author: WYNN, Circuit Judge:

text:
    Ashish SIJAPATI, Petitioner, v. Dana James BOENTE, Acting Attorney General, Respondent. Ashish Sijapati, Petitioner, v. Dana James Boente, Acting Attorney General, Respondent.
    No. 15-1204, No. 15-1804
    United States Court of Appeals, Fourth Circuit.
    Argued: October 25, 2016
    Decided: February 1, 2017

      ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Laura Halliday Hickein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Irina Manelis, DYER IMMIGRATION LAW GROUP, P.C., Henrico, Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before TRAXLER, KEENAN, and WYNN, Circuit Judges.
   WYNN, Circuit Judge:

Petitioner Ashish Sijapati, a native and citizen of Nepal, seeks review of an order by the Board of Immigration Appeals (“BIA”) finding him removable under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(i). That section authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years ... after the date of admission.” Id. (emphasis added).

Sijapati argues that the BIA erred in finding him removable under Section 237(a)(2)(A)(i) because his conviction on December 12, 2007, of a crime involving moral turpitude occurred more than five years after he was first admitted to the United States on January 25, 2001. But the BIA relied upon its decision in Matter of Alyazji, 25 I. & N. Dec. 397 (B.I.A. 2011), to determine that Sijapati’s relevant “date of admission” was January 18, 2003: the date he was most recently admitted to the United States after taking a brief vacation abroad. Because we accord Chevron deference to the BIA’s decision in Matter of Alyazji, we deny Sijapati’s petition for review.

I.

Sijapati first entered and was admitted to the United States on a nonimmigrant L-2 visa on January 25, 2001. On December 31, 2002, Sijapati departed the United States for a two-and-a-half week vacation to Nepal, reentering the United States on January 18, 2003, pursuant to his existing L-2 visa. On March 16, 2005, federal immigration officials approved Sijapati’s application for adjustment of status as a lawful permanent resident.

On December 12, 2007 — more than five years after Sijapati was first admitted into the United States on January 25, 2001, under the L-2 visa, but less than five years after his most recent admission on January 18, 2003, under that visa — a circuit court in Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month suspended sentence. Following his conviction, the Department of Homeland Security issued to Sijapati a Notice to Appear before the immigration court to face the charge of removability from the United States under Section 237(a)(2)(A)© of the INA for having been convicted of a crime of moral turpitude within five years of the date of admission. In response, Sija-pati moved to terminate the proceedings against him, arguing that his embezzlement conviction did not render him removable. The immigration court denied Sijapa-ti’s motion, finding that his embezzlement conviction constituted a crime involving moral turpitude which rendered him removable.

Sijapati then filed a renewed motion to terminate his removal proceedings which the immigration court construed to be a motion to reconsider its prior decision. In denying this second motion, the immigration court found that Alyazji controlled the determination of Sijapati’s date of admission, and thus, that Sijapati’s admission on January 18, 2003, was “the admission pursuant to which [he] was in the United States at the time that he committed the crime involving moral turpitude” — “but for which he [would not have been] present in the country.” A.R. 219. Accordingly, the immigration court declined to terminate Sijapati’s removal proceedings and ordered that he be granted voluntary departure in lieu of removal.

Sijapati appealed to the BIA, which adopted and affirmed the immigration court’s determination that the BIA’s reasoning in Alyazji “le[d] to the conclusion that January 18, 2003, is the relevant ‘date of admission’ in calculating ... whether [Sijapati] is removable under section 237(a)(2)(A)(i) of the [INA].” A.R. 67. From the BIA’s dismissal of his appeal, Sijapati timely filed a petition for review in this Court.

II.

Sijapati’s petition requires us to interpret the phrase “the date of admission” in Section 237(a)(2)(A)(i). “Matters of statutory construction present questions of law, which we generally review de novo.” Hosh v. Lucero, 680 F.3d 375, 378 (4th Cir. 2012). However, when called upon to review the BIA’s interpretation of a provision in the INA, we must keep in mind that we are “reviewing the considered judgment of the federal agency charged with interpreting and administering the statute at issue in this case.” Nwolise v. INS, 4 F.3d 306, 309 (4th Cir. 1993). As such, “the legal determinations of the [BIA] in interpreting the [INA] are entitled to deference by this court.” Id. To that end, the BIA’s interpretation of an ambiguous provision in the INA “must be given controlling weight unless th[at] interpretation ] [is] ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Fernandez v. Keisler, 502 F.3d 337, 344 (4th Cir. 2007) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Because Chevron deference “is accorded only when an ‘agency’s interpretation is rendered in the exercise of [its] authority [to make rules carrying the force of law],’ ” Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014) (alterations in original) (quoting A.T. Massey Coal Co. v. Barnhart, 472 F.3d 148, 166 (4th Cir. 2006)), we may not defer to the BIA’s unpublished decision denying Sijapati relief. However, when an unpublished decision lacking precedential weight relies on a precedential decision to which Chevron deference can apply — like Alyazji — the precedential decision “controls to the extent that ‘Congress has not directly addressed the precise question at issue’ and ‘the [BIA] ’s answer is based on a permissible construction of the statute.’ ” Hernandez v. Holder, 783 F.3d 189, 192 (4th Cir. 2015) (alteration in original) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that the BIA’s interpretation of an ambiguous statutory term should be accorded Chevron deference when the BIA “gives [the term] concrete meaning through a process of case-by-case adjudication” (internal quotation marks omitted) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987))).

Accordingly, we now consider whether Alyazji’s construction of “the date of admission” is entitled to deference under the familiar two-step inquiry set forth in Chevron. First, we consider “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If Congress’ intent is clear, our inquiry comes to an end — we and the BIA “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. However, if the statute is silent or ambiguous as to the specific issue, we must then determine “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

A.

“To resolve the initial inquiry under Chevron’s first step, we focus ‘purely on statutory construction without according any weight to the agency’s position.’ ” Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (quoting Mylan Pharm., Inc. v. FDA, 454 F.3d 270, 274 (4th Cir. 2006)). When interpreting a statute, we begin with the statute’s plain language, U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 350 (4th Cir. 2004), as “the plain language of the statute in question is ... the most reliable indicator of Congressional intent,” Soliman v. Gonzales, 419 F.3d 276, 281-82 (4th Cir. 2005).

In construing the statute’s plain language, “we must consider the context in which the statutory words are used because ‘[w]e do not ... construe statutory phrases in isolation; we read statutes as a whole.’ ” Ayes v. U.S. Dep’t of Veterans Affairs, 473 F.3d 104, 108 (4th Cir. 2006) (alteration in original) (quoting United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984)); see also Soliman, 419 F.3d at 282 (“We are obliged to look at the statutory language as a whole, construing each section in harmony .with every other part or section, because ‘Aet[s] of Congress ... should not be read as a series of unrelated and isolated provisions.’ ” (alteration in original) (quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995))).

Section 237(a)(2)(A)® provides that “[a]ny alien who — (I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added). Although the INA does not define the phrase “the date of admission,” the statute defines “admission” and “admitted” as, “with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).

Sijapati urges us to end our analysis at Chevron step one, arguing that the plain language of the statute unambiguously establishes that “Congress intended ‘the date of admission’ to correspond to the entry marking the commencement of an alien’s current or most recent period of admission.” Petitioner’s Br. at 23. Sijapati further contends that Congress did not intend “aliens in [his] position — ie., those who leave and reenter the country during an existing period of admission — to reset the five-year clock ... upon being readmitted to the United States.” Petitioner’s Reply Br. at 2. We disagree.

By using the definite article “the,” Congress made clear that “[t]here can be only one ‘the’ date [of admission]” for the purposes of Section 237(a)(2)(A)(i). Shivaraman v. Ashcroft, 360 F.3d 1142, 1148 (9th Cir. 2004). Yet we have previously recognized that “all aliens are ... deemed ‘admitted’ into the United States whenever entering the country from abroad ... unless Congress otherwise exempts them elsewhere in the statute.” Othi v. Holder, 734 F.3d 259, 267 (4th Cir. 2013) (emphasis added). Accordingly, unless otherwise exempted, Congress contemplated that aliens can have multiple admissions.

The INA is silent as to which admission should be used in determining an alien’s removability under Section 237(a)(2)(A)(i) in the event an alien has multiple admissions, like Sijapati. Therefore, we find that the phrase “the date of admission” is ambiguous. See Ojo, 813 F.3d at 539 (“[T]he meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.” (internal quotation marks omitted) (quoting King v. Burwell, 576 U.S. -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015))). “Having found the statute to be ambiguous, we proceed to the next step under Chevron to determine whether the [BIA’s] interpretation is a ‘permissible construction,’ and not ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Regis v. Holder, 769 F.3d 878, 883 (4th Cir. 2014) (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778).

B.

