                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3232
                                   ___________

Jarrod Wagner,                      *
                                    *
            Appellant,              *
                                    *
      v.                            * Appeal from the United States
                                    * District Court for the
Hesston Corporation; AGCO           * District of Minnesota.
Corporation; AGCO Corporation of    *
Delaware,                           *
                                    *
            Appellees.              *
                               ___________

                             Submitted: March 13, 2006
                                Filed: June 8, 2006
                                 ___________

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Jarrod Wagner commenced this products-liability lawsuit against Hesston
Corporation, AGCO Corporation, and AGCO Corporation of Delaware (collectively,
"Defendants") after he was injured by a hay baler manufactured by Hesston. Wagner
asserted claims of strict liability and negligence, alleging design and manufacturing
defects in the baler. Wagner proffered two experts who intended to testify that the
baler was defective, but the District Court1 excluded the proposed testimony as
unreliable. Because Wagner could not prevail on any of his claims without expert
testimony, the District Court entered summary judgment for Defendants. We affirm.

       Wagner was injured by a Hesston 5600 Baler that was manufactured in 1974
and purchased by Wagner's father in 2000. While baling hay on July 10, 2001,
Wagner noticed that the baler had stopped accepting hay. With the power supply to
the baler still engaged, Wagner stepped off the tractor and approached the baler to
investigate. Wagner leaned over the baler frame and placed his left hand in hay that
was covering the baler's pick-up tines. The tines suddenly began to move, and
Wagner's hand was pulled into the baler's compression rollers. After the passage of
some time, Wagner elected to self-amputate his left hand.

        Wagner brought suit, asserting that the Hesston 5600 Baler was defectively
designed and manufactured. His four-count complaint alleged claims of strict
liability, negligence, and breach of express and implied warranties under Minnesota
law.2 Wagner designated John Sevart and Jonathan Chaplin as experts in the design
of agricultural products who would testify that the Hesston 5600 Baler was defective.
In their reports, both Sevart and Chaplin opined that the baler (1) should have had a
safety guard at the intake point, (2) should have had an emergency stop device, and
(3) should have featured an open throat3—as opposed to a compression
roller—design.4 Defendants moved to exclude the opinions of Sevart and Chaplin

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
      2
       Wagner does not appeal the dismissal of his warranty claims.
      3
      The term "open throat" refers to a baler that uses an open feed intake area
without compression rollers.
      4
       In addition, Chaplin asserted that the manufacturer failed to instruct operators
on the proper removal of blockage, that the baler's compression rollers defectively

                                         -2-
pursuant to Rule 702 of the Federal Rules of Evidence and the principles set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Arguing that
Wagner's claims could not be supported without expert testimony, Defendants further
moved for the entry of summary judgment. The District Court granted both motions,
and Wagner appeals.

       Under the framework developed in Daubert, trial courts must serve as
"gatekeepers to 'insure that proffered expert testimony is both relevant and reliable.'"
Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir. 2003) (quoting Dancy v.
Hyster Co., 127 F.3d 649, 652 (8th Cir. 1997), cert. denied, 523 U.S. 1004 (1998)).
Trial courts are given broad discretion in fulfilling this gatekeeping role, and on
appeal we will not disturb a decision concerning the exclusion of expert testimony
absent an abuse of that discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152–53 (1999).

       The District Court excluded the testimony of Sevart and Chaplin on the ground
that their opinions were not reliable. Rule 702 permits expert testimony only if it is
"the product of reliable principles and methods."5 In Daubert, the Supreme Court set


operated at different speeds, and that the warning decals on the baler were inadequate.
Wagner does not appeal the District Court's decision excluding Chaplin's testimony
regarding the failure to instruct and compression roller speed. It is not clear whether
Wagner appeals the District Court's decision excluding Chaplin's testimony regarding
the warning decals; to the extent that Wagner does appeal this decision, we affirm the
District Court.
      5
       In full, Rule 702 states:

      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,
      if (1) the testimony is based upon sufficient facts or data, (2) the

                                           -3-
forth a number of factors that district courts may consider in assessing reliability: (1)
whether the theory "can be (and has been) tested," (2) whether the theory "has been
subject to peer review and publication," (3) "the known or potential rate of error," and
(4) whether the theory enjoys general acceptance in the relevant scientific community.
509 U.S. at 593–94; see also Kumho Tire, 526 U.S. at 149–50 (ruling that the Daubert
factors may be applied to determine the admissibility of an engineering expert's
testimony). Cases decided after Daubert provide additional factors, including
"whether the expertise was developed for litigation or naturally flowed from the
expert's research." Lauzon v. Senco Prods., Inc., 270 F.3d 681, 687 (8th Cir. 2001).
The burden is on the party offering the expert testimony to prove that it is reliable.
United States v. Kehoe, 310 F.3d 579, 593 (8th Cir. 2002), cert. denied, 538 U.S. 1048
(2003).

