[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 11-12885                NOVEMBER 18, 2011
                         Non-Argument Calendar               JOHN LEY
                       ________________________               CLERK


                D. C. Docket No. 8:09-cv-01892-JSM-TBM

ROBERT CANNIOTO,
BONNIE CANNIOTO, his wife,

                                                         Plaintiffs-Appellants,

                                  versus

LOUISVILLE LADDER, INC., a Delaware
corporation,
THE HOME DEPOT USA, INC., a Delaware
corporation,

                                                       Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (November 18, 2011)

Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.

PER CURIAM:
      This is an appeal from the district court’s order excluding the testimony of

plaintiff’s expert, Charles E. Benedict, Ph.D., and the grant of defendants

Louisville Ladder, Inc. and The Home Depot USA, Inc.’s motion for summary

judgment. The issues presented on appeal are: (1) whether the district court

abused its discretion in excluding the expert testimony of Dr. Benedict; and (2)

whether the district erred in finding that the plaintiffs were not entitled to a

Cassisi1 inference and in granting the defendant’s motion for summary judgment.

This court reviews the district court’s grant of summary judgment de novo. Fanin

v. U.S. Dept. of Veterans Affairs, 

, 871 (11th Cir. 2009). A district

court’s ruling excluding an expert witness under Rule 702 of the Federal Rules of

Evidence and Daubert v. Merrill Dow Pharmaceuticals, 

, 

(1993) is reviewed for an abuse of discretion. General Electric Co. v.

Joiner, 

, 

(1997); Rink v. Cheminova, 

(11th Cir. 2005).

      After reviewing the record, and reading the parties’ briefs, we first conclude

that the district court did not abuse its discretion in excluding the expert testimony

of the plaintiffs’ principal expert witness, Dr. Benedict. We agree with the district

court’s finding that Dr. Benedict’s failed test alone could support an exclusion of


      1
          Cassisi v. Maytag Co., 

(Fla. 1st DCA 1981).

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his testimony. We also agree with the district court’s finding that Dr. Benedict’s

new opinion set forth in his deposition testimony violated Federal Rule of Civil

Procedure 26(a)(2)(B) and (C).

      In Cassisi v. Maytag Company, 

(Fla. 1st DCA 1981), the

Florida appellate court held that a legal inference is created that a product was

defective at the time of injury or the time of sale when it malfunctions during

normal use. The district court in its well-reasoned order held that the Cassisi

inference is not applicable to this case because the ladder in question still existed

and had been inspected by the plaintiffs’ expert. Moreover, the plaintiffs did not

prove that the ladder malfunctioned as required by Cassisi. See Rink v.

Cheminova, 

n.9. Finally, the record demonstrates that the

plaintiff failed to subject the ladder to a normal operation. The ladder was set up

at too steep an angle at the time of Cannioto’s fall which, in turn, caused it to slide

as he climbed it. The record demonstrates that Cannioto also failed to secure the

top of the ladder. Accordingly, for the above-stated reasons, we affirm the district

court’s order granting the motion to exclude plaintiffs’ expert witness and the

grant of summary judgment in favor of the defendants.

      AFFIRMED.




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