
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2374        No. 93-1033                      MARY HAYES, ADMINISTRATOR OF THE ESTATE OF                          ROBERT HAYES, JR., AND ERIC HAYES,                               Plaintiffs, Appellants,                                          v.                               DOUGLAS DYNAMICS, INC.,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                           Boudin and Stahl, Circuit Judges,                                             ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            John Benjamin Carroll with whom Woodruff  L. Carroll was on  brief            _____________________           ____________________        for appellant.            John  L. Kerr  with  whom  Whiting  &  Elinoff  was on  brief  for            _____________              ___________________        appellee.                                 ____________________                                   November 1, 1993                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                                         -2-                                          2                    FUSTE, District Judge.   Appellants Mary and Eric Hayes                    FUSTE, District Judge.                           ______________          appeal  from  a grant  of summary  judgment  in a  negligence and          breach  of warranty action resulting from a car accident in which          Robert Hayes,  Jr., the  son of  Mary  and brother  of Eric,  was          killed.  The district court held that plaintiffs failed to adduce          adequate  evidence  to  show  that defendant's  product  was  the          proximate cause of the decedent's fatal injury.  We affirm.                                                               affirm                                          I.                                          I.                                      Background                                      Background                                      __________                    On January 30, 1988, Robert Hayes, Jr. and his  brother          Eric were passengers  in the  rear compartment of  a Ford  Tempo.          Robert, Jr. was  sitting in  the right rear  passenger seat,  and          Eric was sitting  behind the  driver's seat.   While the car  was          stopped at an intersection, waiting  to make a left turn, it  was          hit from behind  by a Chevrolet pickup truck.   The driver of the          truck  attempted  to swerve  and avoid  the  car.   The collision          pushed the car into oncoming traffic where it was hit in the left          front area by a van.  The car spun one-hundred and eighty degrees          before coming to rest.  Robert, Jr. died the following day from a          head injury  sustained in the accident.  The cause of death was a          blow to the back of  the head, behind the  right ear.  The  other          three passengers suffered minor injuries.                    Exactly  which part  of the  truck hit  the Tempo  is a          central issue in this  case.  The Chevrolet truck was fitted with          a  Western  brand  snowplow  manufactured  by  defendant-appellee          Douglas  Dynamics.   The snowplow  unit is  designed so  that the                                         -2-                                          2          frame, consisting of a metal hydraulic pump and motor unit with a          metal  lift channel, can remain  attached to the  truck even when          the snowplow blade is removed.  The blade was not attached to the          truck  at the  time of the  accident.   Part of  the lift channel          consists of a lift arm which  protrudes outward from the front of          the  truck.    The end  of  the  lift  arm  is a  U-shaped  plate          approximately 2 inches by 3 1/2 inches in dimension.                                          II.                                         II.                           Theories of Recovery and Defense                           Theories of Recovery and Defense                           ________________________________                    Plaintiffs  brought  a diversity  jurisdiction  suit in          federal   district  court  alleging   breach  of   warranty1  and          negligence  and  contending  that  defendant is  liable  for  the          wrongful death of Robert, Jr. and the mental injuries suffered by          Eric  Hayes as a  result of seeing his  brother sustain the fatal          injury.  The plaintiffs'  theory is that the protruding  lift arm          of defendant's product caused the death of Robert, Jr., either by          directly striking his  head, or by propelling forward  some metal          piece of the  Tempo which then dealt the fatal  blow to his head.          The plaintiffs also argue that the  presence of the plow frame on          the  truck altered  the dynamics  of the  pickup, making  it more          dangerous in a collision.                      