UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


FREDERICK SHAFFER HIGGINBOTHAM,          
III; STEPHANIE HIGGINBOTHAM,
                Plaintiffs-Appellants,
                  v.
KCS INTERNATIONAL, INCORPORATED,                  No. 02-1527
t/a Cruisers Yachts; WINDLINE,
INCORPORATED; WAREHOUSE CREEK
YACHT SALES, INCORPORATED,
               Defendants-Appellees.
                                         
            Appeal from the United States District Court
             for the District of Maryland, at Baltimore.
              Marvin J. Garbis, Senior District Judge.
                         (CA-00-2764-MJG)

                       Argued: October 31, 2003

                       Decided: January 22, 2004

          Before WILKINS, Chief Judge, and KING and
                  GREGORY, Circuit Judges.



Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Wilkins and Judge King joined.


                              COUNSEL

ARGUED: Mark Thomas Mixter, LAW OFFICES OF MARK T.
MIXTER, Baltimore, Maryland, for Appellants. J. Christopher Bou-
2               HIGGINBOTHAM v. KCS INTERNATIONAL
cher, ALLEN, KARPINSKI, BRYANT & KARP, Baltimore, Mary-
land; Richard Lee Nilsson, BRIZENDINE & NILSSON, Timonium,
Maryland, for Appellees. ON BRIEF: Daniel Karp, ALLEN, KAR-
PINSKI, BRYANT & KARP, Baltimore, Maryland; Mary Malloy
DiMaio, MAHER & ASSOCIATES, Towson, Maryland, for Appel-
lees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

GREGORY, Circuit Judge:

                                  I.

   This is an appeal from the United States District Court for the Dis-
trict of Maryland (Garbis, J.). Appellants, Frederick Shaffer Higgin-
botham, D.D.S., and his wife Stephanie (collectively, the
"Higginbothams"), appeal the district court’s grant of summary judg-
ment for the appellees. The Higginbothams sued seeking compensa-
tion for injuries Dr. Higginbotham sustained while attempting to use
a broken swim ladder while on board his marina-docked yacht. Dr.
Higginbotham attempted to extend the swim ladder attached to his
boat and noticed that it was stuck. He nevertheless forced the ladder
to extend and, as a result, was thrown across the yacht and sustained
significant injuries. The Higginbothams sued the manufacturer of the
yacht, the manufacturer of the ladder, and the yacht broker, alleging
negligence, breach of warranty, and defective design.

   The district court granted partial summary judgment for the yacht
manufacturer as to the negligence and breach of warranty claims, and
granted full summary judgment for the yacht broker and ladder manu-
facturer as to the loss of consortium, negligence, breach of warranty
and strict liability claims. After an evidentiary hearing, the district
court excluded the testimony of the Higginbothams’ sole expert
                 HIGGINBOTHAM v. KCS INTERNATIONAL                    3
because his testimony was both unreliable and unscientific. The
expert sought to establish that the ladder was defective because it bent
under the pressure exerted by Dr. Higginbotham’s normal use of the
ladder. Alternatively, the expert alleged that the ladder suffered from
inherent metallurgical defects. After excluding the proffered expert
testimony, the district court concluded that the Higginbothams had
failed to produce adequate evidence to establish that a defect in the
ladder was a proximate cause of the bend. Thereafter, the district
court granted summary judgment for the yacht manufacturer as to the
remaining claims. The Higginbothams appealed. For the reasons dis-
cussed herein, we AFFIRM.

                                  II.

   This case arises out of injuries Dr. Higginbotham sustained in May
of 1991 while attempting to extend the swim platform ladder on a
yacht. The yacht at issue is a demo-model purchased by the Higgin-
bothams’ private corporation, which collects charter fees for private
charters. The ladder at issue is a three-rung white aluminum telescop-
ing ladder used to board the vessel from the water. Prior to Dr. Hig-
ginbotham’s purchase, the ladder had been used without incident in
the showroom by dealers and potential customers who desired to
board the yacht. On the day of the accident, Dr. Higginbotham
attempted to extend the ladder but it was "stuck or [it] hesitated"
before coming loose. J.A. at 1866. Dr. Higginbotham pulled hard on
the ladder and when the ladder freed itself, Dr. Higginbotham was
thrown backwards hitting his head, shoulder and back on the transom
and his hip on the swim platform of the yacht. Also, Dr. Higgin-
botham’s hand was lacerated by the metal ring attached to the ladder.

