                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 07-2621
                               ________________

                                       *
Timothy C. Owen; Gloria J. Owen,       *
                                       *
            Appellants,                *      Appeal from the United States
                                       *      District Court for the
      v.                               *      Western District of Missouri.
                                       *
General Motors Corporation,            *           [PUBLISHED]
                                       *
            Appellee.                  *
                                       *

                               ________________

                              Submitted: March 14, 2008
                                  Filed: July 17, 2008
                               ________________

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.

      Timothy and Gloria Owen brought this putative class action suit against
General Motors Corporation (GM) after their windshield wipers failed, asserting
claims of breach of warranty, breach of contract, unjust enrichment, fraudulent
concealment, and violation of the Missouri Merchandising Practices Act (MMPA),
Mo. Rev. Stat. § 407.025 (2000). See 28 U.S.C. § 1332(d)(2) (prescribing the
elements of class action jurisdiction); see also Fed. R. Civ. P. 23. The district court1
granted in part GM's motions to dismiss on statute of limitations grounds and for
failure to state a claim, and the district court granted summary judgment to GM on the
remaining claim due to the Owens' failure to establish causation under the MMPA.
The Owens appeal, and we affirm.

                                          I.

       The Owens purchased a 1999 Chevrolet Tahoe on May 8, 1998, and
approximately 6½ years later on October 9, 2004, the windshield wipers on the
Owens' Tahoe failed while Mr. Owens was driving through a construction zone in
heavy rain, impairing his visibility. The complete vehicle had been covered by an
express warranty extending 3 years or 36,000 miles. The Owens paid a GM dealer
$91.87 to replace the wipers. The dealer kept their old wiper control module, and GM
did not reimburse this out-of-warranty cost. The dealer informed the Owens that the
wiper control module had been subject to two prior recalls due to wiper failures but
that the recalls applied only to earlier model vehicles, not to the Owens' 1999 Tahoe.

       The complaint alleges that at the time of sale to the Owens, GM knew that in
earlier models, the same or similar windshield wiper motor assembly was prone to fail
after the warranty had expired. The complaint also alleges that GM did not disclose
these failures, or this alleged defect, to the Owens when they purchased their 1999
Tahoe. The first recall in 1998, was issued in response to increasing customer
complaints of wiper failures and a resulting investigation by the National Highway
Traffic Safety Administration's Office of Defects Investigation (NHTSA). GM
recalled the wiper control module on certain 1994 through 1996 model trucks and
sport utility vehicles (SUVs), including certain Tahoes, because specific engine/model


      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

                                          -2-
combinations were prone to wiper motor failure. Specifically, the location of the
wiper motor on the recalled vehicles subjected the motor to high temperatures within
the engine compartment, which caused the single-sided solder joints near the wiring
harness connector to crack. GM reported to the NHTSA that the increase in wiper
motor failures on recalled models began occurring after August 1994, when GM had
implemented a change in its wiper control module supplier and had made changes in
the control module design specifications and the manufacturing process. GM was
aware of the problem by June 1997. The 1998 recall included over 1.5 million
vehicles.

       GM issued a second recall of 1.7 million vehicles in April 2003, in response to
continued complaints and an expanded investigation by the NHTSA, again citing
potential windshield wiper failure "due to cracked solder joints on the controller
circuit board." (Appellants' App. at 300-02.)2 This expanded recall included 1994 to
1996 model Tahoes. By 2002, GM warranty claims related to wipers on the entire
recalled group of vehicles had totaled 225,000, and there were at least 11 reported
auto accidents related to windshield wiper problems by December 1999. Although
GM initially asserted that the alleged defect was not related to safety due to the low
incidents of accidents or injuries, it later admitted that safety consequences can ensue
from the failure of a windshield wiper system. The NHTSA's report indicated that
"[t]he likelihood of failure increases with the level of heat to which the windshield
wiper motor assembly is exposed," which, in turn, is related to its position within the
engine compartment. (Id. at 304.) GM reported that it had made several
modifications to the wiper module in 1998, and the NHTSA report stated that after the
changes, "the incidence of the problem of failing windshield wipers was reduced."
(Id. at 286.) GM did not recall 5.8 million vehicles that have the same or similar
windshield wiper control module as the vehicles that were included in the recalls.

      2
       In reviewing a motion to dismiss, we may consider documents attached to the
complaint. Great Plains Trust Co. v. Union Pac. R.R., 492 F.3d 986, 990 (8th Cir.
2007).

                                          -3-
       Also in 2003, GM implemented a Special Policy Adjustment Program ("Special
Policy") to cover other 1994 to 1997 vehicles investigated by NHTSA . The Special
Policy offered owners of those models a limited-term extended warranty and
reimbursement to those who had paid to replace their windshield wiper motors. The
Special Policy did not cover any vehicle with a model year after 1997 and neither did
the earlier recalls.

