                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           NOV 28 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 JEANNINE VANOVER, in her
 individual capacity and as
 administratrix of the Estate of Samuel
 D. Vanover; DAVID VANOVER,
 SAM VANOVER,                                           No. 03-5016
                                                 (D. Ct. No. 01-CV-285-K)
               Plaintiffs - Appellants,                 (N.D. Okla.)

          v.

 ALTEC INDUSTRIES, INC., an
 Alabama corporation,

               Defendant - Appellee.




                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and HENRY, Circuit Judges.


      Plaintiff-Appellants Jeannine Vanover, et al., (“the Vanovers”) brought

Missouri state-law products liability, breach of warranty, and negligent

maintenance claims after decedent, a technician for an electric company, was

electrocuted while working in an aerial lift. The district court granted Defendant-

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellee Altec Industries, Inc. (“Altec”) summary judgment on insufficiency of

the evidence grounds. We AFFIRM.

                                     I. Background

      Decedent was employed by the Par Electric Company as a lineman. On

April 19, 1999, in Warrensburg, Missouri, he was working in an aerial lift device

(“the lift”). The lift consists of a boom mounted on a truck with a work platform,

or “bucket,” attached that lifts electrical technicians to work on power lines.

Decedent and his coworker, Eugene Barkley, were in the lift installing a non-

energized line onto an insulator, while the third member of the crew, John Frank,

remained on the ground operating the lift. To perform this work, Frank passed

the bucket underneath energized lines and then elevated it to a position two to

three feet from an energized line.

      Immediately prior to the accident, decedent was lifting a grounded, non-

energized line to install it. During this process, Mr. Barkley heard and felt a large

explosion, which knocked him down. Mr. Barkley turned and saw fire moving

over the top of the bucket and heard loud noises. Mr. Barkley saw decedent

slumped on his knees over the edge of the bucket with his shirt ablaze. Mr.

Barkley attempted, in vain, to extinguish the flames on decedent’s shirt.

Simultaneously, Mr. Frank told a passerby to call 911 and took manual control of

the lift’s boom in an effort to bring it to the ground. Mr. Frank managed to move


                                          -2-
the bucket laterally, away from the power lines. When he began to lower the

bucket, however, a second explosion occurred, which engulfed the bucket in fire.

The boom’s controls seized. Mr. Barkley leapt from the bucket, while Mr. Frank

attempted to extinguish the flames from the ground. Although the fire was

intense, the autopsy report indicates that decedent died as a result of

electrocution.

      Approximately a week earlier, Altec, the lift’s manufacturer, repaired the

boom control handle mounted in the bucket, pursuant to a warranty issued to the

electric company. 1 Prior to this repair, the “O-ring” on the control handle leaked

hydraulic fluid. After the accident, Mr. Barkley observed a smudged residue on

the corner of the bucket, which looked to him like a “wipe up” of hydraulic fluid.

Mr. Barkley also testified that a day or two before the accident, he noticed oil

leaking from the bucket-control handle.

      The Vanovers, as personal representatives and heirs, sued Altec in the

Northern District of Oklahoma pursuant to diversity jurisdiction. 28 U.S.C.

§ 1332. The district court held, and the parties on appeal concur, that Missouri

law applies. The Vanovers brought three theories of recovery: (1) products


      1
        Altec’s computer records indicate that the repair took place on April 22,
1999, but hand-written records show that the repair occurred on April 12, 1999.
The district court found that, because the bucket was essentially destroyed in the
fire on April 19, 1999, Altec’s position that the computer record resulted from a
typographical error was the only believable view as to the date of repair.

                                          -3-
liability (both design defect and manufacturing defect), (2) breach of warranty, 2

and (3) negligent repair. The manufacturing-defect and negligent-repair claims

rely on the same circumstantial evidence. These claims assert that a

manufacturing defect, or excess hydraulic fluid negligently left on the bucket

after the repair, compromised the dielectric properties 3 of the bucket. This caused

a path to the ground to be formed from the adjacent energized line through the

decedent and the boom.

      As to the design-defect claim, the Vanovers contend that the boom should

have incorporated a manual release device capable of overriding the mechanism

that locks the boom in place following a loss of hydraulic pressure, allowing the

boom to lower to the ground in emergency situations. With the presence of such a

device, the Vanovers contend that the boom could have been lowered and

decedent could have received emergency CPR. To support this release-device

theory, the Vanovers sought to present the expert testimony of mechanical

engineer R. K. Tessman, Ph.D.