In reviewing the BIA’s interpretation under the second prong of Chevron, “[w]e generally give substantial deference to the BIA’s precedential decisions interpreting the INA, because ‘Congress conferred on the BIA decisionmaking power to decide such questions of law.’ ” Amos v. Lynch, 790 F.3d 512, 518 (4th Cir. 2015) (quoting Martinez, 740 F.3d at 909). In affording such deference, we “may not substitute [our] own construction of a statutory provision for a reasonable interpretation made by the [BIA].” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Thus, we must determine whether Alyazji reasonably interpreted the meaning of “the date of admission” in Section 237(a)(2)(A)(i).

In Alyazji, the BIA paid special attention to the phrase “within five years after the date of admission,” finding that the phrase’s narrow language — “a definite article (‘the’) and a singular object (‘date’)”— “most naturally connote[d] a single date.” 25 I. & N. Dec. at 405. After expressly “hold[ing] that the statutory phrase ‘the date of admission’ necessarily refers to a single date in relation to the pertinent offense,” the BIA went on to consider the issue of “which date of admission applies when confronted with an alien who has been admitted more than once.” Id. Concentrating on the statutory provision’s “focus[] on admission plus presence,” the BIA concluded that “the most natural reading of section 237(a)(2)(A)(i) is that the phrase ‘the date of admission’ refers to the date of admission by virtue of which the alien was present in the United States when he committed his crime.” Id. at 406.

In addition to interpreting the phrase at issue, the BIA also provided guidance regarding how “to ascertain an alien’s de-portability under section 237(a)(2)(A)(i) of the Act,” instructing immigration courts to

look first to the date when [the charged alien’s] crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.

Id.

We conclude that Alyazji’s construction of “the date of admission” in Section 237(a)(2)(A)(i) “is not ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Espinal-Andrades v. Holder, 777 F.3d 163, 169 (4th Cir. 2015) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778). In arriving at its interpretation, the BIA followed the normal principles of statutory construction, considering the statute’s “overall design” and “the language of the [moral turpitude] provision itself.” Id. (internal quotation marks omitted); see Alyazji, 25 I. & N. Dec. at 405-06 (“We must therefore arrive at a reasonable construction of the statute, taking into account the language and structure of the Act as a whole.”). The BIA also explained how its interpretation was informed by its own precedent and judicial constructions of the statute. Id. at 406 nn.6, 8. Additionally, the BIA considered an alternative construction — treating the date of an alien’s first admission as “the date of admission” — and reasonably concluded that such a construction “is not reconcilable with the language and purpose of the statute and would lead to ‘peculiar consequences’ when applied to aliens who were briefly admitted many years ago (such as tourists, perhaps) and who remained outside the United States for decades thereafter before being readmitted.” Id. at 406 n.6 (quoting In re Shanu, 23 I. & N. Dec. 754, 761 (B.I.A. 2005)).

Sijapati nonetheless argues that Aly-azji’s interpretation of “the date of admission” is unreasonable because such a construction “would lead to a patently absurd result” whereby “aliens who commit a [crime involving moral turpitude] within five years of their initial admission, but who are not immediately arrested and convicted, could preemptively defeat a future charge of deportability ... by simply leaving and reentering the country.” Petitioner’s Br. at 23-24. By contrast, the government asserts that, “in that scenario, if the alien seeking admission did not admit to committing the crime of moral turpitude ... then the alien could be paroled in for prosecution and charged with inadmissibility ... after the conviction.” Respondent’s Br. at 18. Alyazji did not address — much less decide — what constitutes “the date of admission” when an alien leaves and reenters the country after committing a crime of moral turpitude. And it is far from clear that Alyazji’s rule compels the result suggested by Sijapati. In such circumstances, we cannot say that Alyazji’s construction is unreasonable.

Moreover, even if “our ruling today [has] the unfortunate effect of rewarding [such] an alien,” as Sijapati suggests, “[a]s a court, ... we are obliged to give effect to the statutes as they are written and enacted.” Aremu v. Dep’t of Home land Sec., 450 F.3d 578, 583 n.6 (4th Cir. 2006); see also La. Pub. Serv. Comnn’n v. FCC, 476 U.S. 355, 376, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (“As we so often admonish, only Congress can rewrite [a] statute.”).

Sijapati further contests the reasonableness of Alyazji’s interpretation of “the date of admission” on the grounds that it unfairly disadvantages nonimmigrants by “automatically resetting the five-year clock every time a nonimmigrant happen[s] to travel abroad[,] ... subjecting] aliens to deportability under [Section 237(a)(2)(A)(i) ] decades after they beg[i]n residing in the United States.” Petitioner’s Reply Br. at 13. By contrast, the INA allows lawful permanent residents to make brief trips abroad without resetting their date of admission. See 8 U.S.C. 1101(a)(13)(C)(ii) (“An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien ... has been absent from the United States for a continuous period in excess of 180 days.... ”). However, Congress has time and time again made the decision to treat different classes of aliens differently. Here, Congress chose to provide nonimmi-grants with lesser privileges than lawful permanent residents — a reasonable policy decision. See Moore v. Ashcroft, 251 F.3d 919, 925 (11th Cir. 2001) (“different treatment between lawful permanent residents and nonresidents acknowledges that a lawful resident enjoys greater rights than a nonimmigrant alien.... ” (internal quotation marks omitted) (quoting Umanzor-Lazo v. INS, 178 F.3d 1286 (4th Cir. 1999) (per curiam) (unpublished))).

Because “[t]he BIA tethered its interpretation to traditional tools of statutory interpretation, and nothing leads this Court to conclude that its construction is unreasonable,” Espinalr-Andrad.es, 777 F.3d at 169, we find that the BIA’s interpretation of “the date of admission” in Matter of Alyazji is reasonable.

III.

In conclusion, we hold that the BIA’s interpretation of the statutory phrase “the date of admission” in Alyazji is entitled to Chevron deference. Accordingly, Sijapati’s January 18, 2003, re-entry into the United States — “the date of the admission by virtue of which [Sijapati] was present in the United States when he committed his crime” — constituted “the date of admission” for purposes of Section 237(a)(2)(A)(i). Alyazji, 25 I. & N. Dec. at 406. Sijapati committed a crime involving moral turpitude on December 12, 2007, within five years of January 18, 2003. Therefore, we deny Sijapati’s petition for review.

PETITIONS FOR REVIEW DENIED

       Following dismissal of his appeal, Sijapati filed with the BIA a motion for reconsideration, which relied on the same arguments Sijapati made in his dismissed appeal. The BIA denied Sijapati’s motion for reconsideration, and Sijapati petitioned this Court to review that decision as well. Because Sijapati's motion for reconsideration asserted the same arguments as those raised in his first appeal, we deny that petition for review as well.


source: Caselaw Access Project

author: TRAXLER, Circuit Judge:

license: Public Domain

text:
    Howard E. NEASE; Nancy Nease, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant-Appellant.
    No. 15-1950
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: February 1, 2017

      ARGUED: Jonathan D. Hacker, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Larry Lee Javins, II, BAILEY, JAVINS & CARTER, L.C., Charleston, West Virginia, for Appellees. ON BRIEF: Andrew B. Cooke, FLAHERTY, SENSABAUGH & BONASSO, PLLC, Charleston, West Virginia; Bradley N. Garcia, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Tony L. O’Dell, TIANO O’DELL, PLLC, Charleston, West Virginia, for Appellees.
    Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
   TRAXLER, Circuit Judge:

Howard and Nancy Nease commenced this product liability action against Ford Motor Company, alleging that Howard suffered serious injuries in an accident caused by a design defect in the speed control system of his 2001 Ford Ranger pickup truck. Over Ford’s objection, the Neases offered the expert testimony of Samuel Sero that the speed control cable in the 2001 Ranger is susceptible to getting stuck or “bound” while the throttle to which it is linked is in the open position, thus preventing the driver from slowing down the vehicle. The Neases claim that this is precisely what happened while Howard was driving his 2001 Ranger. A West Virginia jury awarded the Neases $3,012,828.35 in damages. Ford made several post-trial motions, including a motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure. In its motion, Ford renewed its pre-trial argument that Sero’s testimony was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and should have been excluded. In the alternative, Ford sought a new trial on the basis that the district court erroneously instructed the jury on strict liability under West Virginia law and erroneously admitted evidence of prior incidents involving Ford vehicles.

The district court denied Ford’s post-trial motions. Ford now appeals. For the reasons that follow, we conclude that Sero’s testimony should not have been admitted. And, without any other expert testimony to establish that the 2001 Ford Ranger was defectively designed and that there were safer alternative designs available that a reasonably prudent manufacturer would have adopted, the Neases cannot prove their case under West Virginia law. Accordingly, we must reverse and remand for entry of judgment in Ford’s favor.

I.

