                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1693
                                    ___________

Marc Seibel; Jeanette Seibel,            *
                                         *
                      Appellants,        *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * Southern District of Iowa.
                                         *
JLG Industries, Inc., a Pennsylvania     *
corporation; Builders Sales & Service *
Co., an Illinois corporation licensed    *
to do business in the State of Iowa,     *
                                         *
                      Appellees.         *
                                    ___________

                              Submitted: February 10, 2004

                                   Filed: April 1, 2004
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.


       Marc Seibel was injured when an elevated platform he was working upon fell
over at a construction site. Seibel brought suit against JLG Industries, Inc. (JLG), the
designer and manufacturer of the lift, and Builders Sales & Service Co. (Builders),
the owner of the lift, under theories of product liability and negligent entrustment.
His wife, Jeanette Seibel, alleged loss of consortium. At the close of the plaintiffs’
case, the district court1 granted judgment as a matter of law for each of the defendants
pursuant to Federal Rule of Civil Procedure 50. The plaintiffs appeal the district
court’s exclusion of certain expert testimony and the granting of judgment as a matter
of law in favor of the defendants. We now affirm.

                                           I.

       On May 27, 1998, Seibel suffered severe and permanent injuries as a result of
an accident on a construction site in Clinton, Iowa. Seibel was an employee of the
general contractor at the site, Russell Construction Co. (Russell), and was instructed
by his supervisor to assist a co-worker, Willie Taylor, in removing a sign from the
front of a building. In order to access the sign, Seibel and Taylor used a self-
propelled elevating work platform called a scissors lift that Russell had borrowed
from Builders, a sub-contractor on the site. The emergency stop button, or “kill
switch,” was missing from the control box of this particular lift, and had been missing
for several months. As a result of the missing kill switch, the scissors lift could not
be deactivated. At the time of the accident, Seibel and Taylor were on the raised lift
platform when the lift’s controls were inadvertently activated and the lift fell over.

      Prior to working for Russell, Seibel worked for Builders and had used the same
scissors lift, with the kill switch missing, on several occasions. Seibel testified that
he was aware that the kill switch had been removed from the control box, and that he
was actually present when the kill switch was removed from the lift while he was an
employee of Builders. Seibel also testified that the purpose of the kill switch was to
prevent the lift from moving while the platform was in the air and that it would be
dangerous to be on the platform without the kill switch present and engaged.


      1
       The Honorable Thomas J. Shields, United States District Court for the
Southern District of Iowa.

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       Appellants alleged that JLG negligently designed, manufactured, and
assembled the lift and that the lift was unreasonably dangerous and defective.
Appellants also alleged that Builders was negligent because it allowed a defective lift
to be used on a job site when it knew, or had reason to believe, that Seibel would not
know or appreciate the risks inherent in using the defective lift.

       Appellants retained a consulting engineer as an expert witness. Prior to trial,
the district court granted the appellees’ motions in limine, excluding the testimony
of the expert against Builders in its entirety and limiting his testimony against JLG.
At trial, after the appellants rested their case, the appellees each moved for judgment
as a matter of law pursuant to Federal Rule of Civil Procedure 50. The district court
granted judgment as a matter of law in favor of JLG because the appellants failed to
show that the lift reached Seibel in the same or substantially the same condition as it
was when it left JLG’s control. The district court granted judgment as a matter of law
in favor of Builders because prior to the accident Seibel was aware that the kill switch
had been removed from the lift. As a result, the appellants failed to establish that
Builders did not exercise reasonable care in informing Seibel of the lift’s dangerous
condition.

                                          II.

       The district court granted JLG’s motion for judgment as a matter of law on the
basis that a substantial change had occurred to the scissors lift after its manufacture
and prior to the accident. The appellants’ brief, however, argues only that their expert
witness should have been allowed to testify and that alternative designs to the control
box were available. The appellants do not address the basis for the district court’s
grant of judgment as a matter of law in favor of JLG, causing us concern as to
whether the appellants have actually waived any challenge to the district court’s
holding. See Anderson Mktg. Inc. v. Design House, Inc., 70 F.3d 1018, 1020 (8th Cir.



                                          -3-
1995) (holding that appellate courts “may only pass on a district court’s ruling if a
party challenges that ruling on appeal by raising the issue in its opening brief”).