In order to succeed  in a claim for breach  of warranty          under  Massachusetts  law,  the  plaintiff  must  show  that  the                                        ____________________               1Under Massachusetts law, the theory of breach of an implied          warranty  of  merchantability is  basically  the  same as  strict          liability theory in tort.  Wolfe v. Ford Motor Co., 386 Mass. 95,                                     _______________________          100, 434 N.E.2d 1008, 1011 (1982).                                         -3-                                          3          defendant's  product  was  the  proximate cause  of  the  injury.          Colter v. Barber-Greene Co.,  403 Mass. 50, 61, 525  N.E.2d 1305,          ___________________________          1312  (1988); Swartz v. General Motors Corp., 375 Mass. 628, 633,                        ______________________________          378  N.E.2d 61, 65 (1978).   A plaintiff  alleging that a product          was negligently designed can proceed by showing  that the product          either proximately  caused  or  enhanced  the  injuries  alleged.          Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 212, 596 N.E.2d          _________________________________          318, 323 (1992).    Because it is undisputed that Robert, Jr. was          killed by a  single blow to  the head, the  plaintiffs must  show          that the plow frame either caused  the injury or that the  injury          would not have been fatal  if the frame had not been  attached to          the truck.  If  the plaintiffs cannot  prove that the plow  frame          was the proximate cause  of the fatal injury  itself, or that  it          caused an enhancement of a lesser injury, then the defendants are          entitled to summary judgment as a matter of law.                      Proximate cause  is a  legal definition  which requires          that  the  precipitating  object   or  action  "in  a  continuous          sequence,  unbroken  by any  new  cause,  produces an  event  and          without which the  event would  not have occurred."   Wallace  v.                                                                ___________          Ludwig,  292 Mass.  251,  254,  198  N.E. 159,  161  (1935).    A          ______          plaintiff  need  not prove  the exact  cause  of the  accident or          disprove every possible cause,  but he must show that there  is a          greater   likelihood  that   the  accident   resulted  from   the          defendant's  negligence than that it did not.  Enrich v. Windmere                                                         __________________          Corp., 416 Mass 83, 616 N.E.2d 1081, 1084  (1993).  Therefore, in          _____          order to proceed with  their claims, the plaintiffs here  must be                                         -4-                                          4          able to show that  there is a  greater probability that the  lift          arm  caused the death of Robert, Jr.  than that some other object          in the crash was the agent of injury.                    Defendant   alleges  that   the  evidence   offered  by          plaintiffs is insufficient to establish  that there is a  genuine          issue of fact as to whether the snowplow, directly or indirectly,          caused  the  injury to  Robert, Jr.   Accordingly,  the defendant          filed  a motion  for summary  judgment.   Plaintiffs  opposed and          filed a cross-motion seeking similar  relief.  The district court          granted  the  defendant's  motion  for  summary  judgment.    The          plaintiffs appeal the grant of summary judgment and the denial of          their   cross-motion.      Plaintiffs  also   challenge   several          prejudgment rulings of the district court.2                                         III.                                         III.                       Summary Judgment and Standard of Review                        Summary Judgment and Standard of Review                       _______________________________________                    The  purpose  of summary  judgment  is  "to pierce  the          pleadings  and to assess the proof  in order to see whether there          is a  genuine need for trial".   Garside v. Osco  Drug, Inc., 895                                           ___________________________          F.2d 46, 50 (1st Cir. 1990)  (quoting Fed. R. Civ. P. 56 Advisory          Committee's Note).   Therefore,  if  the pleadings,  depositions,          answers to interrogatories, admissions and any affidavits on file          show  that there is no genuine issue  as to a material fact, then          the moving  party is  entitled to judgment  as a  matter of  law.          Fed. R. Civ. P. 56(c).                                        ____________________               2Because  we affirm  the  grant of  summary judgment  to the          defendant, we do not  reach the other issues raised  on appeal by          the plaintiffs.                                         -5-                                          5                    Where, as  here, the  moving  party does  not have  the          burden of proof at trial, that party must make a showing that the          evidence is  insufficient to support the  nonmoving party's case.          