                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-3142
                                  ___________
Juan Jaurequi,                          *
                                        *
            Plaintiff - Appellant,      *
                                        *
   v.                                   *
                                        * Appeal from the United States
Carter Manufacturing Co., Inc.,         * District Court for the
                                        * Eastern District of Missouri.
            Defendant,                  *
                                        *
John Deere Company; Deere &             *
Company,                                *
                                        *
            Defendants - Appellees.     *
                                   ___________

                          Submitted: February 11, 1998
                            Filed: April 6, 1999
                                 ___________

Before McMILLIAN and HANSEN, Circuit Judges, and DAVIS,1 District Judge.
                          ___________
HANSEN, Circuit Judge.

      Juan Jaurequi brought this diversity action against John Deere Company and
Deere & Company (collectively "Deere"), alleging that design and warning defects


      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota, sitting by designation.
associated with a Deere corn head proximately caused an accident in which Jaurequi's
legs were amputated. Shortly before trial, Deere moved for the exclusion of Jaurequi's
proffered expert testimony and for summary judgment. The district court2 granted both
motions, and Jaurequi appeals. We affirm.

                                            I.
       Deere manufactures mobile combines which harvest and process various crops,
including corn, beans, and milo. Although the same combine may be used for all of
these crops, each crop requires the use of a different "head" to gather the standing crop
and convey it into the combine for processing. For example, when harvesting corn, a
corn head must be attached to the front of the combine. This case involves a 1974
Model 343 Deere three row corn head. The corn head contains several moving parts
which draw the corn stalks in and separate the ears of corn from the stalks as the
combine moves down the rows of corn. A cross auger then moves the separated ears
to the rear center of the head where the ears are deposited at the throat of the combine
and are then taken up into the bowels of the combine where they are husked and
shelled. A corn head is intended to be used only for corn, and only while the combine
is moving through a field harvesting standing corn.
       The corn head at issue in this case was manufactured and sold by Deere in
Moline, Illinois, in 1974. In 1986, Carter Manufacturing (Carter) acquired the already
used corn head on behalf of Texas Triumph Seed Company (Texas Triumph). Texas
Triumph, a specialty seed company, required a unit specially suited for harvesting small
test plots of corn. Carter constructed this specialty unit out of a 1961 Massey-Harris
combine and the Deere corn head. Both components were significantly modified so
that they could work together and so that they could accomplish Texas Triumph's




      2
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.

                                          -2-
needs. This new combination unit was suitable only for research plot use and was
named the "Carter Plot Combine." Deere was never informed or consulted regarding
the modifications made to its corn head.
       When Carter purchased the corn head, all of the original warnings Deere had
placed on it had been obliterated with green paint by a previous owner. Rather than
replacing the warnings with updated ones available from a Deere dealer, or uncovering
the original warnings, Carter again painted over the entire corn head, including the
already painted over warnings, with red paint to match the red Massey combine.
       The plaintiff, Juan Jaurequi, was an employee of Texas Triumph when the
injuries giving rise to this suit occurred. On the day he was injured, Jaurequi, together
with other Texas Triumph employees, was using the Carter Plot Combine to harvest
milo, also known as sorghum. The Carter Plot Combine had not been constructed with
this use in mind, and the unit was in fact incapable of harvesting standing milo.
However, it was possible to place hand-picked milo heads directly on the cross auger
at a point well behind the corn head's dangerous crop gathering parts where it would
then be transported to the throat of the combine. This is what Jaurequi and his
coworkers were doing on the date of the accident. The workers hand-picked the
standing milo and brought this milo in bags to the stationary but operating combine.
The workers, standing to the side and near the rear of the corn head, then dumped the
bags of milo onto the cross auger at the rear of the corn head at a point behind the corn
head's uselessly churning snapping rolls and gathering chains and hooks. This process
was necessary because Texas Triumph had neglected to bring its milo harvester to the
Missouri test plots.
       On the day before the accident, when the machine had been used to harvest corn,
Jaurequi was warned by a coworker, Jerry Anquiano, that he should never go in front
of the corn head, because the machine's dangerous moving parts would pull him into
the corn head. Additionally, on the day of the accident, Jaurequi was twice warned by