On November 20, 2012, Howard was driving his recently purchased, used 2001 Ford Ranger pickup truck on U.S. Route 60 in St. Albans, West Virginia. According to Howard, he was traveling 45-50 mph when he discovered his vehicle would not slow down when he released the accelerator pedal. He tried to slow the pickup truck by applying the brakes, but to no avail. In order to avoid running into pedestrians or other cars, Howard turned the Ranger off the road, drove over a curb, and crashed into a brick car wash building. For about 25-30 seconds after the pickup truck hit the brick wall, the tires reportedly continued spinning until the engine shut down. Howard’s Ranger had approximately 116,000 miles on it at the time of the accident, and there is no indication in the record that the vehicle had ever manifested problems with the accelerator, cruise control or throttle. The Neases thereafter filed this action against Ford Motor Company, alleging that Ford defectively designed the accelerator pedal-to-throttle assembly of the 2001 Ranger pickup tr,uck. The complaint asserted causes of action for strict liability, negligence, and breach of warranty.

A.

The general design and function of the throttle control system in the 2001 Ford Ranger is typical of any modern passenger vehicle. The driver controls engine speed by depressing the accelerator pedal, which is linked to the throttle, which, in turn, regulates the amount of air flowing into the engine. When the accelerator pedal is depressed, the throttle opens and engine speed increases; when the accelerator pedal is released, the throttle closes, airflow is restricted and engine speed decreases.

In the 2001 Ford Ranger, the accelerator pedal is linked to the throttle body by a steel accelerator cable. The accelerator cable is attached to a lever on the throttle body; the lever operates the throttle valve and the throttle valve controls the engine’s air intake. As “the accelerator pedal is depressed, the accelerator cable [which is attached to the throttle lever] is pulled to open the throttle [valve] and increase the engine speed.” J.A. 83. In essence, the accelerator pedal, the accelerator cable and the throttle lever form a pulley system that opens the throttle. As a safety .feature, the throttle lever is equipped with return springs that exert 7.2 pounds of continuous force to pull the throttle closed when the driver takes his foot off of the accelerator.

In addition to the accelerator pedal-to-throttle assembly, another means by which the driver of a 2001 Ranger can open the throttle is the cruise control system. This system is operated by a “speed control actuator and [a] speed control cable.” J.A. 85. The cruise control system incorporates an electric motor that operates a steel cable — the speed control cable — to open and close the throttle. The speed control cable and the accelerator cable are attached to the same throttle lever/pulley system that operates the throttle valve. When the speed control actuator receives input from the cruise control switch on the steering column, the motor manipulates the speed control cable to pull the throttle lever independently of the main accelerator cable.

The throttle control design takes into account that both cables are attached to the same throttle lever/pulley-system. In order to prevent significant stress to the speed control cable that could potentially occur when the cruise control is not engaged and the throttle lever is being controlled by the accelerator pedal and cable, Ford incorporated a “ ‘lost motion’ configuration” for the speed control cable assembly. J.A. 85. In this design, the steel speed control cable runs from the motor in the speed control actuator through a plastic “guide tube,” and is attached to the throttle lever by a plastic “connector.” Id. The connector and the guide tube move with the throttle lever when it is being operated by the accelerator cable. The speed control cable itself stays stationary while the guide tube moves up and down the cable and in and out of a stationary plastic casing tube, called a “casing cap,” which is attached to the motor. Id. The gap between the moving guide tube and the stationary casing cap is approximately 0.04 inches.

B.

Following the accident, plaintiffs hired Samuel Sero, an electrical engineer, to examine the engine and the throttle assembly in Howard’s 2001 Ford Ranger. Sero approached his examination with the view that in failure-to-decelerate cases, the issue is often one of “mechanical binding” and that a post-accident investigation should “look at the accelerator cable, [to] see if there’s anything on it that bound up and prevented it from closing the throttle when the accelerator pedal was released, looking for ... any kind of grime, grit, or anything that could bind that one.” J.A. 613. Sero indicated that a post-accident investigation should therefore look for the presence of contaminants and particles that could lodge between the speed control guide tube and the casing cap and create a “wedging effect.” J.A. 628. Sero used a borescope to inspect the speed control assembly.

A borescope is essentially a fiber-optic tube equipped with a light that a mechanic or an engineer can insert into an inaccessible area of the engine and view a given component without having to disassemble the engine. When he examined the speed control cable in the Neases’ pickup, Sero did not find any materials wedged between the guide tube and the cap. In fact, he noted that the speed control cable moved freely. Nevertheless, Sero concluded that contaminants had entered and built up in the casing cap over time, causing the guide tube to stick and, therefore, the throttle plate to remain open. Sero testified that he was able to identify “a lot of contaminant ... deposited” in the casing cap, J.A. 636, and “along the guide tube,” J.A. 631. Sero also noticed “gouges or striations” on the guide tube. J.A. 646. From this observation, Sero believed that there had been “a rough, abrasive material between the ... interior of the [casing] cap tube and the surface of the guide tube,” indicative of binding. J.A. 645. Sero surmised that sufficient debris had accumulated to create the “wedging effect” needed to keep the throttle open after the accelerator pedal was released. However, Sero had no way of knowing precisely how much contaminant was present in the casing cap or whether it was enough to lodge in the 0.04 inch-gap between the cap and the guide tube such that the throttle would be stuck in the open position. The borescope is simply a viewing tool; it does not afford a means for determining the amount of the contaminant that can be seen with the device.

To bolster his opinion, Sero pointed to a document Ford had prepared in 1987 identifying potential risks Ford engineers should consider addressing in the design of particular vehicles in the future. This document is called a Failure Mode and Effects Analysis (“FMEA”). According to Ford’s “Potential Failure Mode and Effects Analysis” Handbook, “[a]n FMEA can be described as a systemized group of activities intended to: (a) recognize and evaluate the potential failure of a product/process and its effects, (b) identify actions which could eliminate or reduce the chance of the potential failure occurring, and (c) document the process.” J.A. 968. The primary purposes of an FMEA include “identify[ing] potential failure modes and rat[ing] the severity of their effects” and “helping] engineers focus on eliminating product and process concerns and helping] prevent problems from occurring.” Id. An FMEA “is meant to be a ‘before-the-event’ action, not an ‘after-the-fact’ exercise.” Id.

Sero testified that the 1987 FMEA “directly addresse[d] the fact [that] dirt, grease or ice has formed between cable and cable sheath” and therefore demonstrated that “Ford [was] well aware of the problem of binding in the lost motion device/cruise cable.” J.A. 52. Sero asserted therefore that the 1987 FMEA proved the speed control assembly in the 2001 Ford Ranger was susceptible to binding. Sero was apparently unaware, however, that the 1987 FMEA did not even apply to the 2001 Ford Ranger. The 1987 FMEA “dealt with a vacuum-actuated speed control system” that was not present in the 2001 Ranger. J.A. 1260.

Based on his borescope exam and the 1987 FMEA, Sero opined that the 2001 Ford Ranger’s design was not reasonably safe and that there were several alternative designs that Ford could have utilized in the design of the speed control assembly:

It is my opinion, ... within a reasonable degree of engineering certainty that ...
1. Mr. Nease’s 2001 Ranger experienced a failure to decelerate by reason of the binding of the lost motion portion of the cruise ... cable while the throttle was substantially open;
2. The cable design employed by Ford in the subject 2001 Ranger permits dirt, grease and grime to enter the conduit through which the cable passes and is known to cause sticking or binding of the cable;
3. The subject cable is defectively designed;
4. The binding of the cable ... was caused by particles of dirt and/or debris typically found under the hood of motor vehicles;
5. The open-throttle condition ... almost immediately deplete[d] the vacuum assist to the brakes;
6.. The open-throttle condition, accompanied by loss of vacuum assist, required the application of brake pedal forces beyond the physical capabilities of Mr. Nease;
7. The binding of the defectively-designed cable was the proximate cause of the crash of the Nease vehicle;
8. Safer, feasible alternative designs were available and known to Ford Motor Company at the time the 2001 Ranger was manufactured.

J.A. 53-54.

Prior to trial, Ford moved to exclude Sero’s opinions under Daubert on the grounds that Sero’s opinions were not based on any reliable methodology and that Sero had not established through testing or other means, such as scientific literature, that the binding of the speed control assembly could actually occur. See Daubert, 509 U.S. at 597, 113 S.Ct. 2786 (explaining that the district court must “en-sur[e] that an expert’s testimony ... rests on a reliable foundation” (emphasis added)). Ford also argued that Sero, as an electrical engineer, was unqualified to render an expert opinion on matters of automotive design. The district court denied Ford’s motion to exclude Sero’s testimony, concluding that Sero was sufficiently qualified by means of his experience “designing] and operating] ... mechanical systems in a variety of settings.” J.A. 525. The court also determined that in arriving at his opinion, Sero employed “standard engineering methodology to conduct his physical inspection and reach his opinions.” Id. This methodology included “physically inspecting the vehicle’s parts, understanding how they are designed to operate, observing evidence of whether some material interfered with the operation of the cable, and opining how that could and did occur here.” Id. at 526.