   The Higginbothams brought suit in September 2002 against the
manufacturer of the yacht, KCS International Inc. ("KCS"), the yacht
broker, Warehouse Creek Yacht Sales, Inc. ("Warehouse Creek"), and
the manufacturer of the ladder, Windline Inc. ("Windline"), alleging
breach of express and implied warranties, negligence, strict liability
and loss of consortium. In November 2001, Warehouse Creek and
Windline filed separate motions for summary judgment. After a hear-
ing in February 2002, the district court granted Warehouse Creek’s
motion for summary judgment and granted in part Windline’s motion
for summary judgment. The court reserved its ruling on the remainder
4               HIGGINBOTHAM v. KCS INTERNATIONAL
of Windline’s motion pending a Daubert hearing to determine the
admissibility and adequacy of the Higginbothams’ proffered expert
testimony. After the Daubert hearing, the district court declared the
Higginbothams’ expert testimony inadmissible under Daubert. Con-
sequently, the court granted the balance of Windline’s motion for
summary judgment.

                                  III.

   We must first determine whether the district court properly
excluded the Higginbothams’ only expert testimony. This court
reviews the decision of a district court to admit or exclude evidence
for abuse of discretion. Westberry v. Gislaved Gummi AB, et. al., 

, 261 (4th Cir. 1999)(citing General Elec. Co. v. Joiner, 

, 139 (1997)).

   The introduction of expert opinion testimony is governed by Fed-
eral Rule of Evidence 702, which provides, in pertinent part:

    If scientific, technical, or other specialized knowledge will
    assist the trier of fact to understand the evidence or to deter-
    mine a fact in issue, a witness qualified as an expert ... may
    testify thereto in the form of an opinion or otherwise.

FED. R. EVID. 702 (West 2002).

   Expert testimony is admissible under Rule 702, then, if it concerns
(1) scientific, technical, or other specialized knowledge that (2) will
aid the jury or other trier of fact to understand or resolve a fact at
issue. Daubert v. Merrell Dow Pharms., Inc., 

, 592
(1993). The first prong of this inquiry necessitates an examination of
whether the reasoning or methodology underlying the expert’s prof-
fered opinion is reliable—that is, whether it is supported by adequate
validation to render it trustworthy. 

(citing

).

   Ultimately, an expert’s testimony is admissible under Rule 702 if
it "rests on a reliable foundation and is relevant." Kumho Tire Co. v.
Carmichael, 

, 141 (1999) (internal quotation marks
                 HIGGINBOTHAM v. KCS INTERNATIONAL                      5
omitted). The district court’s role in considering the admissibility of
expert testimony is that of a "gate-keeper," whose prime task is to
assess the reliability and relevancy of the proffered evidence. See 

the gate-keeper, the district court’s inquiry is "a flexible
one" focusing on the "principles and methodology" employed by the
expert, not on the conclusions reached. 

.
When making its initial determination of reliability, the trial judge
enjoys broad latitude to consider whatever factors bearing on validity
that the court finds to be useful; the particular factors will, however,
depend upon the unique circumstances of the expert testimony
involved. Kumho Tire Co., 

.

   As the gate-keeper, the district court must remember that due to the
difficulty of evaluating their testimony, expert witnesses have the
potential to "be both powerful and quite misleading." Daubert, 509 at
595 (internal quotation marks omitted). Thus, where the expert prof-
fer has a greater potential to mislead than to enlighten, that evidence
may properly be excluded. 

(citing United
States v. Dorsey, 

, 815-16 (4th Cir. 1995)).

   Under the above standard, we conclude that the district court prop-
erly excluded the testimony of the Higginbothams’ expert, Mr. Ken-
neth Court.1 The court concluded that Mr. Court’s testimony was not
based upon reliable methodology and, therefore, his conclusions were
inadmissible. The district court found that the Higginbothams had
presented "evidence adequate to support a finding that:

      A. Sometime prior to May, 30 1999, when Dr. Higgin-
         botham used the latter at issue, the ladder was bent by
         some force.