      2
         The Vanovers, in their motion opposing summary judgment, conceded
that, under Missouri law, the products liability claim subsumes their breach of
warranty claim, citing Sharp Brothers Contracting Co. v. American Hoist &
Derrick Co., 703 S.W.2d. 901 (1986). We accept the Vanovers’ position on this
matter for the purposes of this appeal and omit any further independent reference
to the Vanovers’ breach of warranty claim.
      3
         The property of certain materials to inhibit the flow of electricity,
effectively insulating the occupants of the bucket from electric shock.

                                          -4-
      Altec moved for summary judgment, which the district court granted. The

district court, considering the manufacturing-defect and negligent-repair claims,

held that the Vanovers presented insufficient evidence to support an inference

that a dielectric failure of the bucket caused decedent’s injuries. As to the

design-defect claim, the district court held that the proposed expert testimony of

Dr. Tessman was inadmissible under Fed. R. Evid. 702 and Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Thus, the district court held

that the Vanovers presented insufficient evidence to state a claim under any

theory of recovery. The Vanovers timely filed their notice of appeal. We take

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                    II. Discussion

A.    Standard of Review

      We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, 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). We view the evidence, and

draw reasonable inferences therefrom, in the light most favorable to the


                                          -5-
nonmoving party. Byers, 150 F.3d at 1274.

      Although the movant must show the absence of a genuine issue of material

fact, she need not negate the nonmovant’s claim. See Jenkins v. Wood, 81 F.3d

988, 990 (10th Cir. 1996). Once the movant carries this burden, the nonmovant

cannot rest upon her pleadings, but “must bring forward specific facts showing a

genuine issue for trial as to those dispositive matters for which [she] carries the

burden of proof.” Id. “The mere existence of a scintilla of evidence in support of

the nonmovant’s position is insufficient to create a dispute of fact that is

‘genuine’; an issue of material fact is genuine only if the nonmovant presents

facts such that a reasonable jury could find in favor of the nonmovant.”

Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).

      We review a district court’s decision to exclude evidence at the summary

judgment stage under the same standard we use when an evidentiary ruling

reaches us after trial. Mitchael v. Intracorp, Inc., 179 F.3d 847, 854 (10th Cir.

1999). When reviewing a Daubert ruling,

      we review de novo the question of whether the district court
      performed its gatekeeper role and applied the proper legal standard in
      admitting an expert’s testimony. We then review for abuse of
      discretion the trial court’s actual application of the gatekeeper
      standard in deciding whether to admit or exclude an expert’s
      testimony. The trial court’s broad discretion applies both in deciding
      how to assess an expert’s reliability, including what procedures to
      utilize in making that assessment, as well as in making the ultimate
      determination of reliability. Accordingly, we will not disturb the
      district court’s ruling unless it is arbitrary, capricious, whimsical or

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      manifestly unreasonable or when we are convinced that the district
      court made a clear error of judgment or exceeded the bounds of
      permissible choice in the circumstances. Goebel v. Denver & Rio
      Grande Western R.R. Co., 346 F.3d 987, 989-90 (10th Cir. 2003)
      (internal quotations omitted) (citations omitted).

B.    The Manufacturing-Defect and Negligent-Repair Claims

      We affirm the district court’s ruling that the Vanovers fail to present

sufficient evidence of causation on either the manufacturing-defect or the

negligent-repair counts. Both parties on appeal agree that the Vanovers present a

circumstantial-evidence case in regard to the manufacturing-defect and negligence

claims. 4 Missouri law allows such an approach. See, e.g., Daniel v. Indiana Mills

& Mfg., Inc., 103 S.W.3d 302, 309 (Mo. Ct. App. 2003) (“The existence of a

defect may be inferred in a products liability action from circumstantial

evidence.”); United Missouri Bank, N.A. v. City of Grandview, 105 S.W.3d 890,

899 (Mo. Ct. App. 2003) (“[A] plaintiff is not required to prove all elements of


      4
       Under Missouri law, the elements of a strict-liability manufacturing-defect
claim are: “(1) The defendant, wherever situated in the chain of commerce,
transferred a product in the course of his business; and (2) The product was used
in a manner reasonably anticipated; and (3) . . . (a) The product was then in a
defective condition unreasonably dangerous when put to a reasonably anticipated
use, and the plaintiff was damaged as a direct result of such defective condition
as existed when the product was sold . . . .” Mo. Rev. Stat. § 537.760. The
elements of a negligent-repair claim are: “1) the existence of a duty; 2) breach of
that duty; 3) injury proximately caused by breach of that duty; and 4) actual
damages.” In re Complaint of Jessup for Exoneration from, or Limitation of,
Liab., 196 F. Supp. 2d 914, 918 (E.D. Mo. 2002) (applying Missouri law to a
negligent repair of a yacht claim) (citing Hoover's Dairy, Inc. v. Mid- Am.
Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 431 (Mo. 1985)).