The case proceeded to trial and Sero offered his opinions. Ford attacked Sero’s opinions on cross examination and offered its own expert testimony. Sero acknowledged that when he performed his inspection of the speed control cable in the Neas-es’ Ranger, he did not find any materials actually wedged between the guide tube and cap, and he noted that the speed control cable moved freely. Sero further admitted that he had never actually found a bound speed cable assembly in any vehicle that he had inspected.

In contrast to Sero’s professed inability to determine how much debris was present in the casing cap (because the borescope does not provide a way to determine the scale of the contaminants), Ford’s experts performed tests on the Neases’ vehicle and were able to quantify the size of the contaminants found on the Ranger’s guide tube. Dr. Steven MacLean, an expert in the field of mechanical engineering, used a scanning electron microscope to determine that “the thickest region ... [found] on Mr. Nease’s guide tube ... was approximately 50 microns in thickness,” J.A. 2438. For perspective, Dr. MacLean explained that a piece of paper is about 60 microns thick, making it 10 microns thicker than the contaminants found on the guide tube in the speed control assembly. Either one is far smaller than the .04 inch gap between the casing cap and guide tube. And, with respect to the gouge marks Sero noticed during the borescope exam that he believed were indicative of binding, Dr. MacLean testified that his analysis indicated that these marks “are from the manufacturing process, the molding process of these parts,” not “a binding event.” J.A. 2419.

Sero agreed that he had never conducted any testing to determine whether enough debris could accumulate in the casing cap during normal operation to resist the 7.2 pounds of force exerted by the return spring and to cause the throttle to stick open. Sero simply relied upon his observations during the borescope exam, which was videotaped. At trial, however, Sero was unable to distinguish between the video of the Nease borescope and a borescope exam for a previous case in which Sero had testified that the speed control cable did not bind. He could not tell the borescope of the cable that he said did bind from the borescope of the cable that he said did not bind. In other words, he could not tell one from the other.

With regard to the FMEA process that was so central to Sero’s opinion, Ford presented evidence that potential failure modes identified in the FMEA had not occurred during actual vehicle operation. For example, Dr. MacLean explained that a FMEA is a common “engineering tool,” J.A. 2475, used before marketing a new product to the public to “proactively try to determine what are all of the possible failure modes for that particular new design.” Id. According to MacLean, an FMEA is not a record of existing problems but rather “a forward-looking tool for ... a new product.” J.A. 2481. When an FMEA is performed, the manufacturer “bringfs] in design engineers, analysis engineers, manufacturing engineers, people from all different disciplines, and ... [the group tries] to come up with a very comprehensive and exhaustive list of failure modes.... [and seek to determine] how likely it is to occur, and what does my system do to possibly detect it and prevent it from happening.” J.A. 2475. Similarly, Karl Stopsehinski, a registered professional engineer and member of the Society of Automotive Engineers, testified that the FMEA process is akin to a “brainstorming session” to “identify any potential failure modes.” J.A. 2157 (emphasis added). Additionally, Ford’s engineering experts indicated that the 1987 FMEA on which Sero relied did not even apply to the Neases’ 2001 Ranger pickup truck. Rather, James Engle, a design analysis engineer, indicated that it is the 2004 FMEA that applies to the 2001 Ranger because it was “originated in February of ’97 and carried forward.” J.A. 1265.

Finally, Sero testified that several alternative speed control cable designs were available at the time and that Ford could have made the 2001 Ranger safer by incorporating one of these designs. He admitted, however, that he had not tested any of these alternative designs to determine whether any of them would have prevented the accident in question. In Sero’s opinion, testing of the alternative designs he identified was unnecessary because the designs had been in use in other vehicles for years and were therefore “proven commo-ditfies].” J.A. 717.

The district court instructed the jury that on plaintiffs’ strict liability claim, plaintiffs had to prove that the design of the 2001 Ford Ranger was not “reasonably safe for its intended use.” J.A. 1922. Although the court explained that the “plaintiffs are only entitled to a reasonably safe product, not to an absolutely safe product,” the court then instructed, over Ford’s objection, that “[i]f a product can be made safer and the danger may be reduced by an alternative design at not substantial increase in price, then the manufacturer has a duty to adopt such a design.” Id. During closing argument, plaintiffs’ counsel highlighted the safer alternative design instruction:

... If a product can be made safer and the danger reduced by an alternative design or device at no substantial increase in cost, then the manufacturer has a duty to adopt such design. All that means is if you find that one of the other designs was safer and it wasn’t going to cost very much ... [t]hen you can find that Ford breached its duty.

J.A. 1960.

The jury returned a verdict for the Neases on the strict liability count and awarded damages of $3,012,828.35. The jury returned defense verdicts on the negligence and breach of warranty counts.

After trial Ford filed a Renewed Motion for Judgment as a Matter of Law pursuant to Rule 50(b). First, Ford argued that “there was insufficient evidence to support the jury’s verdict for strict liability because the claim was dependent upon the testimony of Plaintiffs’ expert ... Sero.” J.A. 3477. And, Ford argued, as it had prior to trial, that Sero’s testimony should not have been admitted because Sero was unqualified to testify as an expert and that Sero’s opinions should have been excluded under Daubert. Specifically, Ford argued that “Sero never demonstrated unidirectional binding of Mr. Nease’s speed control cable, he did not attempt to simulate his theory, he did not conduct any tests that a foreign substance could withstand the seven-pound spring pressure, [and] he did not demonstrate alternative designs were equally or more safe.” J.A. 3478. The district court denied the Rule 50 motion, concluding that Sero’s methodology was reliable because he used the FMEA methodology used by Ford and that the bore-scope examination was “consistent and trustworthy and what historically [was] used in failure to decelerate cases.” J.A. 3479.

Alternatively, Ford moved for a new trial pursuant to Rule 59(a)(1)(A), arguing that the verdict should be set aside because the district court issued an improper “duty to adopt” jury instruction as to safer alternative designs. Ford also contended that the district court erroneously admitted evidence of other incidents involving Ford vehicles with an allegedly defective speed control assembly unit. The district court denied the motion for a new trial on both grounds. The court did not expressly reject Ford’s position that the “duty to adopt” instruction was incorrect under West Virginia law. Instead, the district court concluded that even if the jury instruction was erroneous, it was harmless because the jury found that the product was defective and not reasonably safe, and thus the jury did not need to reach the question of the duty to adopt a safer alternative design. Additionally, the district court noted that the jury instructions were otherwise correct and informed the jury that the Neases were not entitled to an absolutely safe product. Finally, the district court ruled that even if the admission of evidence regarding other incidents was erroneous, it was harmless in view of court’s limiting instruction to the jury that it “only consider the alleged other incidents for the limited purpose of determining whether Ford had notice of the defect” and not “as evidence that the 2001 Ford Ranger was defective.” J.A. 3486.

Ford appeals, arguing that the district court incorrectly admitted Sero’s expert testimony in contravention of the requirement that such testimony be reliable under Daubert and its progeny; that the district court’s erroneous “duty to adopt” jury instruction was not harmless in view of the fact that it was the only instruction that counsel for Nease highlighted in his closing argument to the jury; and that the erroneous admission of other incident evidence was not rendered harmless by the district court’s limiting instruction because the limiting instruction did not apply to the other incidents at issue. To resolve this appeal, we need only address Ford’s Dau-bert argument.

II.

Ford contends that the district court erroneously denied its motion to exclude Sero’s opinion that Ford’s design of the speed control assembly in the 2001 Ford Ranger was defective and that Ford could have used a different design that would have prevented Nease’s accident. We review the district court’s application of Daubert for abuse of discretion. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 260 (4th Cir. 2005). “If the district court makes an error of law in deciding an evidentiary question, that error is by definition an abuse of discretion.” Id. (internal quotation marks omitted). A district court likewise abuses its discretion in deciding a Daubert challenge if its conclusion “rests upon a clearly erroneous factual finding.” Bryte ex rel. Bryte v. American Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005).

A. Daubert’s Applicability

We first must visit the question of whether Daubert even applies under these circumstances. The Neases insist that it does not. We disagree; Daubert clearly applies here.

In Daubert, the Supreme Court addressed an evidentiary issue that had long divided federal courts — whether the admissibility of expert scientific testimony was governed by the “general acceptance” test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), or the later-adopted standards set forth in Federal Rule of Evidence 702, see 509 U.S. at 586-87 & n.5, 113 S.Ct. 2786. Daubert held that the Federal Rules of Evidence superseded Frye and that the admissibility of scientific evidence no longer was limited to knowledge or evidence “generally accepted” as reliable in the relevant scientific community. See 509 U.S. at 588-89, 113 S.Ct. 2786.

