Troy Boss v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 1993

UNPUBLISHED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

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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. (CA-
02-4082-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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,

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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

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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,

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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

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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.

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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

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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

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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.

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*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

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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

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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

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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

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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

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