                             ___________

                             No. 95-1043
                             ___________

Jeffrey J. Banks; Robin P.      *
Banks,                          *
                                *
     Plaintiffs - Appellants,   *
                                * Appeal from the United States
     v.                         * District Court for the
                                * District of Nebraska.
Harley-Davidson, Inc.;          *
Harley-Davidson of Omaha, Inc.; *
Gabriel of Canada, Ltd.,        *
                                *
     Defendants - Appellees.    *
                           ___________

                  Submitted:   September 12, 1995

                        Filed: January 9, 1996
                             ___________

Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.
                           ___________


LOKEN, Circuit Judge.


     In this diversity case, Jeffrey and Robin Banks appeal the
district court's1 grant of summary judgment dismissing their damage
claims for injuries suffered in a motorcycle accident. The issue
is whether they presented sufficient evidence that a pre-existing
defect in the motorcycle's right rear suspension unit proximately
caused the accident. We affirm.


     On July 7, 1991, as Jeffrey Banks drove his 1979 Harley-
Davidson motorcycle into a curve on Highway N41 near Lake City,
Iowa, the motorcycle suddenly fell on its right side. Banks and


      1
         The HONORABLE WILLIAM G. CAMBRIDGE, Chief Judge of the
United States District Court for the District of Nebraska.
his passenger, Robin Banks, remained with the motorcycle as it slid
across the highway and collided with a road sign.        Both were
seriously injured. After the accident, the driver of a trailing
motorcycle, Larry Sulsberger, noticed that the right rear shock
absorber and suspension unit on Banks's motorcycle had dislocated
(physically separated) from the motorcycle frame.


     Some months later, while repairing Banks's motorcycle,
Sulsberger discovered a fracture in the weld between the right rear
suspension unit and the lower eye ring which helps fasten the
suspension unit to the motorcycle frame.     Further investigation
suggested that the weld had fractured because of a manufacturing
defect -- the weld could withstand only a 3,270 pound load, instead
of the 5,000 pound load required by Harley-Davidson design
specifications. The Banks sued the manufacturer of the motorcycle,
Harley-Davidson, Inc.; the manufacturer of the shock absorber,
Gabriel of Canada, Ltd.; and the firm that installed the shock
absorbers in early 1987, Harley-Davidson of Omaha, Inc. The Banks
alleged that this defect proximately caused their injuries.


     The Banks obviously have evidence of a manufacturing defect --
the substandard weld -- that likely caused the weld to fracture in
the suspension unit of Jeffrey Banks's motorcycle.         However,
because the weld site was worn smooth, a condition known as
"peening," it is undisputed that the weld fracture occurred many
miles before the accident, which in turn means that the motorcycle
had been operated for some time with a fractured weld without
apparent difficulty.   The question then becomes, how could the
defective weld have caused the accident? The Banks' theory is (1)
the manufacturing defect caused the weld to fracture; (2) the
fracture eventually caused the suspension unit to dislocate from
the motorcycle; and (3) the dislocation caused the accident.


     After substantial discovery, defendants moved for summary
judgment. For purposes of this appeal, their relevant evidentiary

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submissions were an affidavit and deposition testimony by their
expert, Raymond Miennert, a registered professional engineer and
independent consultant with twenty-two years experience in the
motorcycle manufacturing industry and forty-five years experience
riding motorcycles. Miennert testified that he had reviewed the
other depositions, had examined Banks's motorcycle and the scene of
the accident, and had ridden a similarly equipped motorcycle having
the same fractured weld through the accident site at four different
speeds. Miennert then opined that (i) the weld was fractured a
substantial time before the accident; (ii) a right rear suspension
unit with that weld fracture would not affect the motorcycle's
handling or operation; (iii) the suspension unit was designed to
prevent dislocation despite a fractured weld; (iv) it would be
particularly unlikely for a fractured weld to cause dislocation
while two persons are riding the motorcycle because the riders'
weight further compresses the spring, thereby securing the
suspension unit in place; (v) Miennert's accident simulations
confirmed that the force of a fall is necessary to dislocate a
suspension unit having a fractured weld; and (vi) if the suspension
unit had dislocated just before the accident, eyewitness
Sulsberger, who was carefully watching the rear of Banks's cycle as
they entered the curve, would have seen "a shower of parts" coming
off the vehicle and would have seen the bike sag two or three
inches, probably causing the exhaust pipe to scrape the ground.
Based upon these opinions, Miennert concluded that the suspension
unit became dislocated as a result of the accident, when the
motorcycle struck the sign post, and that "the accident was caused
by the motorcycle being ridden too fast for the conditions through
that specific location which caused a loss of control."