Celotex  Corp. v. Catrett, 477  U.S. 317, 325  (1986).  Once this          _________________________          showing  has been  made,  it  is up  to  the  nonmoving party  to          establish the  existence of  a genuine  disagreement  as to  some          material fact.  United States v. One Parcel of Real Property, 960                          ____________________________________________          F.2d 200, 204 (1st Cir. 1992).   In this context, "genuine" means          that "the evidence is such that a reasonable jury could  return a          verdict  for the nonmoving party",  and a "material  fact" is one          which "might affect the  outcome of the suit under  the governing          law."  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).                 _______________________________                    Appellate  review  of  summary  judgment  decisions  is          plenary.    Griggs-Ryan v.  Smith, 904  F.2d  112, 115  (1st Cir.                      _____________________          1990).   In  applying this  standard, we view  the record  in the          light most favorable to the nonmovants, the plaintiffs.  Bank One                                                                   ________          Texas, N.A.  v. A.J. Warehouse,  Inc., 968 F.2d 94,  97 (1st Cir.          _____________________________________          1992).                                           IV.                                         IV.                                      Discussion                                      Discussion                                      __________                    In support of their claims, the plaintiffs offer direct          evidence  in  the  form  of  the  depositions  of  witnesses  and          photographs  from the scene, as well as the affidavits of several          experts.3                                        ____________________               3Following the order of  the district court granting summary          judgment, the  plaintiff moved  to submit further  evidence under          Fed.  R. Civ.  Pro. 59(e)  and  60(b)(6).   The  denial of  these                                         -6-                                          6          A.  Direct Evidence          A.  Direct Evidence              _______________              1.  Paul Porter              1.  Paul Porter                  ___________                    Paul Porter, a  police officer who arrived  immediately          after the accident,  testified that based  on his examination  of          the vehicles,  he believed that the  front of the truck,  with an          emphasis on the left front quarter, struck the right  rear of the          Tempo.   Porter stated that he saw  "the plow frame and front end          as one entity," and did not think that the  plow frame did all of          the damage to the Tempo.   Porter testified that no blood or hair          samples were found on the plow frame itself.  In addition, Porter          stated  that when he arrived  at the accident  scene, Robert, Jr.          was still  in the  car.   The officer observed  that the  boy was          pinned under a piece  of the Tempo, a  metal pillar from  between                                        ____________________          motions  is also challenged on appeal.  Decisions of the district          court under  these rules  are reviewed  for abuse  of discretion.          Valley  Citizens  for a  Safe Environment  v. Aldridge,  969 F.2d          ______________________________________________________          1315,  1317  (1st  Cir.  1992)  (Rule  60(b));  Mariani-Giron  v.                                                          _________________          Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991) (Rule 59(e)).  A Rule          ____________          60(b)(6) motion will be  granted by a  district court only if  it          finds  "exceptional"  circumstances that  justify "extraordinary"          relief.  United States v.  One Urban Lot, 882 F.2d 582,  585 (1st                   _______________________________          Cir. 1989).   Rule 50(e) motions are granted for  reasons such as          the commission by  the trial court of a manifest  error of law or          fact,  the discovery of new evidence, or an intervening change in          the    law.         National    Metal     Finishing    Co.     v.                              _____________________________________________          BarclaysAmerican/Commercial,  Inc., 899  F.2d 119,  124  n.2 (1st          __________________________________          Cir.  1990)(citations omitted).   Plaintiffs presented no reasons          to the district court  which would warrant relief under  60(b) or          59(e).   The judge noted  that none of  the information presented          was new, nor  was it  unavailable when the  summary judgment  was          filed.   In addition, he stated  that the new  evidence would not          have  changed his  prior analysis.   We  are unable  to  find any          reasons  in  the record  to  justify  the submission  of  further          evidence, and plaintiffs  have not  advanced any.   