Thus, Daubert made clear that the governing standard for evaluating proposed expert testimony was set forth in Rule 702, which at the time provided: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Daubert, 509 U.S. at 588, 113 S.Ct. 2786. Implicit in the text of Rule 702, the Daubert Court concluded, is a district court’s gatekeeping responsibility to “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597, 113 S.Ct. 2786 (emphasis added).

Relevant evidence, of course, is evidence that helps “the trier of fact to understand the evidence or to determine a fact in issue.” Id. at 591, 113 S.Ct. 2786 (internal question marks omitted). To be relevant under Daubert, the proposed expert testimony must have “a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592, 113 S.Ct. 2786.

With respect to reliability, the district court must ensure that the proffered expert opinion is “based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.” Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999). Daubert offered a number of guideposts to help a district court determine if expert testimony is sufficiently reliable to be admissible. First, “a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” 509 U.S. at 593, 113 S.Ct. 2786. A second question to be considered by a district court is “whether the theory or technique has been subjected to peer review and publication.” Id. Publication regarding the theory bears upon peer review; “[t]he fact of publication (or lack thereof) in a peer reviewed journal will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.” Id. at 594, 113 S.Ct. 2786. Third, “in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error.” Id. Fourth, despite the displacement of Frye, “ ‘general acceptance’ ” is nonetheless relevant to the reliability inquiry. Id. “Widespread acceptance can be an important factor in ruling particular evidence admissible, and a known technique which has been able to attract only minimal support with the community may properly be viewed with skepticism.” Id. (citation and internal quotation marks omitted). Daubert’s list of relevant considerations is not exhaustive; indeed, the Court has cautioned that this “list of specific factors neither necessarily nor exclusively applies to all experts or in every case,” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and that a trial court has “broad latitude” to determine whether these factors are “reasonable measures of reliability in a particular case,” id. at 153, 119 S.Ct. 1167.

The Neases contend that we can affirm because the district court was not obliged to perform its Daubert gatekeep-ing function in the first place: “Because' the Daubert test for assessing the validity of scientific evidence applies only to novel scientific testimony, it does not apply in the expert field of engineering.” Brief of Appellees at 29. This bifurcated argument is dead wrong on both counts.

First, Daubert itself makes clear that its application is not limited to newfangled scientific theory, explaining that “we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence.” Daubert, 509 U.S. at 592 n.11, 113 S.Ct. 2786. The Court recognized the common-sense premise that “well-established propositions are less likely to be challenged than those that are novel,” id. but clearly never suggested that longstanding theories are immune to a Daubert analysis.

Second, the Supreme Court made clear more than 17 years ago in Kumho Tire that Daubert was not limited to the testimony of scientists but also applied “to testimony based on ‘technical’ and ‘other specialized’ knowledge.” 526 U.S. at 141, 119 S.Ct. 1167. Despite having cited Kum-ho Tire in their brief, the Neases are apparently unaware that the very issue there involved the application of Daubert to the testimony of a mechanical engineer. See id. at 141, 119 S.Ct. 1167 (“This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists.” (emphasis added)). The Kumho Court concluded that Rule 702 “applies to all expert testimony” as its “language makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge. It makes clear that any such knowledge might become the subject of expert testimony.” Id. at 147, 119 S.Ct. 1167. The Kumho Court affirmed the district court’s application of Daubert and decision to exclude the engineering expert’s testimony as unreliable. See id. at 158, 119 S.Ct. 1167. And, finally, if Kumho were not enough, this court has also sanctioned the application of Daubert to assess the reliability of expert engineering testimony. See Oglesby, 190 F.3d at 250-51 (affirming district court’s application of Daubert principles to testimony of a mechanical engineer and concluding that the district court did not abuse its discretion in excluding the engineer’s opinion as unreliable).

Accordingly, we conclude that Daubert most certainly applies to Sero’s testimony. We now turn to consider whether, under Daubert, the district court properly admitted Sero’s testimony.

B. The District Court’s Application of Daubert to Sero’s Opinions

As we already explained, Rule 702 imposes a special gatekeeping obligation on the trial judge to ensure that an opinion offered by an expert is reliable. And although a trial judge has broad discretion “to determine reliability in light of the particular facts and circumstances of the particular case,” Kumho, 526 U.S. at 158, 119 S.Ct. 1167, such discretion does not include the decision “to abandon the gatekeeping function,” id. at 158-59, 119 S.Ct. 1167 (Scalia, J., concurring).

In ruling on Ford’s motion in li-mine to exclude Sero’s testimony as unreliable under Daubert, the district court simply dismissed “[e]very argument raised by [Ford]” as “go[ing] to the weight, not admissibility, of [Sero’s] testimony.” J.A. 526. The court- did not use Daubert’s guideposts or any other factors to-assess the reliability of Sero’s testimony, and the court did not make any reliability findings. Indeed, the district court referred neither to Rule 702 nor to Daubert. We are forced to conclude that the court abandoned its gatekeeping function with respect to Ford’s motion in limine.

In denying Ford’s post-trial Rule 5003) motion for judgment as a matter of law (which renewed Ford’s argument that Sero’s opinion should have been excluded under Daubert), the district court again “[found] that Ford’s arguments go to the weight the jury should afford Mr. Sero’s testimony, not its admissibility.” J.A. 3481. Although the district court this time cited Daubert and stated that, according to Sero, “the methodology he employed is consistent and trustworthy and what historically is used in failure to decelerate cases,” J.A. 3479, the court repeatedly emphasized that Ford effectively raised its objections to Sero’s opinion through cross-examination. For the district court to conclude that Ford’s reliability arguments simply “go to the weight the jury should afford Mr. Sero’s testimony” is to delegate the court’s gatekeeping responsibility to the jury. “The main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony.” In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). The district court’s “gatekeeping function” under Daubert ensures that expert evidence is sufficiently relevant and reliable when it is submitted to the jury. Rather than ensure the reliability of the evidence on the front end, the district court effectively let the jury make this determination after listening to Ford’s cross examination of Sero.

In sum, the district court did not perform its gatekeeping duties with respect to Sero’s testimony. The fact that an expert witness was “subject to a thorough and extensive examination” does not ensure the reliability of the expert’s testimony; such testimony must still be assessed before it is presented to the jury. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005). Thus, we are of the opinion that the district court abused its discretion here “by failing to act as a gatekeeper.” Id.; see Kumho, 526 U.S. at 158-59, 119 S.Ct. 1167 (Scalia, J. concurring) (“[T]rial-court discretion in choosing the manner of testing expert reliability ... is not discretion to abandon the gatekeeping function ... [or] to perform the function inadequately.”).

C. Sero’s testimony should have been excluded under Daubert

1. Sero’s testimony that the speed control assembly was not reasonably safe because it was susceptible to binding

“[A] plaintiff may not prevail in a products liability case by relying on the opinion of an expert unsupported by any evidence such as test data or relevant literature in the field.” Oglesby, 190 F.3d at 249 (internal quotation marks omitted). “A reliable expert opinion must [not] be based ... on belief or speculation.” Id. at 250. One especially important factor for guiding a court in its reliability determination is whether a given theory has been tested. According to Daubert, “a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” 509 U.S. at 593, 113 S.Ct. 2786.

Sero’s opinion had three critical components: that the speed control assembly in the 2001 Ford Ranger was .vulnerable to binding because the design allowed for contaminant to lodge between the speed control- guide tube and the casing cap; that such binding in fact occurred while Howard was. driving his 2001 Ranger, resulting in the accident; and that there were safer alternative speed control assembly designs available to Ford for use in the 2001 Ranger.

Testing was of critical importance in this case as Sero conceded that the speed control cable in the Neases’ Ranger was not bound or wedged; the cable “moved freely” when Sero performed a post-accident inspection of the Neases’ Ranger. J.A. 676. In fact, Sero admitted he has never seen any vehicle with “post-crash binding.” J.A. 679. Sero, however, conducted no testing whatsoever to arrive at his opinion. Specifically, he has never tested a 2001 Ford Ranger to determine whether it is actually possible for enough debris to accumulate in the casing cap during normal operation to resist the 7.2 pounds of force exerted by the return springs to pull the throttle closed. Sero conceded that he never ran any tests to confirm his theory:

Q. Now, as I understand it, ... you have not demonstrated your unidirectional binding theory on Mr. Nease’s speed control cable, have you?
A. No, I have not.
Q. You have not even attempted to simulate your speed control binding theory on Mr. Nease’s speed control cable, have you?
A. No.
Q. You have not demonstrated your unidirectional binding theory [using] another 2001 Ford Ranger, have you?
A. No.
Q. You have not even attempted to simulate your speed control malfunction theory with an exemplar 2001 Ford Ranger, have you?
A. No, I have not.