                                         -7-
negligence by direct evidence. The elements of negligence may be shown by

circumstances from which they may be inferred.”).

       Missouri law distinguishes between circumstantial evidence that supports

reasonable inferences, which constitutes a claim submissible to the jury, and mere

speculation, which does not. Proof of the essential elements of a claim by

circumstantial evidence may be used only when the circumstantial evidence

establishes the inferred fact “with such certainty as to cause it to be the more

probable of the conclusions to be drawn.”     Vaughan v. Taft Broadcasting Co.   , 708

S.W.2d 656, 661 (Mo. 1986);     see also Morris v. Israel Brothers, Inc   ., 510 S.W.2d

437, 442 (Mo. 1974). Circumstantial evidence “must rise above the stature of

guesswork, speculation or surmise.”     Rusk Farms, Inc. v. Ralston Purina Co.     , 689

S.W.2d 671, 680 (Mo. Ct. App. 1985). The plaintiff bears the burden of showing

that “the circumstances proved . . . point reasonably to the desired conclusion and

[that they] tend to exclude any other reasonable conclusion.”     Hale v. Advance

Abrasives Co. , 520 S.W.2d 656, 658 (Mo. Ct. App. 1975).

       The Missouri Court of Appeals faced a situation similar to the present

dispute in White v. Thomsen Concrete Pump Co.       , 747 S.W.2d 655 (Mo. Ct. App.

1988). In that case, plaintiffs brought a products liability claim against a

manufacturer after the electrocution of the decedent.     Id. at 658. Decedent

suffered his fatal injuries when the boom and concrete pump, attached to a cement


                                            -8-
truck, touched an energized power line.       Id. Plaintiffs in White relied on

circumstantial evidence to prove causation, arguing that, although no direct

evidence showed that an agent of the defendant-manufacturer had either removed

or failed to install the control box’s electrical insulation, a jury could infer such a

result from decedent’s electrocution.      Id. at 660-61. The Missouri Court of

Appeals held that plaintiffs failed to make a submissible case because “[t]he jury

was left to speculate, without support of facts, as to whether” defendant-

manufacturer failed to remove or install the insulation.      Id. at 661.

       Here, the Vanovers offer neither evidence that the lift’s boom touched an

energized line nor evidence that excess hydraulic fluid can compromise dielectric

properties. In fact, the Vanovers offer even less evidence from which to infer a

dielectric defect than that found insufficient in    White . Even assuming arguendo

that excess hydraulic fluid would cause a dielectric defect, the district court held

that the Vanovers fail to offer evidence that the boom touched an energized line.

The Vanovers, on appeal, fail to identify any evidence in the record to the

contrary. Although we are not obligated to comb through the record to locate

material not referenced by parties,     see Adler v. Wal-Mart Stores, Inc.   , 144 F.3d

664, 672 (10th Cir. 1998), we find the record devoid of any evidence that the

boom touched an energized line. Thus, even if the bucket’s insulation was

compromised, the Vanovers fail to offer evidence that the uninsulated bucket


                                              -9-
touched an energized wire.

       Given the lack of any evidence from which to infer a dielectric defect, we

hold that the district court did not err in granting summary judgment for Altec.

“[T]he mere fact of an accident, standing alone, does not generally make out a

case that a product [is] defective.”   Winters v. Sears, Roebuck & Co.   , 554 S.W.2d

565, 570 (Mo. Ct. App. 1977) (internal quotations omitted). While it is

conceivable that the lift’s boom touched an energized line and that the smudge of

hydraulic fluid compromised the bucket’s dielectric properties, this theory is not

submissible because it does not “rise above the stature of guesswork, speculation

or surmise.” Rusk Farms , 689 S.W.2d at 680. Under this sparse set of facts, it is

at least equally possible that the non-energized, but grounded, line being hauled

up by decedent came into contact with an energized line.     See Ward by Walker v.

McQueen , 670 S.W.2d 176, 177 (Mo. Ct. App. 1984) (“It is not enough, however,

that the evidence show equally possible yet inconsistent conclusions, as a verdict

for plaintiff based on one of them would necessarily be merely conjectural and

speculative.”) (citation omitted).