Therefore  we          find that it was not an abuse of discretion for the court to deny          the  plaintiff's motions, and we will not consider the additional          affidavits on appeal.                                         -7-                                          7          the side rear window and the rear window.  The pillar was leaning          against the head of Robert, Jr., behind his right ear.                    Because  Porter  did not  distinguish between  the plow          frame and the front of the truck, his testimony does  not help to          establish that the snowplow frame, directly or indirectly, caused          the death  of Robert, Jr.   Porter's testimony about  the lack of          blood  or hair on the plow frame  tends to refute the theory that          the lift arm itself came into contact with the victim's head.  In          addition, the  officer's observation of the  metal pillar leaning          against the decedent's head suggests  one alternative explanation          for how Robert, Jr. may have received the head injury.              2.  William Richardson              2.  William Richardson                  __________________                    William Richardson,  the driver  of  the truck,  stated          that he hit the car  off-center because he swerved in an  attempt          to  avoid the  accident.   He  testified  that approximately  the          center of the front end of his truck hit the right rear passenger          side of the Tempo, but he was unable  to see whether the lift arm          itself impacted the car.  Richardson's testimony establishes that          the right rear passenger area of  the Tempo received the brunt of          the collision.  Due to this, it is understandable that the injury          to Robert, Jr. was more severe than that to any other occupant of          the car.  Because  Richardson could not see what happened  to the          lift arm during  the collision,  his testimony does  not help  to          establish  a  causal link  between  defendant's  product and  the          injury to the victim.              3.  Police Photographs              3.  Police Photographs                  __________________                                         -8-                                          8                    The police photographs offered by the plaintiffs depict          a mangled mass of metal  in the right rear passenger area  of the          Tempo,  and some  damage to  the left  front of  the truck.   The          pictures  show that the damage to the  right rear part of the car          was  far  more extensive  than that  sustained  by the  left rear          region.   The  photographs do  not further the  plaintiffs' claim          that  the  defendant's  product  caused the  injury,  but  rather          suggest a number  of different possibilities for what  might have          hit Robert, Jr. on the head.                      Wolf  Technical  Services,  an  engineering  consulting          firm, was  employed to analyze  the photographs of  the accident.          The  consultants concluded  that  the rear  seat  back was  moved          forward approximately 11.5 inches  on the left end and  24 inches          on the right end, and the rear bumper was displaced approximately          15 inches at  the left end  and at least  30 inches on  the right          side.   These results are consistent with the other evidence that          the  right rear  part  of the  Tempo sustained  the brunt  of the          damage.   However, as the  district court pointed  out, the study          does not establish  that the plow frame caused the  seat back and          fender to move forward.                       The plaintiffs  claim that  the lift mechanism  caused,          among  other damage, a wedge shaped mark  on the trunk lid of the          Tempo.   If shown,  this might help  to establish  that the  lift          mechanism played a  major role in the accident.   As noted by the          district  court, however, no such  mark is visible  in the police          photographs.                                         -9-                                          9          B.  Expert Witnesses          B.  Expert Witnesses              ________________                    The plaintiffs have produced the affidavits of a number          of  expert  witnesses  and  argue  that,  under  Federal Rule  of          Evidence 705, we  must accept the  conclusions of these  experts.          While nonmovants may rely  on the affidavits of experts  in order          to defeat a motion for summary judgment, such evidence must still          meet the  standards of Rule 56.   Fed. R. Civ.  P. 56(e) requires          that the nonmoving  party "set forth specific facts  showing that          there is a  genuine issue  for trial."   Plaintiff's reliance  on          Federal  Rule of  Evidence 705,  which allows  an expert  to give          opinion testimony, together with the supporting  reasons, without          disclosure  of  the underlying  facts  or  data, is  inapposite.4          This rule was designed to apply in the context of  a trial, where          cross-examination provides an opportunity  to probe the  expert's          underlying  facts and data and to test the conclusions reached by          the expert.                      