      B. The bend in the ladder was a proximate cause of the
         accident and, thus, of the injuries to Dr. Higginbotham.
  1
    Mr. Court is a naval architect marine engineer. J.A. at 1109. The dis-
trict court qualified him as a mechanical engineer with knowledge of lad-
ders in a marine context. J.A. at 1870. He is not a metallurgist, J.A. at
1116, and has no special training in the design of swim ladders. J.A. at
1242-43.
6               HIGGINBOTHAM v. KCS INTERNATIONAL
J.A. at 1869. The court also considered Plaintiffs’ alternative argu-
ments that the ladder was bent by "normal ladder use" or due to "de-
fective design." The district court, thereafter, entered summary
judgment against the Higginbothams because there was no evidence
that the alleged "defect in the ladder was a proximate case of the
bend." J.A. at 1869-70. We discuss the gravamen of the Higgin-
bothams’ arguments in seriatim below.

A. Normal Ladder Use

   The district court found inadmissible Mr. Court’s expert opinion
that the bend was caused by Dr. Higginbotham’s normal use of the
ladder. The court also found that "even if admitted, the said opinions
would not amount to evidence adequate to establish the existence of
a defect in the ladder or a causative relationship between any defect
and the bend at issue." J.A. at 1870.

  The district court properly rejected Mr. Court’s analysis which is
patently laden with flaws. Most notably:

    Mr. Court agrees with [defense expert] Dr. Richard that the
    static forces applied to the ladder from normal use by Dr.
    Higginbotham (assumed to be a 200 pound individual)
    would result in an applied force of less than half of that
    needed to cause this bend.

J.A. at 1871 (emphasis added). Mr. Court himself concedes that Dr.
Higginbotham’s normal use could not have caused the bend. Indeed,
"by the Daubert hearing, Mr. Court had changed his opinions for a
third time to the point where both experts agreed that there would
only be 37.9% of the force necessary to bend the ladder visited upon
it by a 200 pound man ... It would take over 62% more than that to
bend it." Brief of Appellees at 21 (citing J.A. at 1804, 1807-08, 1811-
12)(emphasis added). Mr. Court then, without any valid basis, "sim-
ply jumps to the conclusion that the dynamic component of the force
must have been sufficient to cause the bend." J.A. at 1871.

  Mr. Court reached his conclusion without performing any testing
on the actual ladder at issue or even an exemplar ladder. J.A. at 1815-
                 HIGGINBOTHAM v. KCS INTERNATIONAL                    7
17. And, his methodology was clearly speculative. During his deposi-
tion, Mr. Court attempted to explain his methodology, but conceded
that it rested upon "assumptions," not science.

    Q. Mr. Court, you don’t know the number of pounds that
       were visited by Dr. Higginbotham at any point on this
       ladder other than the fact that they are in excess of
       some point; is that right?

                                 ***

    A. To do an exact model of a man loading a ladder, you
       would have to know what he did exactly at that time,
       and that modeling is objected to unless your model is
       the exact same as what really happened. Any time you
       start putting in assumptions, you open things. So what
       I did was I pointed out my model of a hypothetical
       man, how the load would occur? I did a calculation of
       the ladder and what would cause it to bend, and then
       I compared the two and said, there is enough slack for
       the dynamics to pick up the difference, and there is
       where I am.

J.A. at 1352-53. Similarly, Mr. Court can only speculate as to when
the ladder was bent. J.A. at 1182. He has done no calculations or
drawings as to the loads that would be visited upon the ladder if the
ladder were used to board the boat out of the water. J.A. at 1201-03.
He did not calculate the yield strength the ladder would require in
order for it not to bend. J.A. at 1240-41. And, he did not take buoy-
ancy into account, J.A. at 1783, 1790-91, even though he admits that
buoyancy accounts for "some percentage" of the force visited upon
the ladder. 

ladder is most often used in water where
buoyancy is surely a factor.