J.A. 678.

Sero’s failure to test his hypothesis renders his opinions on the cause of Howard’s accident unreliable. Although Sero’s theory is plausible and “may even be right[J ... it is no more than a hypothesis, and it thus is not knowledge, nor is it based upon sufficient facts or data or the product of reliable principles and methods applied reliably to the facts of the case.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 670 (6th Cir. 2010) (internal quotation marks and alterations omitted). Generally, scientific methodology involves “generating hypotheses and testing them to see if they can be falsified.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Sero presented a hypothesis only — he failed to validate it with testing.

Daubert is a flexible test and no single factor, even testing, is dispositive. But Daubert’s other reliability markers likewise suggest that Sero’s testimony should not have been admitted under Rule 702. Sero has not published or otherwise subjected his theory to peer review. Actually, it would hardly be possible to solicit peer review since Sero conducted no tests and used no “methodology” for reaching his opinions other than merely observing dirt on the speed control assembly components. And, for this same reason, we cannot assess the potential rate of error of Sero’s methodology — he did not employ a particular methodology to reach his conclusions.

Daubert also suggests that district courts, in performing their gatekeeping functions, consider whether and to what extent an expert’s theory has been accepted within the relevant scientific or engineering community. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. Despite their contention that Daubert does not apply, the Neases nonetheless suggest that the internal FMEA performed by Ford in 1987, which Sero relied upon to support his opinion, is widely accepted by engineers— Ford’s own engineers in this case- — -as a method for identifying design defects. The FMEA relied upon by Sero, however, does not establish that Sero’s theory is widely accepted in the relevant engineering community.

To begin with, the 1987 FMEA does not even apply to the 2001 Ranger; rather, the 2004 FMEA, which originated in 1997, applied to the 2001 Ranger at issue here. In other words, Sero rests his theory on an FMEA produced for different designs. The 1987 FMEA, therefore, lacks a “valid scientific connection to the pertinent inquiry,” Daubert, 509 U.S. at 592, 113 S.Ct. 2786, and is not “relevant to the task at hand,” id. at 597, 113 S.Ct. 2786.

Moreover, to the extent Nease claims the FMEA performed by Ford in 1987 proves that the speed cable is susceptible to binding, he misconstrues the nature of the FMEA process. FMEA is part of the design process itself.; design engineers follow this method well before the design is complete to “identify potential failure modes and rate the severity of their effects” and “help engineers focus on eliminating product and process concerns and help prevent problems from occurring.” J.A. 968. As Ford engineer James Engle explained, “[t]he purpose [of] the FMEA is to analyze the [current] design ... [and] give[] the engineer information beforehand ... to let the engineer know areas where he needs to focus.” J.A. 1279. It is a “brainstorming session” performed on the front end of the design process to “identify any potential failure modes.” J.A. 2157. And, in this ease, because it is “conceivable” that “grime or some sort of debris [could] enter[] into the cable and caus[e] sticking,” Ford naturally listed the potential binding of the speed control cable “in a brainstorming session of [potential] failure modes.” J.A. 2157. But Ford included numerous “mitigating” features in its final design, such as an engine cover, aimed at eliminating potential problems identified in the FMEA. J.A. 2157. Ford also placed the throttle “high up on the engine” to mitigate the intake of “[b]igger and heavier particles [which] take more force to be ... moved up ... to the top of the engine.” J.A. 2157-58. Additionally, the components of the speed control assembly were made of nylon that had a slippery quality and “a very low coefficient of friction.” J.A. 2433.

In sum, the FMEA relied upon by Sero cannot be viewed as having established that the binding of the speed control cable was a recurring design problem in the 2001 Ranger. And it cannot be used as a proxy for the testing that Sero failed to do. Ford’s FMEA process merely identifies conceivable design failures; it does not produce them via testing.

2. Sero’s testimony that there were safer alternative designs that Ford could have used in the 2001 Ranger

To establish strict liability under West Virginia law, the plaintiff must show that the “product is defective in the sense that it is not reasonably safe for its intended use.” Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666, 683 (1979). “The standard of reasonable safeness is determined ... by what a reasonably prudent manufacturer’s standards should have been at the time the product was made.” Id. Significantly, the West Virginia Supreme Court explained that the determination of what a “reasonably prudent manufacturer’s standards should have been at the time” requires a consideration of “the general state of the art of the manufacturing process, including design.” Id. (emphasis added).

Ford argues that West Virginia law, as articulated by the Momingstar court, therefore requires a products liability plaintiff to prove that a reasonably prudent manufacturer would have adopted a safer design during the relevant time period. The Neases disagree, relying on a couple of district court opinions that suggest the West Virginia Supreme Court “has not stated one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product.” Mullins v. Ethicon, Inc., 117 F.Supp.3d 810, 821 (S.D.W. Va. 2015) (internal quotation marks omitted); Keffer v. Wyeth, 791 F.Supp.2d 539, 547 (S.D.W. Va. 2011).

While it is true that West Virginia law on the matter is not crystal clear, we agree with Ford that Morningstar “can only be read to require the production of evidence on reasonable alternative design, to gauge what ‘should have been.’ ” Restatement (Third) of Torts: Products Liability § 2, Reporter’s Note (1998). Although Morningstar does not use the phrase “alternative design,” a plaintiff in a design case, for all practical purposes, must identify an alternative design in order to establish the “state of the art.” See Church v. V.R. Wesson, 182 W.Va. 37, 385 S.E.2d 393, 396 (1989) (holding plaintiff in a defective design case failed to establish a prima facie case because plaintiffs expert identified an alternative design that was not feasible at the time of manufacture and thus failed to prove that defendant’s design was not “state of the art”).

Sero testified that safer, proven design alternatives existed during the relevant time period that would have prevented Howard’s accident. One preferable alternative, according to Sero, incorporates a “nipple wipe” to clean contaminants off the cable as it moves. Another alternative identified by Sero utilizes a “boot” which blocks debris and grime from accumulating on the cable. And, a third alternative design that Sero believed would have prevented Howard’s accident simply had a larger gap between the guide tube and the casing cap. Sero pointed out that Ford had been using all of these alternative design features for many years by the time the 2001 Ranger was produced.

Sero, however, performed no tests or studies to determine whether, in fact, these older, long-standing designs were involved in fewer binding incidents. According to Sero, such tests were unnecessary because designs such as the nipple wipe had been in use for 50 years and therefore were “proven elements.” J.A. 669. Similarly, he offered no data from any other studies or accident records to prove that the older designs were less likely to bind than the one incorporated in the Neases’ 2001 Ranger. Sero instead simply proclaimed without any support that the alternative designs he identified were safer than the design of the speed control cable assembly in the 2001 Ranger.

This testimony should have been excluded as it was “unsupported by any evidence such as test data or relevant literature in the field.” Oglesby, 190 F.3d at 249 (internal question marks omitted). The fact that the alternatives have generally been in use for decades is wholly insufficient to prove that such designs were safer with respect to the alleged binding incident and that reasonably prudent manufacturers would have adopted them.

III.

Without Sero’s testimony, the Neases cannot prove that the design of the speed control assembly in the 2001 Ford Ranger renders the vehicle “not reasonably safe for its intended use.” Morningstar, 253 S.E.2d at 683. Accordingly, we reverse the district court’s denial of Ford’s post-trial motion for judgment as a matter of law and remand the case to the district court for entry of judgment in Ford’s favor. And, because the granting of judgment as a matter of law effectively ends this litigation, we need not reach Ford’s challenges to the jury instruction and the admission of prior incidents evidence.

REVERSED AND REMANDED WITH INSTRUCTIONS

      . Contaminants that typically build up on automobile engine parts over time include carbon, substances accumulating from "vapors off of gasoline, brake fluid, hydraulic fluids, battery acids, steel, copper, aluminum, [and] magnesium,” J.A. 644, as well as the dirt and grime that washes up into the engine from the surface of the road.

      . Under Frye, expert scientific testimony was admitted only if the expert opinion was based on principles that were "generally accept[ed]” in "the particular field in which it belongs.” 293 F. at 1014.

      . In so holding, the Supreme Court rejected the Eleventh Circuit's view that engineering testimony "[fell] outside the scope of Daubert, [and] that the district court erred as a matter of law by applying Daubert in this case,” Kumho Tire, 526 U.S. at 146, 119 S.Ct. 1167, which is precisely the same argument the Neases make here.