Although expert testimony may be  more inferential than          that of fact witnesses, in  order to defeat a motion  for summary          judgment  an  expert  opinion  must  be  more  than  a conclusory          assertion about ultimate legal issues.   Bowen v. Manchester, 966                                                   ___________________          F.2d 13,  n.16 (1st  Cir. 1992).   See also  Moody v.  Boston and                                             ________  ____________________                                        ____________________               4Fed. R. Evid. 705 provides:                     The expert may testify in terms of opinion or                    inference and give  reasons therefor  without                    prior  disclosure of the  underlying facts or                    data,  unless  the court  requires otherwise.                    The expert  may in  any event be  required to                    disclose  the  underlying  facts  or  data on                    cross-examination.                                         -10-                                          10          Maine  Corp., 921 F.2d  1, 5 (1st  Cir. 1990); Sultis  v. General          ____________                                   __________________          Motors  Corp.,  690  F. Supp.  100,  103  (D. Mass.  1988).   The          _____________          evidentiary rules  regarding expert testimony at  trial were "not          intended  . . . to  make summary  judgment impossible  whenever a          party has produced  an expert  to support its  position."   Merit                                                                      _____          Motors,  Inc. v.  Chrysler Corp.,  569 F.2d  666, 673  (D.C. Cir.          ________________________________          1977).   We are  not  willing to  allow the  reliance  on a  bare          ultimate expert conclusion to  become a free pass to  trial every          time that  a conflict of fact  is based on expert  testimony.  As          with  all  other  evidence  submitted  on  a  motion  for summary          judgment,  expert  affidavits  must   be  reviewed  in  light  of          F.R.Civ.P. 56.                    Where an expert presents "nothing but conclusions -- no          facts,  no  hint  of  an inferential  process,  no  discussion of          hypotheses  considered  and  rejected", such  testimony  will  be          insufficient to defeat a motion for  summary judgment.  Mid-State                                                                  _________          Fertilizer  v. Exchange Natl. Bank, 877 F.2d 1333, 1339 (7th Cir.          __________________________________          1989).  See also Evers v. General Motors, 770 F.2d 984, 986 (11th                  ________ _______________________          Cir. 1985);   Bulthuis v. Rexall  Corp, 789 F.2d 1315,  1318 (9th                        ________________________          Cir.  1985).   Although  an  expert  affidavit need  not  include          details about all of the raw  data used to produce a  conclusion,          or about  scientific or  other specialized  input which might  be          confusing to a  lay person, it must at  least include the factual          basis  and the  process of  reasoning which makes  the conclusion          viable in order to defeat a motion for summary judgment.  We find          that each of  the expert affidavits failed to  contain sufficient                                         -11-                                          11          support for the  conclusion that  the injury to  Robert, Jr.  was          caused by the defendant's product.                1.  Nicholas Miller              1.  Nicholas Miller                  _______________                    Nicholas  Miller, an expert in accident reconstruction,          used  the  police  report,  autopsy  report,  death  certificate,          hospital  and  medical  records,  depositions,  pictures  of  the          accident  scene  and vehicles,  and the  study conducted  by Wolf          Technical Services, in order to reconstruct the accident.  Miller          also utilized similar vehicles to simulate the relative positions          of the truck and the Tempo  before impact, and conducted a  video          computer  graphic  reenactment.    Based on  this  input,  Miller          concluded that the lift mechanism caused Robert, Jr.'s injuries.                    Miller  opines that  the deceased  was struck  by sheet          metal pushed  forward  by the  lift  arm  of the  snowplow.    He          explains his reasoning as follows:   (1) the fatal blow was by an          object of the same size, shape and rigidity as the  lift arm; (2)          there  was no other object  of similar shape,  size, and rigidity          near the  decedent's  head; (3)  therefore,  defendant's  product          caused the injury.   