   In any event, Mr. Court’s calculations concerning the force he
assumes Dr. Higginbotham would have applied to the ladder are
insufficient in that Mr. Court completely failed to notice that Dr. Hig-
ginbotham’s ladder had handholds. J.A. at 1828-31. Thus, when he
calculated the force visited upon the ladder by Dr. Higginbotham—or
actually, a 200 pound hypothetical man—he did not even consider the
8                  HIGGINBOTHAM v. KCS INTERNATIONAL
fact that the absence of a handhold would require "Dr. Higginbotham
[to lean] much farther back than he would need to, and [to put] much
more force on the ladder," and that the absence of a handhold "puts
more on the dynamic force," which admittedly "cut[s] the number
down again." J.A. at 1830-31.

   Each of these flaws alone casts sufficient doubt upon the reliability
of Mr. Court’s methodology. This is particularly true since "the pro-
ponent of the expert proffer bears the burden of establishing admissi-
bility by a preponderance of proof." 

n.10.
Considered in the aggregate, these flaws raise a high inference of
unreliability.

   The flaws in the proffered expert testimony, however, cut much
deeper. Based upon Mr. Court’s testimony, there is no sufficient basis
upon which a reasonable juror could conclude that Dr. Higgin-
botham’s normal use of the ladder caused the ladder to bend. There
are too many alternate theories of causation for Mr. Court’s theory to
establish causation by a preponderance of the evidence. Most notably,
the swim ladder on the Higginbothams’ previous yacht was destroyed
while being docked by someone else because the yacht was not prop-
erly tied down and, as a result, it coasted back into the floating docks.
J.A. at 184-85. Indeed, the yacht at issue was docked in Maryland and
used by others as a charter vessel while the Higginbothams were
home in West Virginia during the off-season. Thus, the district court
properly noted that:

    it is undisputed that the ladder could have been bent as a
    result of force from contact between the extended ladder and
    an object such as a pier, another boat, etc. Such contact
    could occur without the knowledge of Dr. Higginbotham. Of
    course, it is not the Defendant’s burden to prove that this (or
    some other) "innocent" force caused the bend. Rather, it is
    the burden of Plaintiffs to present evidence from which a
    jury could find that, more likely than not, the bend was
    caused by Dr. Higginbotham’s normal ladder use.

J.A. at 1871-72.

   Given the court’s tenable objections to Mr. Court’s evidence, and
his reliance upon "‘logical’ reasoning that because there was a bend
                 HIGGINBOTHAM v. KCS INTERNATIONAL                      9
in the metal, whatever dynamic force was necessary must have been
contributed by Dr. Higginbotham’s ordinary ladder use," J.A. at 1871,
the district court’s exclusion of Mr. Court’s expert testimony was not
an abuse of discretion. Mr. Court’s unreliable conclusions, clearly
have the potential to "be both powerful and quite misleading." Dau-

.

B. Defective Design

  The district court correctly concluded that "[e]ven if Plaintiffs were
able to prove that the bend in the ladder was caused by Dr. Higgin-
botham’s normal use, they would not be able to prove an actionable
defect in the ladder." J.A. at 1872. That is because "[t]here is no evi-
dence establishing any applicable design standards" and because Mr.
Court’s expert opinion that "the ladder was defective in design is
manifestly inadmissible." 

the primary issue in a design defect case "is
whether a manufacturer, knowing the risks inherent in his product,
acted reasonably in putting it on the market." Singleton v. Int’l Har-
vester Co., 

, 115 (4th Cir. 1981) (citing Phipps v. Gen-
eral Motors Corp., 

, 

(1976)(adopting strict
liability in tort)). In design defect cases, Phipps directs courts to bal-
ance:

     (1) the usefulness and desirability of the product;

     (2) the availability of other and safer products to meet the
         same need;

     (3) the likelihood of injury and its probable seriousness;

     (4) the obviousness of the danger;

     (5) common knowledge and normal public expectation of
         the danger (particularly for established products);

     (6) the avoidability of injury by care in use of the product;
         and
10               HIGGINBOTHAM v. KCS INTERNATIONAL
      (7) the ability to eliminate danger without seriously
          impairing the usefulness of the product.