       The District Court applied these factors to the experts' three design-defect
theories.6 The District Court began by addressing each expert's proffered opinion that
the absence of a guard at the feed intake point of the Hesston 5600 Baler violated
basic precepts of design and rendered the baler defective. The court found that
Sevart's minimal testing of this theory (via limited and largely undocumented tests
performed more than twenty years ago in connection with other litigation), the slim
evidence of peer review,7 the lack of evidence showing general acceptance in the


      testimony is the product of reliable principles and methods, and (3) the
      witness has applied the principles and methods reliably to the facts of the
      case.
      6
       The District Court did not consider the third Daubert factor regarding the
potential rate of error because it is not applicable to the facts of this case.
      7
        We reject Wagner's argument, raised for the first time in his reply brief, that
peer review does not apply to non-medical devices. Appellant's Reply Br. at 4. See
Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 297 (8th Cir. 1996) (applying
Daubert's peer-review factor to an expert's theory regarding a tire-changing machine),
cert. denied, 520 U.S. 1196 (1997).

                                          -4-
industry of safety guards for large round balers similar to the Hesston 5600, and
Sevart's admission that all but one of his alternative guard designs were built in
connection with litigation, all weighed against the admissibility of Sevart's testimony.
Similarly, the District Court concluded that Chaplin's opinion was speculative and
inadmissible because he tested his safety-guard theory by baling a single bale of hay,
the test was performed on Wagner's baler for the sole purpose of this litigation, and
there was no evidence of peer review or general acceptance of the theory. The District
Court further noted Chaplin's concession during his deposition that his proposed
alternative design was subject to clogging and maintenance problems. Next, the
District Court analyzed the proposed experts' theory that the Hesston 5600 Baler was
defective because it used compression rollers at the intake point rather than an open
throat design that was commercially available when the Hesston 5600 Baler was
manufactured in 1974. The court concluded that this theory of a reasonable
alternative design was not reliable because Wagner submitted no evidence that the
open throat balers on the market in 1974 produced hay bales of the quality produced
by the Hesston 5600 Baler. Finally, the District Court addressed the proffered experts'
theory that the Hesston 5600 Baler was defective because it lacked an emergency stop
cable that could have allowed Wagner to disengage the power to the baler thereby
preventing the compression rollers from grinding his hand and arm. The court first
questioned whether Sevart, a mechanical engineer, was qualified to render an opinion
that an operator caught in the baler would have less severe medical injuries if the
compression rollers stopped rotating. Even assuming Sevart was qualified to render
the opinion, the court rejected Sevart's theory as unreliable on the grounds that it had
not been sufficiently tested, that evidence of peer review was minimal, that Wagner
presented no evidence that emergency stop devices had been generally incorporated
into compression roller hay balers, and that the theory was formulated in connection
with this litigation. Because Chaplin simply adopted Sevart's theory without
designing, installing, or testing an emergency stop device himself, the court also
excluded Chaplin's testimony as unreliable.



                                          -5-
       Wagner argues that the District Court erred in excluding the testimony of Sevart
and Chaplin because Minnesota substantive law does not require proof of an
alternative feasible design in products-liability cases. In making this argument,
Wagner appears to be contending that the District Court (erroneously) deemed the
existence of a safer alternative feasible design an essential element in Wagner's case.
We note two substantial flaws in Wagner's argument.

       First, Wagner's argument is based on a faulty premise. The District Court did
not require Wagner (via his experts) to present proof of an alternative feasible design
as an element of his prima facie case under Minnesota law. Rather, the District Court
applied Daubert's first factor—whether the scientific theory presented has been
tested—in evaluating the reliability of Sevart's and Chaplin's proffered testimony. It
was Sevart and Chaplin, not the District Court, who put evidence of an alternative
design at issue by theorizing that the Hesston 5600 Baler was defective because it did
not include a safety guard, an open throat design, and an emergency stop device
(alternative designs). Had Wagner chosen to present different evidence showing that
the baler was defective, evidence of an alternative feasible design need not have been
discussed. Under the design-defect theory that Wagner presented, however, the
District Court properly exercised its gatekeeping role when it applied federal law in
analyzing whether testing of the proffered experts' theories indicated that the experts'
testimony was reliable. See Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir.
2005) (ruling that federal law, not Minnesota substantive law, governs whether
proposed expert testimony is admissible); Peitzmeier v. Hennessy Indus., Inc., 97 F.3d
293, 297 (8th Cir. 1996) (applying Daubert's testing factor in evaluating expert's
theory that machine was defective because it lacked an alternate safety design), cert.
denied, 520 U.S. 1196 (1997).8

