                     United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT
                               _____________

                                No. 97-1240
                               _____________

Kris P. Anderson; Omaha Cold          *
Storage Terminals, Inc.,              *
                                      *
           Plaintiffs - Appellants,    *
                                    * Appeal from the United States
      v.                            * District Court for the District
                                    * of Nebraska.
Nissan Motor Co., Ltd.,             *
                                    *
           Defendant - Appellee.    *
                              _____________

                            Submitted: October 21, 1997
                                Filed:   March 18, 1998
                              _____________

Before McMILLIAN, FLOYD R. GIBSON, and LAY, Circuit Judges.
                              _____________

FLOYD R. GIBSON, Circuit Judge.

      Appellant Kris P. Anderson filed this products liability action on
December 30, 1992, in the District Court for Douglas County Nebraska. His
employer, Omaha Cold Storage Terminals, Inc. ("Omaha Cold Storage") was
joined as a party-plaintiff for workers' compensations subrogation
purposes. See Neb. Rev. Stat. § 48-118 (1993). Anderson suffered injuries
during employment while operating a forklift manufactured by Nissan Motor
Co., Ltd. ("Nissan"). Anderson claimed Nissan was liable for his injuries
based on negligence and strict liability.      Nissan removed the case to
federal court based on diversity jurisdiction.       Anderson raised four
theories of negligence. The
district court granted Nissan's motion to dismiss Anderson's claims of a
post-sale duty to retrofit the forklift with operator restraints and a
post-sale duty to warn of the dangers associated with the failure to use
an operator restraint system. Anderson proceeded to trial with his two
other negligence claims -- duty to warn and duty to equip the forklift with
an operator restraint at the time of manufacture and sale of the forklift
-- as well as his claim of strict liability. The jury returned a verdict
in favor of Nissan. On appeal, Anderson argues that the district court
erred in dismissing his claims of post-sale duty to warn and duty to
retrofit. He also asserts that the district court made several evidentiary
errors.   Because we conclude that the district court1 did not commit
reversible error, we affirm.

I.   BACKGROUND

      In 1982, Nissan manufactured the F02 forklift. Omaha Cold Storage
purchased an F02 forklift from Ron's Forklift in August of 1983.        On
October 11, 1990, Anderson operated the forklift while working at Omaha
Cold Storage. As he made a right hand turn, the forklift began to tip
over.   Anderson unsuccessfully attempted to scramble from beneath the
falling forklift. Unfortunately, he was not able to escape harm's way and
was crushed by the forklift's overhead guard structure. Anderson sustained
serious injuries as a result of the accident.

      Because forklifts are commonly used in warehouse environments, where
falling objects are often a threat to those on the ground floor, forklifts
are often equipped with overhead guard structures to protect forklift
operators from being hit by falling objects. In 1982 and 1983, however,
forklifts were not commonly fitted with operator restraint systems to
prevent operators from falling out of forklifts during tip overs. The lack
of a restraint system increased the likelihood that an operator could be
crushed by the




     1
        The HONORABLE THOMAS M. SHANAHAN, United States District Judge
for the District of Nebraska.

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overhead guard structure in the event of a tip over. However, when Nissan
manufactured the forklift in 1982 and Ron's Forklift sold it to Omaha Cold
Storage in August of 1983, the predominant theory in the forklift industry
was that the inclusion of operator restraints may have increased the
likelihood of injury because of the "head-slap" effect. The theory was
that, because of a forklift's narrow construction, when it tipped over, the
force of the fall would quickly slam the operator toward the ground.
Because the operator would be restrained at the waist, the operator's head
would slam toward the ground, and without a simultaneous release of the
operator's body, the head would slap the ground, causing potentially life-
threatening injuries.

      Anderson sued Nissan claiming negligence and strict liability. The
jury returned a verdict in favor of Nissan.     Anderson appeals, and we
affirm.

II.   DISCUSSION

      Anderson's first argument on appeal is that the district court erred
when it granted Nissan's motion to dismiss his claims of post-sale duty to
warn and duty to retrofit. We review de novo a district court's grant of
a motion to dismiss for failure to state a claim. See Springdale Educ.
Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998).        A
district court should not dismiss a claim pursuant to Fed. R. Civ. P.
12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim that would demonstrate an entitlement to
relief. See id. We also review the district court's interpretation of
Nebraska law de novo. See Salve Regina College v. Russell, 499 U.S. 225,
231 (1991); First Commercial Trust Co., N.A. v. Colt's Mfg. Co., Inc., 77
F.3d 1081, 1083 (8th Cir. 1996). "In determining the law of the State of
Nebraska, we are bound by the decisions of the Nebraska Supreme Court."
Farr v. Farm Bureau Ins. Co. of Nebraska, 61 F.3d 677, 679 (8th Cir. 1995).
If the Nebraska Supreme Court has not addressed the issue before us, we
must determine what the court would probably hold were it to decide the
issue. See id. "In making this




                                   -3-
determination, we may consider relevant state precedent, analogous
decisions, considered dicta, scholarly works and any other reliable data."
Id.

