                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 04-1042
                                 ___________

Shannon Unrein,                         *
                                        *
            Plaintiff - Appellant,      *
                                        *
      v.                                *
                                        *
Timesavers, Inc.,                       *
                                        *
            Defendant Third Party       * Appeal from the United States
            Plaintiff - Appellee,       * District Court for the District
                                        * of Minnesota.
      v.                                *
                                        *
Foley-Martens Company,                  *
also known as Foley-Belsaw Company, *
a Minnesota corporation,                *
                                        *
            Third Party Defendant -     *
            Appellee.                   *
                                   ___________

                           Submitted: November 18, 2004
                              Filed: January 10, 2005
                               ___________

Before MURPHY, LAY, and MELLOY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.
      Shannon Unrein was injured at work while operating an industrial sander
manufactured by Timesavers, Inc. She sued the manufacturer for a defective product,
and the district court1 granted summary judgment to Timesavers. Unrein appeals,
arguing that the district court erred by excluding the testimony of her expert witness.
We affirm.

       Unrein was injured on February 6, 2001 while working in the Kingsford,
Michigan plant of Foley-Martens. Her job was to brand logos onto wooden cutting
boards and similar items, and she occasionally had to use the Timesavers sander to
remove flaws in the boards. While she was feeding individual boards into the sander
that day, she noticed that two boards had come together on the conveyor belt and
were moving along one on top of the other. When she reached out to dislodge one
of the boards, her right arm was pulled into the machine all the way up to the elbow.
She tried to pull her arm out, but it was caught and she was unable to turn off the
machine. She screamed, and two other workers came to help. One of them turned the
machine off with a button apparently located on the back of the sander, and the other
lowered the table inside the sander to release her arm. There were no witnesses to the
accident, and Unrein does not know how the two boards came together on the belt or
exactly how her arm was pulled into the sander.

       Unrein sustained serious injuries to her hand and arm. The sanding belt came
into contact with her hand, resulting in a "crush degloving" injury which exposed
bone, shredded tendons, and caused tissue loss. She underwent four surgical
procedures, physical therapy, and treatment at a pain clinic. She cannot move the
index and middle fingers of her right hand and has only limited ability to move the
other fingers. She has no feeling on the top of the hand where the skin was grafted,



      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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and she has numbness in her forearm, with scarring on the underside from contact
with the conveyor belt.

      Unrein filed a products liability suit against Timesavers, alleging defective
design and failure to warn, and Timesavers in turn filed a third party contribution
claim against Foley-Martens. Both are Minnesota corporations, but the Foley-
Martens plant where Unrein was injured is in Michigan and she was paid worker
compensation benefits under Michigan law, which unlike Minnesota law does not
permit contribution claims against an employer. The district court denied as moot the
summary judgment motion of Foley-Martens on the claim for contribution since
summary judgment was entered against Unrein in the main action. Because of our
disposition of Unrein's claim, we need not decide which state law applies to the
contribution claim or reach its merits.

       To prove her products claim Unrein engaged Tarald O. Kvalseth, Ph.D., to
provide expert testimony. Dr. Kvalseth has graduate degrees in industrial engineering
and an undergraduate degree in mechanical engineering. He is a professor of
mechanical engineering at the University of Minnesota where he specializes in
human factors engineering and safety. He has worked for some thirty years as an
industrial consultant in the areas of human factors engineering, occupational safety,
methods engineering, and work measurement. Previously he also worked as a design
engineer. In preparation for his testimony in this case, Dr. Kvalseth reviewed various
documents relating to the sander, the litigation, and safety standards. He also
inspected the sander and watched a video showing it in operation. He then wrote a
report outlining his proposed testimony.

      Dr. Kvalseth's report stated that the sander was defectively designed and
unreasonably dangerous because the infeed area lacked safeguarding. He stated that
without proper safeguarding, an operator's hand could get caught in the "nip point"
between the conveyor belt and the pinch roll; serious injury could result. Dr.

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Kvalseth further observed that the sander lacked a braking device that would make
the conveyor belt stop quickly. In his opinion it took too much time for the conveyor
belt to halt after one of the emergency stop buttons was pressed, and such a delay
would enhance the injury to an operator whose hand was caught in the nip point.
Although the machine had a warning posted on it ("Do not place hands between work
piece and conveyor belt or near rolls"), the warning was no substitute for a design
solution according to Dr. Kvalseth. In his opinion the most important measure for
safety is to "design the hazard out of the machine." The next most important is to
safeguard against the hazard.

       Dr. Kvalseth discussed several different ways in which the Timesavers sander
could be made safer. He said initially that a guard could be installed to serve as a
physical barrier between the operator and the nip point. Such a guard would need to
have an adjustable opening to accommodate wood of different dimensions and would
need to be properly located to comply with safety guidelines. Other than pointing out
these features in his report, he did not develop the guard concept further. He also
discussed using a light beam attached to a brake so that if a hand were to cross the
light beam, the conveyor belt would come to a quick stop. He pointed out that Foley-
Martens had installed a light beam and fast brake in the sander after Unrein's
accident, but he stated without explanation that this approach "would not generally
have provided adequate protection for this nip point."

       The "preferred and appropriate design solution" described in Dr. Kvalseth's
report would have used "a continuous safety trip cord along the outside of each of the
three sides of the infeed area of the sander," together with a brake to stop the
conveyor belt quickly. Dr. Kvalseth stated that a sanding machine equipped in this
way would halt if the operator were to hit the trip cord or press against it in an
emergency. In Dr. Kvalseth's opinion, Unrein's injury would not have occurred if the
sander had been designed as he proposed. According to his report, safety trip cord
technology was first patented in 1904 as "safety gear for ironing machines." He

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claims that this technology has been used on a wide variety of equipment and
machinery, but the report does not identify any of these other applications.