      8
      Wagner correctly notes that "[o]ur cases do not require that experts
manufacture a new device or prototype in order for their opinion to be admitted."
Unrein, 394 F.3d at 1012. We conclude, however, that the District Court did not
exclude the proffered expert opinions on the sole ground that Sevart and Chaplin did

                                          -6-
        Second, Wagner's assertion that Minnesota substantive law does not require
proof of an alternative feasible design in a products-liability case is a bit misleading.
Minnesota requires a plaintiff in a products-liability case to prove that the product was
defective and was unreasonably dangerous. Kallio v. Ford Motor Co., 407 N.W.2d
92, 96 (Minn. 1987). To satisfy the second requirement, "the plaintiff ordinarily has
the burden of showing the existence of an alternative design that was safer." Id.
Indeed, the Minnesota Supreme Court has ruled that "[t]o establish a prima facie case
that [a product] was unreasonably dangerous normally requires production of evidence
of the existence of a feasible, alternative safer design." Id. While the Minnesota
Supreme Court did not go so far as to require proof of an alternative feasible design
in all defective-products cases, the Court noted that it could only conceive of "rare
cases" in which "the product may be judged unreasonably dangerous because it should
be removed from the market rather than be redesigned." Id. at 97 & n.8. As discussed
above, Wagner's theory is that the Hesston 5600 Baler was defective and unreasonably
dangerous because it could have been alternatively designed with a safety guard at the
intake point, an open throat, and an emergency stop cord. Wagner did not assert that
his was the "rare case[]" involving a product so dangerous that it should be removed
from the market entirely. Given Wagner's own litigation theory, the District Court
would have acted properly even if it had required the proffered experts to establish the
existence of a feasible alternative to the Hesston 5600 Baler. See Young v. Pollock
Eng'g Group, Inc., 428 F.3d 786, 788–790 (8th Cir. 2005) (discussing Minnesota's law


not manufacture a feasible alternative baler. Rather, the District Court correctly
evaluated the testing of the experts' theories of alternative design as a non-dispositive
factor to be considered in evaluating the reliability of their testimony. The District
Court considered the lack of testing in conjunction with the lack of peer review, lack
of general acceptance, and evidence that the theories were developed in the context
of litigation. The District Court did not abuse its discretion in finding the theories
unreliable. See Kumho Tire, 526 U.S. at 151–52 ("[Daubert] made clear that its list
of factors was meant to be helpful, not definitive. . . . [T]he trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.").

                                          -7-
on design defects and noting that "[t]estimony may be excluded if an expert fails to
explain how a proposed safety modification would protect the machine's operators
without compromising the machine's utility").

       To the extent that Wagner attacks the District Court's ruling on other additional
grounds, we will not recapitulate the District Court's impressively thorough analysis
supporting its conclusions that the proposed testimony of Sevart and Chaplin was
unreliable. Suffice it to say that we have studied the record, read the briefs, and heard
argument and do not discern any error in the District Court's decision. "The analysis
conducted by the District Court is precisely the type of analysis the decision in
Daubert would appear to contemplate. Because [Wagner's] proffered expert testimony
did not satisfy the criteria set out in Daubert, the District Court's preclusion of that
testimony was not a clear abuse of discretion." Gier v. Educ. Serv. Unit No. 16, 66
F.3d 940, 944 (8th Cir. 1995).

       Wagner concedes that "[w]ithout the testimony of Sevart and Chaplin, there are
no genuine factual disputes and Wagner cannot prevail."9 Appellant's Br. at 43. It
follows that summary judgment was appropriate. See Trost v. Trek Bicycle Corp.,
162 F.3d 1004, 1009 (8th Cir. 1998) (holding that where the only evidence plaintiff
offered of product's defective condition under Minnesota law was expert testimony
that the district court excluded, summary judgment was appropriate).



      9
        In his reply brief, Wagner argues for the first time that he was not required to
present any evidence, "expert or otherwise," on an alternative design, thus making the
District Court's entry of summary judgment erroneous. Appellant's Reply Br. at 2.
We note that this issue was not raised below and we will not consider it on appeal.
See Wilson v. City of Des Moines, 442 F.3d 637, 642 (8th Cir. 2006); Roberts v.
Apfel, 222 F.3d 466, 470 (8th Cir. 2000). In any event, we note that Wagner was
required by Minnesota law to present proof of a design defect. Kallio, 407 N.W. 2d
at 96. The proof of defect that he chose to present was the expert testimony of Sevart
and Chaplin that the baler would have been more safe with an alternative design.

                                          -8-
The judgment of the District Court is affirmed.
               ______________________________




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