      . To the extent that the Neases argue that testing or other comparative analysis of Sero's alternative designs was unnecessary because they were not novel designs, their argument relies upon the same flawed understanding of Daubert that we have already rejected.


author: DIANA GRIBBON MOTZ, Circuit Judge:

text:
    IRAQ MIDDLE MARKET DEVELOPMENT FOUNDATION, Plaintiff-Appellant, v. Mohammad Ali Mohammad HARMOOSH, a/k/a Mohammed Alharmoosh; Jawad Alharmoosh, Defendants-Appellees.
    No. 16-1403
    United States Court of Appeals, Fourth Circuit.
    Argued: December 7, 2016
    Decided: February 2, 2017

      ARGUED: D. Michelle Douglas, KAL-BIAN & HAGERTY, LLP, Washington, D.C., for Appellant.
    Mukti N. Patel, FISHERBROYLES LLP, Princeton, New Jersey, for Appel-lees.
    ON BRIEF: Haig V. Kalbian, KALBI-AN & HAGERTY, LLP, Washington, D.C., for Appellant.
    Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
   DIANA GRIBBON MOTZ, Circuit Judge:

After securing a judgment in Iraq for non-payment of a promissory note, a creditor sought to have the judgment recognized in the federal district court for the District of Maryland. The debtor contended that the judgment was not entitled to recognition given that the parties had agreed to arbitrate their disputes. The district court agreed and granted summary judgment to the debtor. Because genuine issues of material fact remain as to whether the debtor lost his right to arbitrate by utilizing the Iraqi judicial process, we must vacate and remand for further proceedings.

I.

The Iraq Middle Market Development Foundation, a non-profit corporation, makes and services loans to local businesses in Iraq. On November 10, 2006, the Foundation agreed to lend $2 million to Al-Harmoosh for General Trade, Travel, and Tourism (“AGTTT”), a company headquartered in Najaf, Iraq. The loan agreement includes an arbitration clause specifying that “[a]ll disputes, controversies and claims between the parties which may arise out of or in connection with the Agreement ... shall be finally and exclusively settled by arbitration.” The clause identifies Amman, Jordan as the venue for arbitration. As part of the deal, Mohammad Harmoosh, a managing partner of AGTTT and a dual citizen of Iraq and the United States, who resides in Maryland, executed a promissory note guaranteeing repayment of the loan.

In 2010, after Harmoosh had refused to repay the loan, the Foundation tried to collect by suing him for breach of contract in federal court in Maryland. Harmoosh moved to dismiss, arguing that his alleged breach was an arbitrable dispute “arisfing] out of or in connection with” the loan agreement. The district court agreed and dismissed the Foundation’s complaint. Iraq Middle Mkt. Dev. Found. v. Al Harmoosh, 769 F.Supp.2d 838, 842 (D. Md. 2011). Harmoosh, however, did not move to compel arbitration, as he was entitled to do under the Federal Arbitration Act. 9 U.S.C. § 3 (2012).

In February 2014, the Foundation filed another civil action against Harmoosh to collect on the promissory note, this time in the Court of First Instance for Commercial Disputes in Baghdad. Harmoosh appeared in that court through counsel and asserted at least two affirmative defenses. He contended that the court lacked personal jurisdiction and that he was not personally liable because he guaranteed the loan only in his capacity as a shareholder. The parties disagree as to whether Har-moosh raised the arbitration clause as a third defense. It is undisputed that, under Iraqi law, although a valid arbitration clause deprives a court of jurisdiction over arbitrable disputes, a party waives his right to arbitrate if he fails to assert it before the trial court. Article 253, Amended Civil Procedure Code No. 83 of 1969.

In any event, the Foundation and Har-moosh litigated their dispute to final judgment in Iraq. In April 2014, the Court of First Instance found in favor of the Foundation and awarded it $2 million in damages and $424.91 in costs and legal fees. Harmoosh appealed the judgment to the Baghdad/Al-Rasafa Federal Court of Appeals, which affirmed the judgment. Harmoosh then appealed to the Federal Court of Cassation of Iraq — the court of last resort for commercial disputes — which also affirmed.

In April 2015, the Foundation returned to the District of Maryland and filed the two-count complaint at issue here. Count One seeks recognition of the Iraqi judgment under the Maryland Uniform Foreign Money-Judgments Recognition Act, Md. Code Ann., Cts. & Jud. Proc. §§ 10-701 et seq. (West 2016) (“Maryland Recognition Act”). Count Two alleges that Harmoosh fraudulently conveyed some of his assets both before and after the Iraqi judgment was rendered.

Under the Maryland Recognition Act, a foreign judgment regarding a sum of money is generally conclusive between the parties so long as it is “final, conclusive, and enforceable where rendered.” Id. §§ 10-702, -703. However, the Act recognizes several exceptions to this general rule. Relevant here, the Act provides that a court need not recognize a foreign judgment if “[t]he proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled out of court.” Id. § 10-704(b)(4). Harmoosh moved to dismiss, invoking this exception and arguing that the district court should not recognize the Iraqi judgment because the Iraqi proceedings were contrary to the parties’ agreement to arbitrate. The Foundation responded that Harmoosh failed to assert his arbitration rights before the Iraqi trial court and therefore had waived his right to arbitrate.

Before the parties had an opportunity to conduct discovery, the district court granted summary judgment to Harmoosh on the Maryland Recognition Act claim, declining to recognize the Iraqi judgment because the Iraqi proceedings were “contrary to an arbitration provision.” The court then granted Harmoosh’s motion to compel arbitration of the fraudulent conveyance claim. The Foundation timely noted this appeal.

We review the district court’s grant of summary judgment de novo. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law. Id.

II.

We must first determine whether the arbitration clause exception in § 10-704(b)(4) of the Maryland Recognition Act applies if a party forgoes his right to arbitrate by deciding to participate in judicial proceedings in a foreign court. This is a question of Maryland law, one that Maryland’s highest court has not addressed. Because we sit in diversity, our task is to anticipate how it would rule on this question. See, e.g., Liberty Univ., Inc. v. Citizens Ins. Co. of America, 792 F.3d 520, 528 (4th Cir. 2015).

The text of § 10-704(b)(4) provides that a Maryland court need not recognize a foreign judgment if the proceedings were “contrary to” an agreement to settle the dispute out of court. Harmoosh contends that § 10-704(b)(4) permits a Maryland court to decline recognition of a foreign judgment if — under the terms of an arbitration clause — the dispute should not have been litigated in the first place. On this reading, any and all foreign judicial proceedings are “contrary to” an arbitration clause regardless of whether the parties forego their arbitration rights.

We cannot agree. We do not believe the General Assembly of Maryland intended to give courts discretion to enforce contractual rights the parties themselves decided to waive. By the same token, we do not believe the legislature gave courts discretion to ignore the judgment of a foreign court when the parties voluntarily resolved their dispute before that court.

This court has not addressed this issue, and few other courts have interpreted exceptions similar to § 10-704(b)(4). Those that have done so have recognized that parties may waive such exceptions. See The Courage Co. v. The Chemshare Corp., 98 S.W.3d 323, 336-38 (Tex. App. 2002); Dart v. Balaam, 953 S.W.2d 478, 480 (Tex. App. 1997); cf. Montebueno Mktg., Inc. v. Del Monte Corp. USA, 570 Fed.Appx. 675, 677 (9th Cir. 2014) (unpublished) (rejecting a waiver argument due solely to “lack of evidence”). And we have not found a single case in which a court has held, or even suggested, that exceptions similar to § 10-704(b)(4) cannot be waived. During oral argument, Harmoosh’s counsel agreed with our assessment of the ease law.

Moreover, we can draw guidance on the question from the fact that Maryland has largely adopted the Uniform Foreign Money-Judgments Recognition Act. See Andes v. Versant Corp., 878 F.2d 147, 149 (4th Cir. 1989). The arbitration clause exception in § 10-704(b)(4) closely tracks a provision in the Uniform Act. That portion of the Uniform Act, which provides that a court need not recognize the judgment of a foreign court if the proceedings were “contrary to” an agreement that a given dispute “was to be settled otherwise than by proceedings in that court,” can be waived either expressly or by implication. Uniform Foreign Money-Judgments Recognition Act of 1962 § 4(b)(5) (Unif. Law Comm’n 1962); Restatement (Third) of the Foreign Relations Law of the United States § 482, cmt. h (Am. Law Inst. 1987).

Nothing suggests that the Maryland General Assembly intended a different result. On the contrary, Harmoosh’s interpretation would put the arbitration clause exception in § 10-704(b)(4) at odds with Maryland common law of contracts. Under Maryland law, a party can waive the right to arbitrate a dispute just as he can waive any other contractual right. Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 450 A.2d 1304, 1306 (1982). And once a party waives his right to arbitrate, that right becomes unenforceable “and thus treated as though it had never existed.” Stauffer Constr. Co. v. Bd. of Educ. of Montgomery Cty., 54 Md.App. 658, 460 A.2d 609, 614 (1983).