                                          -3-
Ronald Terrell, another coworker, that he should not feed the corn head from the front
because he risked being pulled in by the moving parts. Terrell instructed Jaurequi to
stand to the side of the corn head when feeding the machine. However, Jaurequi
persisted in feeding the machine from the front. On one occasion, Jaurequi moved too
close to the corn head's moving parts which gather the stalks and snap off the ears. His
legs became enmeshed in the machinery, and he sustained severe injuries to both legs
which have left him a double amputee. After the accident, Jaurequi admitted to at least
four people and on at least eight occasions that the accident was entirely his fault and
that he had been warned of the dangers. (See Jt. App. at 740-42, 748-50, 847, 850-52,
945-49, 981-82, 1066, 1093-96).

        Jaurequi later brought this products liability action against Deere, alleging that
Deere was both strictly liable and liable in negligence for failures to warn and for
design defects associated with the corn head. Central to Jaurequi's case was the
proffered "expert" testimony of Terrence Willis and Harold Wakely.
        Terrence Willis, a mechanical engineer, was prepared to testify that Jaurequi
"was not provided the necessary detail which would identify where the hazard zone
ended and the safety region began," and that "[s]uch specific information cannot be
determined visually . . . because of the speed at which the gathering chains suddenly
emerge from under the snout . . . ." (Jt. App. at 188). It was Willis's opinion that
although "the motion of the gathering chains in the immediate vicinity of the snapping
rolls is open and obvious," the risk is not obvious at the point at which the gathering
chains emerge, which is closer to the tips of the snouts. (Id. at 189). At the point of
emergence, Willis stated that the gathering hooks are invisible because they are moving
so fast. Willis admitted, however, that he had never observed the corn head at issue
while it was running (id. at 344) and that he had never seen any corn head in operation
except from the roadside during his various trips through the Illinois countryside. (Id.
at 337). When asked for the basis of his opinion that the gathering hooks are invisible




                                           -4-
when they emerge from under the snout, Willis stated, "I guess as an engineer, I know
what it looks like in the running mode." (Id. at 344).

      Willis believed that the corn head should have been equipped with "larger and
more prominent warnings." (Id. at 188). In particular, Willis proposed "a plastic
covered snout area colored with black and yellow stripes." (Id. at 189). Willis
speculated in his affidavit that, had the warnings been designed as he suggests, they
would not have been painted over. (Id. at 189). However, he admitted in his
deposition that he had no basis for this belief. (Id. at 351).

       In his affidavit, Willis stated that Jaurequi was not warned of the "specifics of
this hazard zone." (Id. at 188). In his deposition, however, Willis admitted that he had
not evaluated Jaurequi's behavior and had focused his analysis only on the question of
whether the mechanical design of the corn head was defective. (Id. at 338). He
admitted that he did not actually know what Jaurequi knew or did not know. (Id. at
343).

        Willis further opined that Deere should have incorporated "awareness barriers"
into its corn head. (Id. at 190-91, 351-55). Specifically, Willis opined that awareness
barriers would foster safety and would not interfere with the operation of the machine.
(Id. at 352-53). Willis admitted, however, that he had not studied the feasibility of this
idea, much less designed and tested it. (Id. at 354). He additionally admitted that he
was unaware of any studies indicating the effectiveness of awareness barriers, (id. at
354), and that he had never before designed an awareness barrier of any kind. (Id. at
359). Finally, Willis admitted that he was aware of no manufacturer of corn heads
which had ever put awareness barriers in front of the gathering chains as he proposed
should be done. (Id. at 354).
        Jaurequi also proffered the expert testimony of Harold Wakely, a human factors
engineer who holds a doctorate in experimental psychology. Wakely was prepared to




                                           -5-
testify that the corn head was defective because the original warning signs were too
small, too far from the point of danger, and oriented at an angle which made them
difficult to read. Additionally, Wakely was prepared to testify that the warning did not
emphasize the precise point at which the danger was concentrated. Wakely admitted,
however, that he had never read the original warnings on the corn head and did not
know what these warnings actually said. (Id. at 302-03).

