissan’s steering system is

“unreasonably dangerous” because microscopic particles “on the

order of and significantly larger than the spool valve clearance

are allowed in the hydraulic system.” J.A. 2044. These particles

can get caught in the valve, “limiting pressurized fluid from going

from the pump to the steering cylinder.” Appellant’s Br. at 5.

According to Boss’s experts this loss of pressure can cause a

“sudden, unexpected, and catastrophic malfunction of the steering

system,” J.A. 501, until the driver applies sufficient pressure on

the steering wheel to crush or shear the particle lodged in the

spool valve. The force needed to crush a particle is

“significantly higher . . . than would be required for simple

turning.” J.A. 1997.
*

The experts disagree on what effect a particle jam would have

on the car. One of the experts says that a particle jam caused

Harmon’s car to “self-steer” to the left. J.A. 1383. Another

expert says that the particle jam froze the steering wheel, causing

the car to “continue to turn left when the road straightened out.”

J.A. 1998.

15

The following events occurred, in the opinion of the

experts, as Harmon entered the left-hand curve in the road: One or

more particles blocked the spool valve in the power steering

system, causing the steering wheel to lock up or slowly self-steer

to the left.* As the car crossed into the opposite lane, Harmon

realized that the steering wheel was not responding to her efforts

to turn it. Because “normal steering force on the steering wheel

was not sufficient to overcome the obstruction caused by the

particles,” she “violently jerked” the wheel to the right,

dislodging the jammed particle. J.A. 1998. As steering fluid

passed back through the spool valve, the steering wheel turned hard

to the right, and the car overturned.

B.

Expert testimony must be both reliable and relevant. See

Daubert, 509 U.S. at 589; Fed. R. Evid. 702. After reviewing the

record, we conclude that the testimony was neither. Thus, the

district court did not abuse its discretion, see Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999), in refusing to admit this

testimony.
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1.

In determining whether testimony based on scientific

knowledge is reliable, the court should consider a number of

factors, including: whether the scientific theory can be or has

been tested; the known rate of error; whether the theory has been

subjected to peer review and publication; and whether it has

achieved general acceptance in the relevant scientific or expert

community. Daubert, 509 U.S. at 593-94; United States v. Crisp,

324 F.3d 261, 265-66 (4th Cir. 2003).

The experts’ testimony that a particle jam occurred is

speculative. There is no physical evidence that a particle became

lodged in the Nissan’s spool valve. The examination of the car’s

steering system and power steering fluid only showed that there

were a “significant number of particles” that were capable of

blocking the spool valve. J.A. 2046. (This finding was expected

because all power steering fluid contains such particles.) The

experts cannot draw any reliable conclusions from this finding,

however, because the probability of a particle causing a jam has

never been established. See J.A. 2052 (“It may never happen. It

may happen occasionally. It may happen under conditions where you

are able to overcome it without realizing that you have ever had a

jam.”); J.A. 2053 (“[Y]ou would have to do tests that I think would

require probably many hundreds of thousands if not millions of
17

cycles in order to generate the probabilities.”). Thus, the

experts can only say that a particle jam could have occurred.

Assuming a jam did occur, Boss’s experts do not rely on

any field tests to support their testimony that a particle jam

would cause the steering wheel to lock up or self-steer.

Furthermore, their conclusion that resistance on the steering wheel

caused Harmon to oversteer to the right is also unreliable because

the experts have not determined how much force would be required to

crush or shear a lodged particle. See J.A. 1768 (“I don’t have any

idea how much . . . force would be [needed to dislodge the

particle], but it would be something.”); J.A. 1407 (admitting that

“[t]he particle could have dislodged itself with a very minimal,

nondiscernible elevated steering input”). Thus, even if a particle

did block the spool valve, the experts have no basis for concluding

that it affected Harmon’s control over the vehicle.

The risk of steering malfunction caused by particle

jamming is not generally accepted in the engineering community. A

study conducted by the National Highway Traffic Safety

Administration (NHTSA) determined that particle jamming did not

pose a risk to drivers. General Motors, which contributed to the

study, stated that “a lockup due to metal particles . . . in the

power steering fluid at the spool valve location can not occur” in

steering systems with a direct mechanical link between the steering

wheel and the road wheels. J.A. 1116. Likewise, Ford Motor
18

Company concluded that a particle jam would not cause anything

beyond “inconsequential, momentary interferences with the steering

that would be easily overcome by the driver.” Id. The NHTSA also

reviewed 36 lawsuits in which plaintiffs alleged that a particle

jam caused a steering malfunction and concluded that “assignment of

the fatalities to the power steering spool valve or the power

steering system [was] not logical.” J.A. 1117.

Despite the lack of scientific evidence or testing, the

experts say that a particle jam must have occurred because it is

the only plausible explanation for the crash. (They rule out other

mechanical failure, as does Nissan, because the post-accident

inspection of the vehicle did not reveal any defects in the car.)

The experts, however, simply assume that human error did not cause

the crash. See J.A. 1218-19 (offering “no opinion as to whether

or not driver error was the cause of the accident”). This

assumption, combined with the lack of any evidence showing that a

particle jam did occur, makes the experts’ testimony unreliable and

speculative.

2.

Expert testimony must also be relevant. In other words,

it must “assist the trier of fact to understand the evidence”

presented at trial. Fed. R. Evid. 702. The testimony of Boss’s

experts cannot perform this function because the experts assume

facts that are inconsistent with the other evidence presented by
19

Boss, specifically Harmon’s testimony. See Daubert, 509 U.S. at

591 (stating that there must be a logical connection between the

expert’s theory and the facts of the case).

The experts, for example, say that a particle jam caused

the steering wheel to either freeze up or slowly self-steer to the

left. Harmon, however, testified at her deposition that the

steering wheel suddenly “jerked [ninety degrees] to the left.”

J.A. 793. Because the particle jam theory cannot explain the

occurrence described by Harmon, the experts simply ignore her

testimony. See J.A. 1385 (stating that the car’s movement to the

left “may have seemed instantaneous to her, but it didn’t happen

instantaneously”). The experts also say that Harmon oversteered to

the right because she felt significant resistance when she first

attempted to turn the wheel. Harmon testified that she never felt

any resistance on the steering wheel, which felt “very loose.”

J.A. 794. Again, Boss’s experts dismiss Harmon’s testimony,

saying, “These folks suffered a trauma. They rolled over a

vehicle. So she is giving you the best of her recollection.” J.A.

1406.

In sum, the experts’ testimony is neither reliable nor

relevant. The tests performed on the particle jam theory only

establish that a particle jam could affect the steering mechanism.

There is no evidence, however, that a particle jam actually

occurred in this case or that it caused the steering system to
20

malfunction. Moreover, the testimony is not relevant because it is

inconsistent with the driver’s own account of the accident. Thus,

the district court did not abuse its discretion in disqualifying

Boss’s experts.

IV.

For the foregoing reasons we affirm the district court’s

order denying Boss’s motion for remand. We also affirm the

district court’s order disqualifying Boss’s expert witnesses.

Because Boss cannot establish a prima facie case of product

liability without expert testimony, we affirm the order of summary

judgment in Nissan’s favor.

AFFIRMED