In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2656

DAVID MASTERS,

Plaintiff-Appellant,

v.

HESSTON CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 99 C 50279--Philip G. Reinhard, Judge.

Argued FEBRUARY 28, 2002--Decided May 31, 2002


  Before RIPPLE, MANION, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. David Masters lost
part of his right arm and severely
injured his left hand in a hay baler
accident. He sued the manufacturer,
asserting products liability and
negligence. The district judge held the
products liability claim barred by
Illinois’ statute of repose and granted
summary judgment to the manufacturer on
the negligence claim after excluding the
testimony of Masters’ proffered expert.
Masters appeals from both decisions.

  In 1996 David Masters was a sales
representative and part-time farmer
living in McHenry County, Illinois.
Masters wanted to buy a hay baler to help
him with his farm chores, and he was
interested in what seems to be known as a
"Large Round Hay Baler," one that makes
cylindrically shaped bales nearly 6 feet
tall and weighing upwards of 1,500
pounds. These bales have a more dense
exterior than smaller, rectangular bales.
Because of that density, a farmer can
store them outside without fear of
spoilage in bad weather. This saves the
hassle of loading and unloading
rectangular bales in covered areas.

  The hay baler market is not one most
people--especially city slickers--are
familiar with, so we’ll take a moment to
describe some of the products the
industry has produced. The Vermeer
Manufacturing Company introduced large
round hay balers to the American market
in 1971. Vermeer could not produce enough
balers to meet consumer demand, so it
licensed its patent to a number of
manufacturers, including the defendant
here, Hesston, which produced balers
using the design./1 Hesston called its
model the 5600.

  The 5600 used a "feed roll" system.
Here’s how it works. The baler is
attached to a tractor, which the farmer
steers over "windrows" (big lines) of hay
that have been raked. As the tractor
moves forward straddling the windrows,
tines at the lower front of the baler
direct the hay upwards to the feed intake
area, which has two rollers. Separated by
about a quarter of an inch and rotating
in opposite directions, the rollers
compress the hay and yank it back and
upwards to an inside chamber. There, the
hay runs into a rubber belt that reverses
the hay’s course, generating a rotating
motion that forms a circular bale.
Tension on the belt increases as the bale
expands; more belt is released until a
full-sized bale forms. At that point, the
operator pulls a rope. The rope is
connected to a twine tube, which swings
to the intake area. In theory, the twine
should enter the feed rolls and then the
baling chamber, wrap around the bale and
be automatically cut. A control on the
tractor allows the bale to be "puked out"
(apparently this is a hay-baler term, and
a graphic one at that, as it was used by
Mr. Masters at several points during his
deposition) the baler’s rear. Hesston
introduced its 5600 model in May 1974 and
sold it until May 1975. It sold another
model with feed rolls, the 5800, until
around 1980.

  In the fall of 1974, Sperry-New Holland
offered another type of baler, its Model
850. The 850 did not feed the hay into
the baling chamber with feed rolls.
Instead, it guided the hay onto "a moving
steel platform conveyor with saw-tooth
like protrusions" that fed the crop into
the baling chamber. Moreover, instead of
using rubber belts, the 850 used "a
continuous system of horizontal steel
slats, secured on either end by sprocket-
driven chains, to form the bale." New
Holland patented this design and sold the
850 until 1987.
  One last baler. In the spring of 1977,
Hesston introduced an above-ground baler
without feed rolls. The model, named the
5500, was known as an "open throat"
design. We have been unable to find any
schematics of this model in the record,
but for present purposes it suffices to
emphasize that the open throat design did
not use feed rolls to get hay into the
baling chamber. Hesston switched
completely to the open throat design by
1980 and has licensed it to competitors.
New Holland adopted the open throat
design in 1987.

  Now back (actually forward) to Masters.
As we mentioned, in 1996 he began
shopping for a large round hay baler.
Masters knew the general differences
between feed roll and open throat
designs. The open throat design was out
of his price range, the high end of which
was $2,500. New machines, which ran in
the range of $15,000, were also not an
option. Masters ultimately bought a
Hesston 5600 at an auction for $950;
Hesston had built and sold the machine
some 22 years earlier in the first half
of 1975.