       Wakely felt that alternative warnings were necessary because the gathering hook
on the gathering chain "is not visible at the time of danger but only after the greatest
hazard is passed as it moves away from the subject." (Id. at 178). Wakely stated in
his affidavit that although Jaurequi had been warned by his coworkers of general
dangers associated with the combine, Jaurequi was not aware of "the exact location of
the danger," i.e., the gathering hooks at the point of emergence under the snouts. (Id.).
This statement contradicts Wakely's deposition testimony that "I don't know what kind
of warning was given to Mr. Jaurequi." (Id. at 304).

       Wakely admitted that he has found no product of any vintage which employed
the types of warnings, stripes, and chevrons that he was advocating. (Id. at 305).
Wakely speculated in his deposition that John Deere could have made the snouts out
of plastic and that this might have made it difficult to paint over any chevrons. (Id. at
304A). When pressed, however, Wakely admitted that he had no basis for saying
"how long or if paint would stay on the plastic." (Id. at 307).

      Wakely stated for the first time in his affidavit that "the high contrast chevrons
and warnings placed on the snout as used by Hege and New Idea since 1964 and 1957
respectively would have provided a far more effective warning." (Id. at 178). In his
deposition, Wakely had admitted that he had no knowledge of chevrons being used on
corn heads at or before the time that the corn head at issue in this case was
manufactured. (Id. at 308).




                                          -6-
       Shortly before trial, Deere moved to exclude the testimony of Willis and Wakely,
and for summary judgment on all claims. The district court granted both motions, and
this appeal followed.

                                           II.

A.    Exclusion of Expert Testimony

       Jaurequi contests the district court's decision to exclude the testimony of Willis
and Wakely. We review the district court's exclusion of expert testimony for abuse of
discretion. General Elec. Co. v. Joiner, 118 S. Ct. 512, 517, 519 (1997); Peitzmeier
v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir. 1996) ("Decisions concerning the
admission of expert testimony lie within the broad discretion of the trial court, and
these decisions will not be disturbed on appeal absent an abuse of that discretion."),
cert. denied, 117 S. Ct. 1552 (1997).

       In excluding the testimony of Willis and Wakely, the district court relied on
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). Jaurequi contends
that such reliance was improper, arguing that the proffered testimony of Willis and
Wakely was not scientific but rather technical and does not fall within the scope of
Daubert.

                                        Daubert

       In Daubert, the Supreme Court determined that the Frye test, which required the
exclusion of all scientific testimony not derived from generally accepted principles or
theories, see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had been superseded
by Rule 702 of the Federal Rules of Evidence. See Daubert, 509 U.S. at 586, 588-89.
Rule 702 provides as follows:




                                          -7-
               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.

In Daubert, the Court determined that, under Rule 702, "general acceptance" is no
longer an absolute prerequisite to admissibility. 509 U.S. at 588-89. However, the
Court emphasized that trial courts must still screen proffered expert testimony for
relevance and reliability. Id. at 589.

        The Court's Daubert opinion is primarily addressed to the issue of how a trial
court should assess the reliability of scientific testimony. The Court instructed that
"[i]n a case involving scientific evidence, evidentiary reliability will be based upon
scientific validity." Id. at 591 n.9. The Court suggested that, in its attempt to
determine whether proffered scientific evidence is scientifically valid, a trial court
should ordinarily consider, among other factors, the following: (1) whether the
underlying theory or technique can be or has been tested; (2) whether the theory or
technique has been subjected to peer review and publication; (3) whether the technique
has a known or knowable rate of error; (4) whether the theory or technique is generally
accepted in the relevant community. Id. at 593-94. This list of factors is not exclusive,
and the trial court is left with great flexibility in adapting its analysis to fit the facts of
each case. Id. at 593, 594. The polestar, however, must always be "scientific
validity—and thus the evidentiary relevance and reliability—of the principles that
underlie a proposed submission." Id. at 594-95.3




       3
       While Daubert states that a trial court's focus must be on the experts' underlying
principles and methodology rather than on his conclusions, the Supreme Court has
since clarified that "conclusions and methodology are not entirely distinct from one
another," and that "[t]rained experts commonly extrapolate from existing data." Joiner,
118 S. Ct. at 519. Accordingly, "[a] court may conclude that there is simply too great
an analytical gap between the data and the opinion proffered." Id.