       The Vanovers argue that our conclusion “virtually eliminat[es] the use of

circumstantial evidence.” We disagree. Missouri law requires that, in a

circumstantial-evidence case, the facts forming the basis for the inference be of

“such certainty as to cause [the inference] to be the more probable of the


                                           -10-
conclusions to be drawn.”    Vaughan , 708 S.W.2d at 661. Because the Vanovers

fail to meet this standard, our decision merely applies well-settled Missouri law.

See White , 747 S.W.2d at 661.

       We also disagree with the Vanovers’ contention that our conclusion runs

contrary to Rauscher v. General Motors Corp.        , 905 S.W.2d 158 (Mo. Ct. App.

1995). In Rauscher , plaintiff presented testimony that he took his car to the shop

six times to correct an engine stalling problem and that the model of car he owned

had a history of stalling due to a defective emission control device.   Id. at 160-61.

The Missouri Court of Appeals held that this testimony constituted sufficient

circumstantial evidence of a defective emission control device to merit

submission to the jury.   Id.

       Here, the Vanovers offer no comparable evidence. For instance, the

Vanovers present no evidence that the boom touched an energized wire or that

excess hydraulic fluid compromises dielectric properties. Thus, the Vanovers’

citation to Rauscher is without merit.   5



C.     The Design-Defect Claim

       We also affirm the district court’s ruling finding the testimony of Dr.



       5
        While the Vanovers relied upon res ipsa loquitur below, they do not brief
the issue on appeal. Thus, we do not address it. See, e.g., State Farm Fire &
Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir. 1994) (holding that failure to
brief an issue on appeal constitutes waiver).

                                             -11-
Tessman inadmissible and that, absent his testimony, the Vanovers offer

insufficient evidence to support their design-defect claim, entitling Altec to

summary judgment. Dr. Tessman sought to testify that the absence of an

instrument to override the mandatory load-holding safety device constitutes a

design defect. The Vanovers do not argue in their brief that the district court

applied the wrong standard to Dr. Tessman’s testimony pursuant to Fed. R. Evid.

702 and Daubert, 509 U.S. 579 (1993), or that the district court abused its

discretion in its application of the Rule 702 and      Daubert standards. Thus, we

affirm for substantially the same reasons given by the district court.

        Daubert changed the law of evidence by establishing a “gatekeeper”

function for trial judges under Fed. R. Evid. 702. “Faced with a proffer of expert

scientific testimony, then, the trial judge must determine at the outset . . . whether

the expert is proposing to testify to (1) scientific knowledge that (2) will assist

the trier of fact to understand or determine a fact in issue.”   Daubert , 509 U.S. at

592.

       “The Supreme Court [in Daubert ] listed four nonexclusive factors
       that the trial court may consider in assessing reliability: (1) whether
       the opinion at issue is susceptible to testing and has been subjected to
       such testing; (2) whether the opinion has been subjected to peer
       review; (3) whether there is a known or potential rate of error
       associated with the methodology used and whether there are
       standards controlling the technique’s operation; and (4) whether the
       theory has been accepted in the scientific community.”      Hollander v.
       Sandoz Pharmaceuticals Corp ., 289 F.3d 1193, 1205 (10th Cir.
       2002).

                                             -12-
      Dr. Tessman’s testimony regarding the alternative design does not satisfy

this standard. Dr. Tessman is not a designer of boom trucks or aerial lifts; he has

no education or experience with such lifts; his proposed design is untested and

unpublished. We therefore agree with the district court that Dr. Tessman’s

testimony regarding the alternative design theory is inadmissible. For similar

reasons, we find Dr. Tessman’s testimony regarding the hydraulic fire

inadmissible. Absent this testimony, the Vanovers offer no evidence to support

their design-defect claim, thereby entitling Altec to summary judgment on this

claim. See Jenkins , 81 F.3d at 990 (the nonmovant cannot rest upon her

pleadings, but “must bring forward specific facts showing a genuine issue for trial

as to those dispositive matters for which [she] carries the burden of proof.”).

                                   III. Conclusion

      In sum, the Vanovers fail to present sufficient evidence upon which to base

a reasonable inference that dielectric failure caused decedent’s injuries.

Furthermore, Dr. Tessman’s testimony is inadmissible under     Daubert . Therefore,

we AFFIRM the district court’s order granting summary judgment.

                                       ENTERED FOR THE COURT,


                                       Deanell Reece Tacha
                                       Chief Circuit Judge




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