  Masters bought the machine in August of
1997 and noticed two problems when he
tried to use it. First, the twine would
not feed properly through the feed rolls.
Masters did not know what was causing
this problem, but it was later determined
that the twine tube had been wrenched off
and then rewelded to the baler after its
initial sale but before Masters bought
it. As a result, the tube was misaligned
and did not swing properly to the intake
area.

  The second problem occurred when Masters
shut off the power if there was a full
bale in the chamber. When this happened,
the bale would not rotate when power was
resumed. This problem apparently occurred
because the bale was too heavy, causing
the belt to slip on the rollers. Thus,
the bale could not be wrapped and "puked"
from the machine. Masters handled the
twine problem by dismounting his tractor,
tying the twine to some hay, and then
tossing the hay into the feed rolls. But
because of the power problem, Masters had
to leave the baler running when
attempting this maneuver.
  On September 27, 1997, Masters was using
the baler for the third time. In the
early afternoon, after forming a full
bale, he encountered the twine-feed
problem. He stopped the tractor’s forward
movement and approached the baler (with
the power still on). He then pulled twine
from the twine tube and tied the end to
some hay, which he attempted to toss into
the feed rolls. The twine got caught, and
the momentum of the toss carried Masters’
right hand towards the feed rolls. The
result was a disaster: his right arm, up
to the mid-forearm, was quickly pulled
into the machine. Masters tried to brace
his body against the machine. He also
attempted to put his shoes in the rollers
to clog them but was unsuccessful and
injured his left hand in the process.
Realizing that he could extricate himself
only by breaking his right arm off,
Masters did just that by seesawing his
arm back and forth.

  Masters filed suit against Hesston in
Illinois state court (later removed),
alleging, as we said earlier, strict
products liability (count I) and
negligence (count II). The district
court, with Judge Philip G. Reinhard at
the controls, granted summary judgment to
Hesston on count I, holding that the
claim was barred by Illinois’ statute of
repose. With regard to the negligence
claim, the judge excluded the testimony
of Masters’ expert and granted summary
judgment to Hesston.

  First, Masters’ repose argument. The
interpretation of a statute is a question
of law, which we review de novo. Kopec v.
City of Elmhurst, 193 F.3d 894, 900 (7th
Cir. 1999). Illinois law provides that a
strict products liability action must be
brought within 12 years "from the date of
first sale" of the relevant product. 735
Ill. Comp. Stat. 5/13-213(b). Masters’
baler was originally made and sold in
1975, 24 years before Master filed suit,
so unless Masters can fit under an
exception, the claim is barred.

  Masters invokes the statute’s
"alteration" exception. The alteration
provision allows a strict products
liability suit for an injury resulting
from "an alteration, modification or
change of the product unit" after its
first sale if:
(1) the action is brought against a
seller making, authorizing, or furnishing
materials for the accomplishment of such
alteration, modification or change (or
against a seller furnishing
specifications or instructions for the
accomplishment of such alteration,
modification or change when the injury is
claimed to have resulted from failure to
provide adequate specifications or
instructions), and

(2) the action commenced . . . within 10
years from the date such alteration,
modification or change was made . . . ,
and

(3) when the injury or damage is claimed
to have resulted from an alteration,
modification or change of a product unit,
there is proof that such alteration,
modification or change had the effect of
introducing into the use of the product
unit, by reason of defective materials or
workmanship, a hazard not existing prior
to such alteration, modification or
change.

735 Ill. Comp. Stat. 5/13-213(c)(1)-(3).

  Under Illinois law a plaintiff has the
burden of showing that an exception to a
statute of repose applies. Blair v.
Blondis, 513 N.E.2d 157, 159 (Ill. 1987)
(placing on plaintiff the burden of
showing an exception to a statute of
limitations); Ocasek v. City of Chicago,
656 N.E.2d 44, 47 (Ill. App. Ct. 1995)
(noting that after a defendant provides
sufficient evidence to warrant judgment
as a matter of law on a statute of repose
defense, "the plaintiff has the burden of
proving that any exception to that law
applies"); see also Knox v. Cook County
Sheriff’s Police Dept., 866 F.2d 905, 907
(7th Cir. 1988) ("While the statute of
limitations is an affirmative defense,
the burden of establishing an exception
thereto is on plaintiff.").