                                             -8-
       Jaurequi argues that the district court erred in viewing the proffered testimony
of Willis and Wakely through the lens of Daubert. Jaurequi argues that the reliability
factors expounded in Daubert should only be applied in cases involving novel scientific
evidence, and that Willis's and Wakely's testimony is not scientific but rather technical.

        The Supreme Court did not explain in Daubert how its discussion of scientific
expert testimony would impact on these other types of expert testimony. Most recently,
however, the Court has squarely held that Daubert applies to all expert testimony.
Kumho Tire Co., Ltd. v. Carmichael, No. 97-1709, 1999 WL 152455, at *4 (U.S. Mar.
23, 1999) ("We conclude that Daubert's general holding – setting forth the trial judge's
general 'gatekeeping' obligation – applies not only to testimony based on 'scientific'
knowledge, but also to testimony based on 'technical' and 'other specialized'
knowledge.") In Kumho, the expert whose testimony was excluded was a tire failure
analyst who held a master's degree in mechanical engineering and ten years of
experience at Michelin, who had testified as a tire failure consultant in other tort cases,
and who had personally examined and inspected the blown out tire at issue. The Court
reaffirmed that we are to test the district court's evidentiary ruling excluding expert
testimony under an abuse of discretion standard recognizing "that the law grants the
trial judge broad latitude to determine" whether the Daubert factors "are, or are not,
reasonable measures of reliability in a particular case." Id. at *11.
                                Cases Applying Daubert

       While this court has never attempted to map the exact boundaries within which
a Daubert-type analysis is appropriate, several of our post-Daubert, pre-Kumho cases
have applied the Daubert reliability factors to proffered expert testimony very similar
to that of Willis and Wakely in this case. See Dancy v. Hyster Co., 127 F.3d 649, 652
(8th Cir. 1997) (district court properly looked to Daubert reliability factors for guidance
regarding the admissibility of proffered expert testimony in alternative design case),




                                           -9-
cert. denied, 118 S. Ct. 1186 (1998); Peitzmeier, 97 F.3d at 296-97 (same); Pestel v.
Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995) (same).

       Our decision in Peitzmeier is particularly instructive. There the plaintiff objected
to the district court's invocation of Daubert, arguing that Daubert is inapplicable to
"opinions founded on basic engineering principles." Peitzmeier, 97 F.3d at 297. We
disagreed, writing that the Supreme Court's discussion in Daubert is relevant not only
to "novel scientific testimony," but also to engineering testimony regarding alternative
designs in products liability cases. Id. Because the expert's proposed safety
mechanisms had been neither designed nor tested, because his ideas had not been
subjected to peer review, and because the expert presented no evidence regarding his
theory's rate of error or its general acceptance, we upheld the trial court's exclusion of
the proffered expert testimony. Id. at 297-98.

      In Pestel, another alternative design case, we similarly upheld the district court's
exclusion of proffered engineering testimony, again citing relevant Daubert factors. We
pointed out that the proposed safety device had not been tested or even developed.
Pestel, 64 F.3d at 384. With regard to peer review, we noted that the expert had not
consulted others in the industry or subjected the concept to any manufacturers,
engineers, or professors for scrutiny. Id. We also noted that the plaintiff had presented
no evidence regarding general acceptance. Id. We expressly declined to consider the
fourth Daubert factor—potential rate of error—because this factor did not appear to be
relevant to our inquiry. Id.

        In Robertson v. Norton Co., 148 F.3d 905, 907-08 (8th Cir. 1998), we held that
a district court abused its Daubert discretion in admitting expert opinion concerning the
adequacy of product warnings which accompanied a heavy duty sander/grinder
because, among other reasons, the expert had not even reviewed the warnings
accompanying the grinder. Similarly, in this case the witness Wakely did not know
what the original Deere warnings said, and in fact testified that he did not care what
they had said. (Jt. App. at 302).