(citing 

n.4).

   The fact that another design alternative exists—even a safer one—
standing alone is patently insufficient. The district court correctly
concluded, therefore, that "[a]n admissible opinion as to a design
defect requires more than an ability to hypothecate a design that
would have avoided the accident at issue." J.A. at 1873 (citing Tokio
Marine & Fire Ins. Co., Ltd. v. Grove Manuf’g Co., 

,
1174 (1st Cir. 1992)("[An] opinion on whether or not there is a design
defect call[s] in essence, for meaningful cost-benefit analysis. This
required, in turn, considerable familiarity with the device [at issue]
with [device] design, manufacture and marketing; with applicable
industry standards, and so on.").

   As stated above, Mr. Court has no training in metallurgy nor does
he have any training in ladder design. Outside of this case, Mr. Court
has no familiarity with the ladder at issue or swim ladders in general.
In fact, he has never manufactured a swim ladder or taken part in
manufacturing one. J.A. at 1242-43. Yet, his "proffered design defect
opinion is based upon his conclusion that a stronger ladder could have
been built using steel rather than aluminum." J.A. at 1873. Mr. Court,
however, failed to establish that aluminum—as opposed to steel—is
an inadequate material. And, he offers no admissible expert opinion
as to the other factors required under Maryland law. Nor is he quali-
fied to do so.
   Moreover, the district court properly rejected Mr. Court’s alterna-
tive and unsupported conclusion that if there was no design defect,
there must have been a defect in the metal used to make the ladder.
As discussed above, Mr. Court is not a metallurgist and has no special
training as a materials engineer. Consequently, his opinion is invalid
and the court below correctly concluded that "there is not the slightest
reason to suspect a metallurgical defect in view of the extensive use
of the ladder without incident prior to Dr. Higginbotham’s acquisition
of the boat."2


  2
   As discussed above in the facts, Dr. Higginbotham’s boat was used
as a demo model before he purchased it. Sales staff and customers fre-
                 HIGGINBOTHAM v. KCS INTERNATIONAL                      11
   Accordingly, the district court did not abuse its discretion by
excluding Mr. Court’s expert testimony on defective design. Because
the entirety of Mr. Court’s expert testimony was properly excluded,
summary judgment on all claims was clearly proper. We need not
reach the remaining negligence and strict liability claims separately
because the elements of proof are the same whether the claim be for
strict liability or negligence.3 The Higginbothams failed to establish
both a design defect and causation and, therefore, all of their negli-
gence, breach of warranty and strict liability claims fail.
                                   IV.
   In sum, the district court’s exclusion of Mr. Court’s expert testi-
mony was not an abuse of discretion. Consequently, the Higgin-
bothams failed to present any competent evidence of a design defect,
failed to establish causation, and failed to establish negligence on the
part of any defendant. "If no material factual disputes remain, sum-
mary judgment should be granted against a party who fails to make
a showing sufficient to establish the existence of an element essential
to that party’s case and on which the party bears the burden of proof
at trial." A Fisherman’s Best, Inc. v. Recreational Fishing Alliance,

, 190 (4th Cir. 2002) (citing Celotex Corp. v. Catrett,

(1986)). Accordingly, the district court’s grant of sum-
mary judgment on all claims as to all defendants was not erroneous.
                                                             AFFIRMED

quently used the ladder without event while it was in dry dock.
  3
   Hood v. Ryobi N. America, Inc., 

, 450 (D. Md.
1998), aff’d,181 F.3d 608 n.1 (4th Cir. 1999)("The elements of proof are
the same whether the claim be characterized as one for strict liability or
negligence ... or breach of warranty.")(citing Singleton v. Int’l Harvester
Co., 

, 117 (4th Cir. 1981); Watson v. Sunbeam Corp., 

, 387 n.3 (D. Md. 1993); Tauber v. Nissan Motor Corp.,
USA, 

, 1073 (D. Md. 1987); Jensen v. American
Motors, 

, 

, 247 (Md. Ct. Sp. App. 1981);
Frericks v. General Motors Corp., 

, 

(1975)).