  We can discern two possible alteration
theories in this case. The first would
identify the alteration as the rewelding
of the twine tube to the 5600. The
rewelding misaligned the tube, requiring
Masters to hand-feed the twine into the
rollers, leading to his injury. This
theory has two problems. First, with
regard to subsection 213(c)(1), there is
no evidence that Hesston rewelded the
tube, authorized the rewelding, or
furnished materials for its
accomplishment. Nor did Hesston provide
"specifications or instructions" for the
repair. The only argument, therefore, is
that Hesston’s failure to provide such
instructions meant that it failed "to
provide adequate specifications or
instructions." But the statute would
appear to apply only "against a seller
furnishing specifications or instructions
for the accomplishment of" the
alteration. And, to repeat, there is no
evidence that Hesston provided such
instructions to the rewelder. Second,
Masters did not track down the "do-it-
yourselfer," so we don’t know when the
rewelding occurred. Because subsection
213(c)(2) requires a plaintiff to file
suit within 10 years of the alteration,
Masters cannot meet his burden.

  Realizing these problems, Masters
focuses on a second theory. He contends
that the alteration was not the rewelding
of the twine tube but rather the failure
by previous users to fix the improperly
rewelded twine tube, which he classifies
as a "failure properly to maintain" the
product. This operates to extend the
repose period against Hesston, Masters
argues, because its instruction manual
(or at least the one Masters bought) did
not warn users to be on the lookout for
improperly rewelded twine tubes.

  Masters’ first premise--that a failure
to properly maintain a product is itself
an alteration--is wrong under the
statute. The statute defines "alteration,
modification or change" (redundantly) as
"an alteration, modification or change
that was made in the original makeup,
characteristics, function or design of a
product or in the original
recommendations, instructions and
warnings given with respect to a product
including the failure properly to
maintain and care for a product." 735
Ill. Comp. Stat. 5/13-213(a)(1). The
definition is disjunctive: an alteration
means either changes to the product or
changes to the recommendations,
instructions, and warnings pertaining to
the product. Because the phrase
"including the failure properly to
maintain and care for a product" modifies
the latter prong, any content found in
recommendations, instructions, and
warnings regarding the failure to
maintain a product is a possible object
of alteration that can toll the repose
statute (assuming the injury results from
the alteration). But the definition still
requires "an alteration, modification or
change that was made . . . in the
original recommendations, instructions
and warnings" (all italics added). Even
assuming that Masters’ manual, which is
in the record, mirrors the original one,
there is no evidence of a change to the
original recommendations, instructions,
or warnings regarding the failure to care
for the 5600.

  Although Masters has spilled a lot of
ink arguing that Hesston’s engineers
could foresee that the twine tube might
break off and be rewelded, his argument
misses the point of the statute of
repose. The statute sets a fixed period,
starting from the first sale or
alteration of a product, during which a
plaintiff can bring a strict products
liability suit against a manufacturer.
Masters’ theory--that the alteration date
is extended each day a user fails to fix
a problem because he did not have warning
from the company--would extend the start
of the repose period indefinitely. Even
assuming that Hesston should have warned
users about the twine tube, the point for
present purposes is that Hesston did not
make that mistake by altering its
instructions or warnings in the 10 years
preceding Masters’ suit. Illinois’ repose
statute makes that fatal to his products
liability claim.

  And that leaves the negligence claim.
Illinois imposes a duty on a manufacturer
to make a product that is reasonably
safe. Baltus v. Weaver Div. of Kidde &
Co., 557 N.E.2d 580, 585 (Ill. App. Ct.
1990). To show a breach of that duty, a
plaintiff must show that a manufacturer
failed to use the then-existing standard
of care in designing or manufacturing a
product. Id. at 585-86. On appeal,
Masters has two theories of negligence:
(1) that Hesston was negligent in
designing a baler with feed rolls; and/or
(2) that Hesston was negligent in
designing a baler with unguarded feed
rolls. Masters offers the expert
testimony of Paul Walker to show the
relevant standard of care governing the
design of large round hay balers in 1974-
75 and to show that Hesston breached that
standard of care in designing the 5600
machine.