      The Nebraska Supreme Court has not specifically addressed the issue
of whether it would recognize either a post-sale duty to warn or a duty to
retrofit. The district court determined that, when called upon to decide
the issue, the Nebraska Supreme Court would not be likely to recognize
either cause of action. After a de novo review, we agree with the district
court's determination that Nebraska would not impose either a post-sale
duty to warn or a duty to retrofit; therefore, we affirm the district
court's dismissal of these claims pursuant to Rule 12(b)(6).

      While the Nebraska Supreme Court has not ruled directly on either of
these issues, general Nebraska products liability law leads us to conclude
that the court would not impose either of the post-sale duties on product
manufacturers.2 The primary case which influences this conclusion is Rahmig
v. Mosley Mach. Co., 412 N.W.2d 56 (Neb. 1987).

      One of the primary issues decided by the Rahmig court was whether a
products liability plaintiff must "prove feasibility or a practicable
alternative but safer product in a negligent design case." Id. at 82. The
court overruled a prior Nebraska Supreme Court case which held that a
products liability plaintiff was required to prove the feasibility of an
alternative safer design. See Nerud v. Haybuster Mfg., Inc., 340 N.W.2d
369, 374-75 (Neb. 1983). The Rahmig court reasoned that requiring such
proof would contradict Neb. Evid. R. 407, which generally prohibits
evidence of remedial measures taken subsequent to the event or accident at
issue in the case. See Rahmig, 412 N.W.2d at 82. The court stated that
"[r]equiring a plaintiff to prove




      2
       This case presents only the issue of a manufacturer's post-sale duties. This
decision should not be interpreted to address the post-sale duties of any other
potentially liable parties in the chain of distribution.

                                        -4-
feasibility or a practicable alternative but safer product in a negligent
design case unnecessarily invites perilous and unfairly prejudicial
evidence of postaccident matters excludable under Neb. Evid. R. 407." Id.
The court also stated, though admittedly in dicta, that "[i]n a products
liability action, the plaintiff has the burden to prove that the alleged
defect existed when the product left the manufacturer."         Id. at 69
(emphasis added).

      The Nebraska Supreme Court's statements in Rahmig lead us to conclude
that Nebraska favors limiting the state's products liability law to actions
or omissions which occur at the time of manufacture or sale. Based on this
conclusion, we hold that the district court correctly dismissed Anderson's
claims for post-sale duty to warn and duty to retrofit pursuant to Rule
12(b)(6).

      Anderson also challenges two of the district court's evidentiary
rulings. "The admissibility of evidence is an issue that is committed to
the sound discretion of the trial court, and we will not disturb a district
court's evidentiary ruling absent a clear and prejudicial abuse of that
discretion." Anheuser-Busch, Inc. v. John Labatt Ltd., 89 F.3d 1339, 1345
(8th Cir. 1996) (quotation and citation omitted), cert. denied, 117 S. Ct.
944 (1997).

      Anderson's first evidentiary challenge is that the district court
abused its discretion in refusing to allow him to introduce post-sale
evidence of the feasibility of alternative forklift designs. He claims
that the feasibility of safer designs was placed in issue by Nissan and he
therefore should have been able to introduce such evidence. The district
court determined that post-sale evidence was not relevant because the post-
sale causes of action had been eliminated from the case. In addition, the
court determined that the prejudicial effect of the evidence and its
tendency to confuse the jury required its exclusion. We hold that the
district court did not abuse its discretion in making this ruling. First
of all, Nissan did not question the feasibility of the alternative design
-- it merely questioned the safety of including operator restraints




                                   -5-
based on studies of the head-slap theory. In fact, Anderson's attorney
specifically asked one of Nissan's experts whether it was feasible to
include operator restraints on forklifts in 1982.       Nissan's expert
responded: "Without any other concern, just screwing a seat belt on in
1982 could have been done." Trial Tr. at 717. Therefore, it would seem
that the defense did not contest feasibility, but, in fact, conceded it.
We conclude that the district court did not abuse its discretion in
excluding the post-sale evidence.

      Anderson also challenges the district court's decision to limit his
cross examination of one of Nissan's experts.       The expert testified
regarding another forklift manufacturer's seat design which came onto the
market within months after the sale of the Nissan forklift to Omaha Cold
Storage.   Anderson's attorney asked whether "with just a little bit of
retrofitting the [other manufacturer's] seat would work for [Nissan]?"
Trial Tr. at 736 (emphasis added). The district court stated that, based
on its prior decision to dismiss Anderson's duty to retrofit claim, the
question was inappropriate. We cannot conclude that the district court
abused its discretion in making this ruling.

III. CONCLUSION

      Based on the reasons set forth in this opinion, we affirm the district
court's judgment.


     A true copy.

           Attest:

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




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