     Summary judgment is appropriate when the submissions to the
court "show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c); Layton v. U.S., 984 F.2d 1496, 1499
(8th Cir.), cert. denied, 114 S. Ct. 213 (1993).        The party

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opposing summary judgment may not simply rely upon pleadings.
Summary judgment will be appropriate if that party "fails to make
a showing sufficient to establish the existence of [each] element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).    To meet their burden of proving proximate
cause under Iowa law, which the parties agree governs, the Banks
must show that the defective weld was a "substantial factor" in
producing their injuries, and that the accident would not have
occurred but for that defect. See Jones v. City of Des Moines, 355
N.W.2d 49, 50 (Iowa 1984). To defeat summary judgment, they must
show a genuine fact dispute on this issue.


     In opposing defendants' motion for summary judgment, the Banks
relied first upon the deposition testimony of eyewitness
Sulsberger. This experienced motorcyclist opined that the accident
must have been caused by the suspension unit dislocating, causing
Banks to lose control of the motorcycle. However, Sulsberger also
supported Meinnert's analysis by admitting that he was riding eight
to ten feet behind Banks's motorcycle as it entered the curve, that
he was watching its exhaust pipes, and that he never saw the bike
sag, parts fly off, or the exhaust pipes hit the pavement prior to
the accident.


     Second, the Banks relied upon Miennert's deposition admission
that, if a suspension unit did dislocate while the motorcycle was
moving, this would cause the bike to sag "a visible amount" and
could cause the rider to lose control. Third, plaintiffs relied
upon the deposition testimony of their only expert, a metallurgist
whose opinions tended to establish that a welding defect caused a
complete weld fracture some time before the accident. However,
this witness had no experience with motorcycles or suspension
systems. Therefore, he declined to express opinions regarding the
effect of a weld fracture on a driver's ability to control the
motorcycle, when the suspension unit on Banks's vehicle had

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dislocated, or whether the weld fracture was a substantial factor
in bringing about the accident.


     Based upon these submissions, the district court granted
summary judgment for defendants because "plaintiffs are unable to
establish that the particular defect in this case was the proximate
cause of their injuries."    On appeal, the Banks argue that the
district court erred in granting summary judgment because they
presented sufficient circumstantial evidence of proximate cause to
submit their case to a jury.


     Like the district court, we conclude that the Banks failed to
present sufficient evidence of proximate cause to avoid summary
judgment. Proximate cause is normally an issue for the jury under
Iowa law. But when plaintiffs seek to prove proximate cause by
circumstantial evidence, that evidence "must be sufficient to make
plaintiffs' theory asserted reasonably probable, not merely
possible, and more probable than any other theory based on such
evidence." Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739,
746 (Iowa 1977). Viewing the Banks' circumstantial evidence of
probable cause in the light most favorable to them, as we must, we
conclude they cannot meet this standard.


     There certainly was evidence of a defect that caused a weld in
the suspension unit to fracture. But defendants presented expert
testimony that a fractured weld by itself would not cause the
accident, that a fractured weld would not cause the suspension unit
to dislocate during operation, and that dislocation just before the
accident would have been observed by eyewitness Sulsberger. Those
opinions credibly attacked plaintiffs' causation theory, that the
fractured weld dislocated the suspension unit in a manner that
caused the accident. The Banks had no expert to refute Miennert's
opinions as to dislocation, even though this is a "fact issue upon
which the jury needs [expert] assistance to reach an intelligent or


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correct decision," Reed v. Chrysler Corp., 494 N.W.2d 224, 226
(Iowa 1992).


     The Banks instead responded to defendants' summary judgment
showing with only the testimony of witness Sulsberger that the
accident must have been caused by the suspension unit dislocating
just prior to the accident. But Sulsberger was neither held out
nor qualified as an expert.        Though he was an experienced
motorcycle rider and mechanic, he offered no technical analysis to
support his opinion. Thus, if he offered that opinion at trial, it
would be circumstantial evidence of causation far less probable
than Miennert's explanation and opinions. Indeed, Sulsberger's lay
opinion on the ultimate issue of causation would most likely be
inadmissible.   See Ruden v. Hansen, 206 N.W.2d 713, 717 (Iowa
1973). Thus, as in McCleeary v. Wirtz, 222 N.W.2d 409, 414 (Iowa
1974), plaintiffs failed to establish the necessary causal
relationship between the alleged welding defect and the injuries
they suffered in this tragic accident. In these circumstances, the
district court properly granted summary judgment for defendants.


     The judgment of the district court is affirmed.


     A true copy.


          Attest:


               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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