  Masters does not argue on appeal that
summary judgment was inappropriate even
if Walker’s testimony was properly
excluded. So the key issue is whether
Judge Reinhard erred by excluding
Walker’s testimony. In Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the Supreme Court held that
district judges play a "gatekeeping" role
in maintaining scientific expert
testimony within proper bounds. Daubert
required judges to determine that
scientific testimony offered under
Federal Rule of Evidence 702 is both
relevant and reliable, 509 U.S. at 589,
an inquiry required also for technical
and other specialized expert testimony,
Kumho Tire Co. v. Carmichael, 526 U.S.
137, 149 (1999). Testimony is relevant if
it assists the trier of fact in
understanding the evidence or in
determining a fact at issue. To gauge
reliability, the district judge must
determine whether the expert is qualified
in the relevant field and whether the
methodology underlying the expert’s
conclusions is reliable. Smith v. Ford
Motor Co., 215 F.3d 713, 718 (7th Cir.
2000). A district judge’s application of
Daubert to exclude expert testimony as
unreliable is reviewed for an abuse of
discretion. General Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997). And as the
majority and dissenting opinions in Dura
Automotive Systems of Indiana, Inc. v.
CTS Corp., 285 F.3d 609 (7th Cir. 2002),
recently reveal, the proper methodology
to be employed in cases raising "Daubert"
issues is subject to some dispute,
although it’s not really in dispute in
this case.

  Everyone seems agreed that Walker’s
testimony is relevant--indeed, that
explains why it is worth fighting over--
and it is clear to us that Walker is no
hayseed. He is a registered professional
engineer and a professor of agricultural
engineering at Penn State University.
Thus, the only disputed issue is whether
Walker’s opinions in this case have been
reached through a reliable methodology.

  Walker finds the relevant standards of
care in guidelines promulgated by the
American Society of Agricultural
Engineers (ASAE) and in basic principles
of engineering. Cf. Anderson v. Hyster
Co., 385 N.E.2d 690, 692 (Ill. 1979)
(noting that one way of proving that a
product is not reasonably safe is to show
that its design did not meet existing
industry standards). Walker noted that
principles of engineering design dictate
clear rules for dealing with safety
hazards. The two relevant principles, as
stated in Walker’s report, provide:
"Where possible the design should
eliminate or reduce the hazard. If the
hazard cannot be eliminated without
unduly restricting the function of the
machine, then the hazard should be
guarded." Referring to ASAE Standard
R275, Walker claims that rotating
components such as feed rolls, which can
form dangerous "pinch points," were
recognized as hazards as early as 1964.
In the case of a hay baler, it was known
that feed rolls could aggressively pull a
victim into the baling chamber and cause
severe injury.

  So far, so good. We find little problem
with Walker’s testimony as to the
relevant standard of care. Where Walker
runs into trouble, however, is in
applying these standards to the design of
the 5600 and concluding that it breached
them. See Fed. R. Evid. 702 advisory
committee’s notes on 2000 amendments
(noting that the court "must scrutinize
not only the principles . . . used by the
expert, but also whether those principles
. . . have been properly applied to the
facts of the case"); Cummins v. Lyle
Indus., 93 F.3d 362, 367 n.2 (7th Cir.
1996) (applying Daubert’s general
reliability requirement in the context of
"as applied" scientific problems). Walker
opined that Hesston breached the first
principle of engineering by not
eliminating feed rolls on the 5600. But
the engineering principle did not ban
feed rolls. Rather, feed rolls should be
eliminated "[w]here possible" and
"without unduly restricting the function
of the machine." Walker provides no basis
for concluding that eliminating the
5600’s feed rolls would not have unduly
restricted its function. His report did
not say how the 5600 could have
functioned without feed rolls. Indeed, in
response to questioning, Walker
hypothesized only that the feed rolls
could be moved under the machine. Even
then, Walker expressed no opinion, likely
because he had done no testing or
research on which to base one, that this
redesign would not unduly restrict the
5600’s baling ability.