                                           -10-
       As these cases illustrate, it is clearly established in this circuit that when
engineers are brought in to suggest that a product should have been designed
differently, the district court does not err in looking to Daubert for guidance as to
whether such testimony should be admitted or excluded. Of course, the Daubert
reliability factors should only be relied upon to the extent that they are relevant, see
Pestel, 64 F.3d at 384, and the district court must customize its inquiry to fit the facts
of each particular case, see Daubert, 509 U.S. at 594 ("the inquiry envisioned by Rule
702 is, we emphasize, a flexible one.") (footnote omitted). In short, although

       [n]ot every guidepost outlined in Daubert will necessarily apply to expert
       testimony based on engineering principles and practical experience, . . .
       the district court's "preliminary assessment of whether the reasoning or
       methodology underlying the testimony is scientifically valid and of
       whether that reasoning or methodology properly can be applied to the
       facts in issue" is no less important.

Watkins, 121 F.3d at 990-91 (quoting Daubert, 509 U.S. at 592-93); accord Cummins,
93 F.3d at 367 n.2.

       Our Daubert approach to expert testimony is fully in accord with the Supreme
Court's decision in Kumho. Reaffirming Daubert's description of Federal Rule of
Evidence 702's inquiry as "'a flexible one'" and "'tied to the facts' of a particular 'case',"
the Court held in Kumho that it could "neither rule out, nor rule in, for all cases and for
all time the applicability of the factors mentioned in Daubert, nor can we now do so for
subsets of cases categorized by category of expert or by kind of evidence." Id. at *9
(quoting Daubert, 509 U.S. at 591, 594). The specific factors identified in Daubert
must be considered by the trial judge when they reasonably measure the reliability of
the expert's testimony. Id. at *10.

                       Application to Proffered Expert Testimony




                                            -11-
       In the case at hand, Willis was prepared to testify that the corn head was
unreasonably dangerous because it lacked awareness barriers. However, Willis has not
attempted to construct or even draw the suggested device, much less test its utility as
a safety device or its compatibility with the corn head's proper function. Nor has he
pointed to any manufacturer that incorporates awareness barriers into corn heads or
similar farming machinery. In short, he has provided no basis for us to believe that his
opinions are anything more than unabashed speculation. We therefore hold that the
district court did not abuse its broad discretion in concluding that the proffered
testimony regarding the lack of awareness barriers flunked the reliability prong of
Daubert.

       The remainder of the expert testimony proffered by Jaurequi dealt with the
sufficiency of the warnings on the corn head. As summarized above, Willis and
Wakely felt that the warnings were deficient in placement, design, orientation, and
content. However, this testimony also appears unreliable. Neither Willis nor Wakely
had created or even designed a warning device which would have been more
appropriate, much less tested its effectiveness. In fact, as indicated above, Wakely
admitted that he had never even read the warnings which Deere did employ (and which
had been painted over before Carter acquired the corn head) and that he was unaware
of their content. Finally, neither Willis nor Wakely pointed in their deposition
testimony to other manufacturers of farm machinery who were employing chevrons or
pictorial warnings in 1974. The reliability of their testimony is therefore extremely
questionable.
       The district court's studied consideration of the plaintiff's proffered expert
testimony was exhaustive and thorough. It distinctly recognized that Daubert's factors
are not exclusive and "that many factors may bear on a court's Rule 702 inquiry." (Jt.
App. at 151). Our close review of the district court's consideration of the expert




                                         -12-
testimony convinces us that it analyzed the proffered testimony in exactly the same way
the Supreme Court said the inquiry may be done under Daubert and Rule 702 (see
Kumho, 1999 WL 152455, at *14) and that its decision to exclude the testimony of
both experts was not only well within its broad discretion as to such matters, but also
correct.