       Assuming arguendo that the appellants have not waived any potential challenge
to the district court’s holding in favor of JLG, on appeal our court reviews a district
court’s grant of judgment as a matter of law de novo, applying the same standard as
the district court. Fought v. Hayes Wheels Int’l, Inc., 101 F.3d 1275, 1277 (8th Cir.
1996). A court may grant judgment as a matter of law when “a party has been fully
heard on an issue and there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” Fed. R. Civ. P. 50(a)(1).

       Appellants alleged that there was a design defect in the scissors lift in that the
controls can be operated in a one-step process rather than a two-step process required
by other lifts manufactured around the same time. The one-step process, according
to the appellants, allowed the lift to be inadvertently activated causing the accident.
Appellants’ claim that the lift’s controls were defective, however, is but one element
of the prima facie case they were required to prove. Under Iowa law, the appellants
must also prove that, at the time of the accident, the lift was in substantially the same
condition as when it left JLG’s control. Fell v. Kewanee Farm Equip. Co., 457
N.W.2d 911, 918 (Iowa 1990) (requiring the plaintiff to show that the product
reached the plaintiff “without a substantial change in condition from the time it was
sold”). It is undisputed that the kill switch had been removed from the lift’s control
box and that the purpose of the kill switch was to deactivate the lift and prevent
inadvertent operation. These facts defeat the appellants’ prima facie case as the lift
clearly reached Seibel on the day of the accident in a substantially changed condition
from when it was manufactured. Appellants offer no arguments in their appeal to
negate this finding by the district court.2


      2
      We note that an argument that the scissors lift manufactured and designed by
JLG was defective because the lift could still be operated even after the kill switch

                                          -4-
       Appellants also argue that the district court erred in limiting their expert’s
testimony as to JLG. This court reviews the exclusion of expert testimony for an
abuse of discretion. Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1081 (8th Cir.
1999). We need not address whether the district court properly excluded the expert
testimony; even assuming the testimony was admitted, it would not have altered the
district court’s decision on the merits. See Kinserlow v. CMI Corp., 217 F.3d 1021,
1027 (8th Cir. 2000) (choosing not to address whether the district court abused its
discretion by excluding expert testimony because “[e]ven assuming the testimony
would have been admissible, its inclusion would not alter the result we reach today”).
Even if the appellants’ expert was able to testify in full, the appellants still would not
have made out a prima facie case against JLG because it is undisputed that the lift did
not reach Seibel in substantially the same condition as when it left JLG’s control.

                                           III.

       Appellants next argue that the district court erred in excluding their expert’s
testimony as to Builders and in granting Builders judgment as a matter of law. These
arguments are closely linked, as the appellants relied on their expert’s testimony to
establish a prima facie case that Builders violated OSHA standards by allowing
Seibel to use the lift without a kill switch, a manual, and adequate training. Again,
we review exclusion of expert testimony for an abuse of discretion. Jaurequi, 173
F.3d at 1081.

       The district court held that the expert’s testimony that Builders provided the
lift without a manual and adequate training was irrelevant because “there is
insufficient evidence in the record to show that additional training or the presence of
a manual would have prevented the accident.” (Appellant’s App. at 100.) We agree.


had been removed from the control box, may have been a stronger argument for the
appellants. No such argument, however, was presented in this case.

                                           -5-
Appellants own evidence showed that Seibel was aware of the purpose of a kill
switch, how to use a kill switch, that using the aerial platform without the kill switch
would be dangerous, and that the kill switch was missing on the day of the accident.
Seibel also testified that he had used the same scissors lift without the kill switch on
several occasions. Based on these facts, the appellants failed to establish that
Builders did not exercise reasonable care in informing Seibel of the lift’s dangerous
condition. Accordingly, we cannot find that the district court abused its discretion
in excluding the expert testimony as to the absence of a manual and training.

       The district court also excluded the expert’s testimony as to OSHA standards
because the expert failed to qualify as an expert on OSHA standards and the jury
would be able to determine whether a violation had occurred without the assistance
of an expert. The district court stated that it would take judicial notice of the OSHA
standards and instruct the jury accordingly. Appellants, however, failed to present
the OSHA standards or any evidence of an OSHA violation. We find that the district
court did not abuse its discretion in excluding the expert testimony and hold that the
appellants failed to establish a prima facie case of negligent entrustment against
Builders, in part by failing to offer any evidence of an OSHA violation during the
trial.

                                          IV.

      Appellants failed to make out a prima facie case against either JLG or Builders
and we find no reversible error in the district court’s evidentiary rulings or decision
on the merits. Accordingly, we affirm the district court.
                      ______________________________




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