Even assuming that the victim  was killed by          an object of the dimensions and shape of the lift arm ("rigidity"          was never further discussed by any of the experts), Miller's bald          assertion  that  no other  part  of  the car  or  truck  had that          particular shape is difficult to accept, given  that Miller never          had the opportunity to examine the Tempo after the accident.  The          photographs of the  Tempo after  the crash  are not  sufficiently          clear to  establish the shape and  size of each of  the pieces of                                         -12-                                          12          the  wreck.     Miller  claims  to  have   eliminated  all  other          possibilities  as to  what  could have  struck  Robert, Jr.,  but          provides no factual  details about  this analysis.   He fails  to          even mention or discuss the only object which anyone saw near the          victim's head, the metal window support which Porter observed.                     In his second  supplemental affidavit, Miller discusses          the  exemplar vehicles.  Starting  with a picture  of a Chevrolet          pickup  truck with a  snowplow frame attached,  situated behind a          Ford Tempo,  Miller drew a  line representing where  the snowplow          would end  up if  it proceeded directly  into the Tempo.   Miller          concludes  that "it is apparent  as an observable  fact, that the          lift  mechanism attached  to  the truck  reached and  invaded the          right-rear  seat at head height  and would have  struck the right          rear passenger."                      Miller provides  no supporting  data to  establish that          the exemplar vehicles were in the same positions relative to each          other as the actual truck  and Tempo had been at the  time of the          accident. Even assuming that the exemplar vehicles were correctly          positioned, these pictures do not show what actually happened  to          the Tempo.  The pictures of the exemplar vehicles show  only that          if the truck  were to penetrate directly through the trunk of the          car, in a straight  line, then the front of the  truck, including          the  plow mechanism,  would end  up in  the rear  passenger area.          This establishes nothing more than that it is possible, given the          relative height of  the vehicles,  that the  plow caused  injury.          Miller provides no facts  from which we can reach  the conclusion                                         -13-                                          13          that it  is  more probable  than  not that  the  plow frame  tore          directly,  without  any resistance,  into  the  car in  a  linear          fashion and reached the passenger's head.              2.  Norris Shoemaker              2.  Norris Shoemaker                  ________________                    Norris  Shoemaker,  a   consultant  in   transportation          safety, reviewed the same  documents and pictures as Mr.  Miller.          In  his initial  affidavit, Shoemaker  made  general observations          about  the design of the snowplow, asserting that the defendant's          product "changes  the crush  characteristics of the  pickup truck          and concentrates the  energy of  the collision in  a narrow  area          projecting  in  front  of  the  vehicle  in  a  narrow  spearlike          configuration"  and, as a result, the snowplow frame "can and has          inflicted  severe head and other injuries".  This is not evidence          of  what  actually happened  in the  accident  with which  we are          concerned.     Although in his  supplemental affidavit  Shoemaker          makes more specific assertions  about the accident at  hand, they          are not sufficient  to establish a causal connection.   Shoemaker          asserts  that "a  comparison  of the  exemplar  vehicles and  the          damage photographs  clearly show a penetration to  and beyond the          right rear passenger seat by  the Defendant's product."  However,          without  additional facts,  a  comparison of  these  two sets  of          photographs does  not sustain  such a  conclusion.  The  exemplar          pictures show only where the truck may have struck the Tempo, and          the  damage pictures  are not  sufficiently clear or  detailed to          show  that the  lift arm or  other parts  of the  plow frame ever          penetrated into the right rear passenger seat.                                           -14-                                          14              3.  Gerald Feigin              3.  Gerald Feigin                  _____________                    Dr. Gerald  Feigin, the medical examiner  who performed          the  autopsy on the deceased,  submitted an affidavit.   Based on          his  experience,   the  autopsy  report  and   pictures,  and  an          examination  of a Western lift arm, Feigin concluded that a blunt          object shaped like a lift armcaused the fatal blow to Robert, Jr.                    Feigin's  affidavit  was  written four  years  after he          performed the original autopsy.   At the autopsy, Feigin  noted a          one centimeter contusion on the head.  