                  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  &amp;  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.

                            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.

                 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.

             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.

                            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
                   

    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
                          

          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
                          

                               -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
                    

          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
                       

          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
                        

          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
                     

          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
                  

                               -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.

                            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-
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