       Timesavers moved for summary judgment on both claims. It argued that
Unrein presented no evidence from Dr. Kvalseth's report or elsewhere that the
warnings on the sander were inadequate or that the lack of some particular warning
caused her injuries. The district court concluded that summary judgment on the
failure to warn claim was appropriate even if Dr. Kvalseth's proposed testimony were
admissible because his report did not state that the warnings posted on the sander
were inadequate and Unrein presented no evidence to support that claim. She does
not appeal this ruling.

       Timesavers also argued to the district court that the defective design claim
should be dismissed because Dr. Kvalseth's proposed testimony was unreliable and
that Unrein would not have a submissible case without it. In its analysis of the
admissibility of Dr. Kvalseth's proposed testimony, the court applied Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court observed that Dr.
Kvalseth had not furnished a design of his proposed safety features. Although he
stated that safety trip cords are in widespread use, he gave no examples of their use
with other industrial sanders or similar machines. The court concluded that Dr.
Kvalseth had not shown that his suggested measures were feasible and compatible
with the sander's operation, and his proposed testimony was therefore inadmissible.
Because Unrein had presented no other evidence linking her injuries to any defective
design of the sander, the court granted summary judgment to Timesavers. Unrein
appeals this ruling.

      Unrein argues that the district court erred in excluding Dr. Kvalseth's proposed
testimony because it met the requirements of federal law and because Minnesota
substantive law does not require proof of the feasibility of alternate designs in a
design defect case. Since the admissibility of expert testimony in diversity cases is

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governed by federal law, Clark v. Heidrick, 150 F.3d 912, 914 (8th Cir. 1998), we
must focus on whether the proposed testimony meets the federal standard for
admissibility. The district court's decision to exclude Dr. Kvalseth's opinion is
reviewed for an abuse of discretion. Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,
296 (8th Cir. 1996).

       Federal Rule of Evidence 702 applies to admission of expert opinion, and it
provides that: "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." Timesavers does not claim
that Dr. Kvalseth is unqualified to render an opinion, but it contends that his opinion
would not assist the trier of fact.

       In Daubert the Supreme Court discussed the district court's gatekeeper role in
screening expert testimony for reliability and relevance. See 509 U.S. at 589. Some
of the factors it identified for evaluation of proffered testimony were whether the
theory or technique is subject to testing, whether it has been tested, whether it has
been subjected to peer review and publication, whether there is a high known or
potential rate of error associated with it, and whether it is generally accepted within
the relevant community. Id. at 593-94. This evidentiary inquiry is meant to be
flexible and fact specific, and a court should use, adapt, or reject Daubert factors as
the particular case demands. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
141-42 (1999). There is no single requirement for admissibility as long as the proffer
indicates that the expert evidence is reliable and relevant.

      Timesavers argues that Dr. Kvalseth's proposed testimony must be excluded
because it did not satisfy any of the Daubert factors. Timesavers focuses in particular
on the fact that Dr. Kvalseth's proposal had not been tested, stating in its brief that
engineers who design new devices almost always test their hypotheses. Timesavers

                                          -6-
went further in oral argument, suggesting that Dr. Kvalseth's proposed testimony
would be admissible only if he had constructed a functional sander installed with his
suggested safety trip cord and brake.

        Our cases do not require that experts manufacture a new device or prototype
in order for their opinion to be admitted. The question is whether the expert's opinion
is sufficiently grounded to be helpful to the jury. We conclude that Dr. Kvalseth's
proffered opinion lacked indicia of reliability for other reasons. Although he
proposed using a safety trip cord, a commonly used device, he did not prepare
drawings showing how it would be integrated into the Timesavers sander or present
photographs showing its use with similar machines. See Dancy v. Hyster, 127 F.3d
649, 651-52 (8th Cir. 1997) (excluding testimony of expert who had not designed
proposed safety device or pointed to its use on similar machines). Dr. Kvalseth
provided even less information about how the brake would function. An expert
proposing safety modifications must demonstrate by some means that they would
work to protect the machine operators but would not interfere with the machine's
utility. See Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1084 (8th Cir. 1999);
Peitzmeier, 97 F.3d at 297.

       Unrein relies on Lauzon v. Senco Pruducts, Inc., 270 F.3d 681 (8th Cir. 2001),
where there was a greater showing of reliability for the expert's opinion. The expert
opinion in Lauzon was based in part on a very thorough examination and analysis of
the bottom fire nail gun and its functioning. The expert measured the trigger force,
the force needed to activate the bottom contact point, and the nail speed from various
distances. He also performed a pendulum test to measure recoil forces, and he
reproduced the site of the accident to reenact the work the plaintiff had been doing
with the nail gun. Id. at 689. Additionally, the expert in Lauzon was prepared to
testify that the bottom fire nail gun should be taken off the market because it was
inherently dangerous and that the sequential fire nail gun would work just as well and



                                         -7-
was safer. Id. at 685. Because the expert was not proposing to modify the nail gun,
there were no concerns about feasibility or compatibility.

      In this case we conclude that the district court did not abuse its discretion in
excluding Dr. Kvalseth's proposed testimony. The judgment of the district court is
therefore affirmed.
                       ______________________________




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