As in other jurisdictions, exactly when a party waives his rights through his conduct “turns on the factual circumstances of each case.” Charles J. Frank, 450 A.2d at 1307. However, Maryland’s highest court has squarely held that a party who litigates an arbitrable dispute to final judgment waives his right to later arbitrate the dispute. Id. This rule respects the fundamental principles of freedom of contract and the rationale for enforcing arbitration and forum-selection clauses: the “belief that where parties can agree to a mutually optimal method and forum for dispute resolution, it serves the interests of efficiency and economy to allow them to do so.” Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 222-23 (1st Cir. 1995) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 633, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

Against this background, we find it highly unlikely that the Maryland General Assembly intended the arbitration clause exception to apply when parties have waived their rights to arbitrate. Such a rule would mean that conduct which renders an arbitration clause unenforceable if it occurs in a domestic court would have no effect at all if it occurs in a foreign court. It would also mean that the parties’ decision to forego arbitration and litigate in domestic courts would bind them, while a similar decision to litigate in a foreign court would not. Absent some affirmative indication, we will not infer that the Maryland General Assembly intended to carve out such an exception to the common law. See Spangler v. McQuitty, 449 Md. 33, 141 A.3d 156, 166 (2016) (“[Statutes in derogation of the common law are strictly construed, and it is not to be presumed that the [General Assembly] ... intended to make any alteration in the common law other than what has been specified and plainly pronounced.” (second alteration in original) (quoting Cosby v. Dep’t of Human Res., 425 Md. 629, 42 A.3d 596, 606 (2012))).

Finally, construing the arbitration exception as Harmoosh suggests would frustrate the overarching purpose of the Maryland Recognition Act. It is well settled that the Act “was intended to promote principles of international comity by assuring foreign nations that their judgments would, under certain well-defined circumstances, be given recognition by [Maryland] courts.” Wolff v. Wolff, 40 Md.App. 168, 389 A.2d 413, 417 (1978), aff'd 285 Md. 185, 401 A.2d 479 (1979) (per curiam); see also Guinness PLC v. Ward, 955 F.2d 875, 884 (4th Cir. 1992) (quoting Wolff).

By giving foreign nations a measure of certainty that Maryland courts will respect their judgments, the Maryland Recognition Act “hopefully facilitate[s] recognition of similar United States’ judgments abroad.” Wolff, 389 A.2d at 417. As the drafters of the Uniform Act explained, the need for such assurances arose because “[i]n a large number of civil law countries, grant of conclusive effect to money-judgments from foreign courts is made dependent upon reciprocity.” Uniform Foreign Money-Judgments Recognition Act of 1962, prefatory note (Unif. Law Comm’n 1962). By providing these assurances, the drafters hoped the Uniform Act would “make it more likely that judgments rendered” in adopting states would “be recognized abroad.” Id.

Harmoosh’s interpretation would inject a level of uncertainty into the process of recognizing foreign judgments that the Maryland General Assembly clearly intended to avoid. Under his interpretation, a court in Maryland would have almost complete discretion to decide whether to recognize a foreign judgment that both parties had voluntarily sought. This would show foreign courts none of the “deference and respect” crucial to comity. Comity: Judicial Comity, Black’s Law Dictionary (4th ed. 1951). Indeed, it would show those courts no deference or respect at all. As a result, foreign nations would have no assurance that Maryland courts would respect their resolution of disputes involving contracts with arbitration clauses. They would therefore have little reason to recognize similar judgments from Maryland courts. The General Assembly sought to avoid precisely this mischief when it enacted the Maryland Recognition Act.

Judicial proceedings in a foreign court are not “contrary to” an arbitration clause for the purposes of the Maryland Recognition Act if the parties choose to forego their rights to arbitrate by participating in those proceedings. Section 10-704(b)(4) simply does not apply in that event.

III.

We next determine whether the Foundation has raised genuine issues of material fact as to whether Harmoosh decided to forego his arbitration rights.

The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2012) (the “Act”), governs resolution of this question. The Act applies to arbitration clauses in contracts “evidencing a transaction involving commerce.” 9 U.S.C. § 2. Both the loan agreement and the promissory note evidence such a transaction. Both documents pertain to a loan made by the Foundation, a Texas corporation, to AGTTT, an Iraqi corporation. See Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689, 693 (4th Cir. 1956) (“A contract made by an American corporation -with a foreign one ... involves commerce with a foreign country.”). Thus, as the parties agree, we look to the Act when determining if the Foundation offered sufficient evidence to prevent the grant of summary judgment to Harmoosh.

Under the Act, a party loses his right to arbitrate when he is “in default in proceeding with such arbitration.” 9 U.S.C. § 3. “Default in this context resembles waiver, but, due to the strong federal policy favoring arbitration, courts have limited the circumstances that can result in statutory default.” Forrester v. Penn Lyon Homes, Inc., 553 F.3d 340, 342 (4th Cir. 2009). Thus, a party defaults and so waives his right to arbitrate under the Act only if he “so substantially utilizes] the litigation machinery that to subsequently permit arbitration would prejudice” the other party. Maxum Founds., Inc. v. Salus Corp., 779 F.2d 974, 981 (4th Cir. 1985); see also Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 702 (4th Cir. 2012).

In this ease, not even Harmoosh disputes that his waiver of the arbitration right, if-proven, would prejudice the Foundation. This is wise. If the Foundation proves what it has alleged — that Har-moosh waived his right to arbitrate by litigating the dispute in Iraqi courts — allowing him to assert that right now would deprive the Foundation of its entitlement to recover on a $2 million judgment. Under any reasonable definition of “prejudice,” this would be highly prejudicial.

Thus, the controlling question is this: did the Foundation raise genuine issues of material fact that preclude a summary judgment holding that Harmoosh preserved his arbitration rights? We believe it clearly did. Without any discovery, the Foundation offered evidence that Harmoosh was aware of his right to arbitrate (having successfully asserted that right' once before) and nonetheless voluntarily litigated his dispute with the Foundation to final judgment in an Iraqi court. The Foundation offered evidence that Harmoosh voluntarily appeared through counsel before the Iraqi trial court, asserted several defenses, and litigated those defenses to final judgment. After the Iraqi trial court awarded the Foundation a $2 million judgment, Harmoosh appealed all the way to the Iraqi court of last resort, and he lost.

The Foundation supplemented this undisputed evidence with the declaration of Salam Zuhair Dhia, its local counsel in the Iraqi proceedings. Dhia declared that the Foundation pursued litigation in Iraq to avoid the high costs of arbitration in Jordan and that Harmoosh never raised the arbitration clause as a defense at any point during the proceedings before the trial court.

According to Dhia, “[i]t is common practice in the Iraqi Courts of First Instance for the court to prepare a short summary of what occurred and what arguments were raised at each hearing.” The Foundation submitted purported copies of these summaries from the Iraqi proceedings, along with certified English translations. The summaries indicate that Harmoosh raised two defenses but never asserted his rights under the arbitration clause. Perhaps most tellingly, Harmoosh’s local counsel appears to have signed the summaries detailing what defenses he had raised.

In opposition, Harmoosh offered the un-sworn, unverified declaration of his own local counsel, who asserts that he raised the arbitration clause to “the court” in Iraq and that “the court did not consider the defense in both the [trial] and appeal stages.” Harmoosh also submitted the appellate brief his counsel filed with the Baghdad/Al-Rasafa Federal Court of Appeals, in which his counsel lists the arbitration clause as one reason for overturning the trial court’s decision but does not state that the defense was raised before the trial court.

Construing this evidence in the light ■most favorable to the Foundation, genuine issues of material fact remain as to whether Harmoosh defaulted his right to arbitrate. A reasonable factfinder could determine that Harmoosh chose to waive his right to arbitrate and instead litigated his dispute in the Iraqi courts to avoid the time and cost of arbitration. Further discovery and development of the record will undoubtedly clarify these issues. But given the present record, Harmoosh was not entitled to summary judgment on the Maryland Recognition Act claim.

IV.

For the foregoing reasons, the judgment of the district court is

VACATED AND REMANDED.

      . The only notable difference between § 10-704(b)(4) and § 4(b)(5) of the Uniform Act is that the latter applies both to arbitration clauses and to forum-selection clauses. Restatement (Third) of the Foreign Relations Law of the United States § 482, cmt. h (Am. Law Inst. 1987). By contrast, § 10-704(b)(4) applies only to arbitration clauses.

      . The district court also held that "[bjecause” it would "not recognize the Iraqi Judgment,” the Foundation was a creditor only by virtue of the loan agreement. As such, the district court held that the fraudulent conveyance claim arose from the loan agreement and was arbitrable. This may be the correct result in the final analysis. However, for the reasons discussed above, we believe it is too soon to say whether Harmoosh defaulted his arbitration rights. It is therefore too soon to say the Foundation is a creditor only by virtue of the loan agreement. Accordingly, we must vacate the entire judgment of the district court, including its order compelling arbitration of the fraudulent conveyance claim.