       That said, the more serious problem with the proffered expert testimony on the
failure-to-warn issue is one of relevance. It is undisputed that the corn head's warnings
had twice been painted over by persons other than Deere. Neither expert had any basis
for concluding that the warnings they proposed would have escaped either painter's
brush. Thus, the alleged inadequacies of the content of these warnings cannot be
considered a cause in fact of Jaurequi's injuries. See Peitzmeier, 97 F.3d at 300 (even
if warnings were inadequate, liability will not lie unless "such inadequacy was the
proximate cause of [plaintiff's] injuries"). Deere cannot be held responsible for the
deliberate obliteration by others of Deere's warnings years after the product was sold.

       Furthermore, Jaurequi admitted to four different people on eight separate
occasions that he had persisted in loading milo from the front of the corn head even
after he had been warned of how dangerous this behavior was. Two coworkers had
instructed Jaurequi not to load milo from the front because doing so brought him into
close proximity with the dangerous moving parts of the corn head. The last of these
warnings came shortly before Jaurequi walked into the moving parts of the corn head
and lost his legs. We have held that where, "'despite deficient warnings by the
manufacturer, a user is fully aware of the danger which a warning would alert him or
her of, then the lack of warning is not the proximate cause of the injury.'" Peitzmeier,
97 F.3d at 300 (quoting Strong v. E. I. DuPont de Nemours Co., 667 F.2d 682, 688
(8th Cir. 1981)). Such was clearly the case with Jaurequi.

       These breaks in the causal chain render any insufficiencies in the painted-over
Deere warning signs irrelevant. We therefore find no abuse of discretion in the district
court's exclusion of the proffered expert testimony on the failure to warn issue.

                                          -13-
B.     Summary Judgment

       Jaurequi additionally contests the district court's grant of Deere's motion for
summary judgment. "We review a grant of summary judgment de novo, applying the
same standard as that applied by the district court," and we affirm "if the evidence,
viewed in the light most favorable to the nonmoving party, demonstrates that no
genuine issue of material fact exists and that the moving party is entitled to judgment
as a matter of law." State Farm Mut. Auto. Ins. Co. v. Shahan, 141 F.3d 819, 821(8th
Cir. 1998).
       In resistance to Deere's summary judgment motion and its highly detailed and
annotated statement of uncontested material facts, Jaurequi did not provide
countervailing citations to depositions or even a statement of contested facts. In
particular, Jaurequi did not cite to any of his deposition testimony to refute any of
Deere's factual assertions concerning Jaurequi's damaging admissions, or to dispute that
he had been specifically warned by other employees about the dangers of standing in
front of the corn head. Rather, Jaurequi relied solely on the affidavits of Willis and
Wakely. Because the district court properly excluded the proffered testimony of Willis
and Wakely, Jaurequi was left with no defense to summary judgment save a naked
pleading. This is insufficient. We have said that a district court is not "obligated to
wade through and search the entire record for some specific facts which might support
the nonmoving party's claim" White v. McDonnell Douglas Corp., 904 F.2d 456, 458
(8th Cir. 1990).
       Jaurequi's opening brief in this court claims that the district court was "ill-served
by Deere's distortions of the record," and that "Deere grossly misstated the evidence




                                           -14-
and consequently every single finding of the district court used to support its decision
was contrary to the record." (Appellant's Br. at 1, 16.) Jaurequi then sets forth more
than ten pages of alleged "true facts." (Id. at 8, et seq.) The effort comes too late. It
should have been done in response to Deere's motion before the district court. "Once
[Deere] met its burden of demonstrating a lack of genuine issues of material fact,
[Jaurequi] was required to designate specific facts creating a triable controversy."
Barge v. Anheuser-Busch, Inc., 98 F.3d 256, 260 (8th Cir. 1996). "[A] party opposing
a motion for summary judgment may not rest upon the mere allegations or denials of
the pleadings, but by affidavits or as otherwise provided in Rule 56 must set forth
specific facts showing that there is a genuine issue for trial." Dancy, 127 F.3d 653
(internal quotation marks and alterations omitted); see also Celotex v. Catrett, 477 U.S.
317, 323-26 (1986) (party resisting summary judgment may not resist a properly made
motion by referencing its pleadings). The district court was therefore correct in
granting Deere's motion for summary judgment.

                                          III.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

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




                                          -15-