  Walker instead pointed to the New
Holland 850, which was introduced in
1974, to show that hay could be baled
without feed rolls. But Walker did not
test the New Holland 850 (he reviewed
only the operator’s manual) or offer
independent industry studies on its
functioning, so there is a gaping hole
between his premise (that the 850
existed) and his conclusion (that the 850
baled hay as well as the 5600). Walker
filled this gap merely by assuming that
because New Holland had been a "very
successful manufacturer," its baler must
have been a "reasonably high quality
product."/2

  Walker also stated that the technology
for "open throat" designs, which do not
use feed rolls, was available in 1975.
Again, Walker did not test the open
throat design, so we are left with little
inkling as to its comparative
functionality. Even if the open throat
design improved function, which
apparently it did, Walker’s premise as to
timing is suspect. Hesston pioneered the
open throat design, and it is undisputed
that it did not hit the market until
1977, 2 years after Hesston made Masters’
or the relevant 5600 machine./3 Rex
Weigand, who oversaw Hesston’s
development of the product in 1975 and
1976, produced his records, including a
diary of that process. Walker only
"skimmed" these records and could not
opine that Hesston could have produced
this innovation any faster. In fact,
Walker thought that a few years seemed a
"reasonable amount of time to develop a
new product." So we are at a loss to
determine how Walker concluded that
Hesston could have produced its open
throat baler in 1975.

  Walker’s other conclusion, that Hesston
breached the second engineering principle
by not guarding the feed rolls, is
similarly unreliable. Again, the
principle and the governing ASAE standard
did not mandate guarding. Rather, to
quote the then-existing standard (ASAE
S318.4, section 8.9): "Functional
components such as . . . feed rolls . .
. , which must be exposed for proper
function shall be shielded to the maximum
extent permitted by the intended function
of the component(s)" (italics added). In
Walker’s words, guards must be provided
"but only to the extent that the guards
do not unduly interfere with the
operation of the feed roll." So we come
back to the same problem: Walker did not
analyze the impact of any proposed guards
on the 5600’s function. He did no design
work, no testing, and no measurements of
a proposed guard. He merely sketched a
guard in response to questioning at his
deposition and estimated that the guard
should be from 3 to 24 inches off the
ground. Walker also pointed to John
Deere’s Model 410, which had a guard. But
that model was not on the market until
1977. In fact, Walker was not sure the
John Deere model even had feed rolls.
Even assuming that model had feed rolls,
Walker did not test the guard to see how
it affected their functioning. He had not
seen the model in person but had only
reviewed a parts listing and a videotape.
Without analyzing the guard, Walker could
not reliably opine that the guard would
not impede hay baling.

  In sum, Walker’s opinions that the 5600
breached the relevant standards of care
in 1974-75 were not reliably reached. The
district judge did not abuse his
discretion by excluding them.
AFFIRMED.

FOOTNOTES

/1 Hesston merged with AGCO Corporation in 1992.
Since the parties have referred to Hesston in
their briefs, we will too.

/2 Masters argues on appeal that Walker referred to
the 850 only to show, in applying industry stan-
dards, that other ways of baling hay were "possi-
ble." He denies advancing an "alternative design"
theory of negligence. Good thing, since Walker
has no basis for concluding that the 850 was
safer than the 5600. Walker did not test the
850’s safety or reference independent studies
that had. In fact, Walker admitted in his deposi-
tion that he could not opine that any of the
designs on the market in 1974-75 were reasonably
safe. Judge Reinhard put it nicely when he wrote:
"Walker cannot simply point to the New Holland
hay baler and state that it lacks a pinch point,
ergo it is safer."

/3 We realize that the factual underpinnings of an
expert’s analysis are matters best left to the
trier of fact. Smith, 215 F.3d at 718. There is
no dispute as to this date, however