However, in his affidavit,          he suggests that  the bruise was in  conformity with the  size of          the terminus of the lift arm, which is 2 inches by 3 1/2  inches.          This creates a  factual discrepancy as to the  actual size of the          bruise.   In  addition, as  the district  court pointed  out, the          pictures  attached to the  autopsy do little  to support Feigin's          conclusion.     They  do  not  clearly  show  a  U-shaped  bruise          conforming to the reported size and shape of the lift arm.  It is          arguable that these concerns go to the weight of the evidence and          the credibility of  the witness,  and would not  themselves be  a          sufficient  basis,  on  summary  judgment,  for  disregarding the          evidence.   But even if we accept  the conclusion that the bruise          on the  decedent was the same  size and shape as  an injury which          would result if a  "blunt object shaped like a Western  lift arm"          struck a human head, this does little to establish that, in  this          particular case, the lift  arm actually did strike Robert  Hayes,          Jr.                4.  Dr. Ommaya              4.  Dr. Ommaya                  __________                                         -15-                                          15                    Plaintiffs also attached the affidavit of Dr. Ayub Khan          Ommaya,  a  neurosurgeon.   Ommaya  examined  the police  report,          accident  photographs,  medical  records, autopsy  report,  death          certificate, witness  depositions,  and affidavits  of the  other          experts.  Based upon  this evidence, he concluded that  the fatal          injury was caused by  the snowplow lift mechanism because,  among          other  unnamed reasons, "the deceased  was seated in  the path of          the  lift mechanism and [the]  type and location  of the bruising          fits the penetration path  of the lift mechanism".   Ommaya added          that  there was no other source for  the head injury and that his          conclusion  was inevitable  from  the dynamics  of the  accident,          including the acceleration forces.   Ommaya asserted that Robert,          Jr. would have sustained  minor injuries similar to those  of the          other  passengers  in  the car  if  the  lift  mechanism was  not          present.                      The  difficulty with  Dr. Ommaya's  opinion is  that he          begins with one assumption, that the deceased was in  the path of          the  lift mechanism; adds a further assumption, that there was no          other  object which could have caused the injury sustained by the          deceased, and then  concludes that the lift  mechanism caused the          injury.   As we  have seen,  there are  not  sufficient facts  to          establish that  the lift mechanism entered  the compartment where          Robert, Jr. was sitting, and Ommaya does not offer any additional          facts.   The assumption that there was  no other source of injury          disregards the presence of all  other parts of the Tempo and  the          truck,  in particular the piece  of the car  which Officer Porter                                         -16-                                          16          testified he found lying against the boy's head.  Ommaya fails to          discuss  the  "dynamics of  the  accident"  or the  "acceleration          forces", which he claims lend support to his conclusion.                    Ommaya  asserts that Robert,  Jr. would  have sustained          minor  injuries similar to those  of the other  passengers in the          car if  the lift mechanism was not present.  It is clear from the          police  photographs that the primary  damage to the  Tempo was in          the  right  rear area  of  the  car.   The  driver  of the  truck          testified that the  right rear passenger area  received the brunt          of the collision.   Regardless  of the presence  of the  snowplow          frame,  therefore, it is likely that the passenger seated in that          compartment would have been more severely injured than any of the          other passengers.                                            V.                                          V.                                      Conclusion                                      Conclusion                                      __________                    We hold that  there is no  genuine dispute of  material          fact  as to  whether the  defendant's  product was  the proximate          cause of the fatal injury to Robert Hayes, Jr.  The evidence does          not establish  that it is  more probable  than not that  the plow          frame came into contact, directly or indirectly, with the victim.          Given  the available facts, the  experts were able  to provide no          more  than  unsubstantiated  conclusions.    The  district  court          correctly granted summary judgment.  Affirmed.                                                 Affirmed                                               ________                                         -17-                                          17