       The Owens filed this putative class action suit on April 3, 2006, on behalf of
themselves and all other United States citizens or residents, excluding commercial
entities, who owned or leased a 1998 or 1999 GM vehicle with the same allegedly
defective wiper module and who were not compensated for repairs made to correct it.
The original complaint alleged six counts: Count I (unjust enrichment), Count II
(injunctive relief), Count III (breach of implied warranty), Count IV (breach of
express warranty), Count V (violation of the MMPA, Mo. Rev. Stat. § 407.025), and
Count VI (breach of implied warranty under the Magnuson-Moss Warranty Act
(MMWA), 15 U.S.C. §§ 2301-2312 (2000)).

       GM moved to dismiss the complaint, partly relying on the statute of limitations.
While the motion to dismiss was pending, the Owens requested permission to file a
first amended complaint adding approximately 40 new paragraphs of factual
assertions and two new counts–Count VII (breach of contract based on the Special
Policy) and Count VIII (fraudulent concealment). The Owens represented to the court
that because the proposed amendment would not materially alter the original counts,
the amended complaint would not require rebriefing of the issues related to the
pending motion to dismiss. The district court then granted the Owens leave to file the
First Amended Class Action Complaint and granted in part GM's first motion to
dismiss, concluding that the breach of warranty claims were barred by the statute of




                                         -4-
limitations.3 The Owens thereafter filed a second motion for leave to amend the
complaint, which the district court denied, and GM filed a second motion to dismiss,
which the district court granted, dismissing the newly added counts of breach of
contract and fraudulent concealment for failure to state a claim.4

      GM then filed a motion for summary judgment on the only remaining
claim–that GM violated the MMPA (Count V) by failing to disclose or remedy an
alleged defect in the wiper system. The summary judgment record, viewed in the light
most favorable to the Owens, includes the report of GM's internal investigatory team,
headed by Dr. Michael Pecht, and Dr. Pecht's statement as the Owens' designated
expert. GM commissioned its team in March 1998 in an attempt to determine the
source of the wiper problems.

       Among the malfunctioning wipers that had been replaced while under warranty,
the team identified 15 categories of possible reasons for the wiper failure, including
solder joint failures, design changes, and manufacturing variables. In wiper modules
made after 1994, some circuit boards had come into contact with the aluminum casting
of their housing and there was a wide variation in the quality of solder joints among
the units that failed. The team determined that single-sided solder joints produced in
Juarez, Mexico, were particularly prone to fatigue cracking but no defect at all was
identified in 23% of the circuit boards returned due to reported failures. The team
recommended replacing the single-sided windshield wiper circuit board with a double-
sided circuit board that would be less prone to solder joint failure. GM continued
manufacturing and installing the single-sided windshield wiper circuit boards until the
double-sided units could be produced. GM also continued installing the single-sided


      3
       The district court also dismissed Count II (seeking injunctive relief), but that
dismissal is not challenged on appeal.
      4
      The district court also dismissed Count I (claiming unjust enrichment), which
the Owens do not challenge on appeal.

                                         -5-
units in new vehicles until it exhausted its supply. GM did not recall 1998 or 1999
vehicles with the same single-sided circuit board, concluding that any malfunction
was not likely to occur within the warranty period.

      The Owens designated Dr. Pecht as their expert, and his report states the
opinion that "the single sided / CEM circuit card assembly, common to the vehicles
being manufactured by GM prior to the implementation of the double sided [circuit
assembly] . . . was not robust enough and not appropriate for a vehicle which must
survive more than a 3 year, 36,000 mile[] warranty period." (Appellants' Add. at 53.)
Because the failure results from solder fatigue, Dr. Pecht recommended that GM
replace the single-sided assembly with a stronger double-sided circuit assembly. He
concluded, "otherwise, there is an increasing likelihood that it will fail outside the
warranty period." (Id.) They presented no evidence diagnosing the reason that their
wiper motor failed.

      The district court granted summary judgment to GM on the MMPA claim,
concluding that there was no evidence indicating that the Owens' loss resulted from
a defect that GM failed to inform them of. The district court also denied as moot the
Owens' pending motion for class certification. The Owens appeal.

                                        II.
                               A. Motions to Dismiss

      "This court reviews de novo the grant of a motion to dismiss, taking all facts
alleged in the complaint as true." Students for Sensible Drug Policy Found. v.
Spellings, 523 F.3d 896, 899 (8th Cir. 2008) (internal marks omitted). Additionally,
"we may consider documents attached to the complaint and matters of public and
administrative record referenced in the complaint." Great Plains Trust Co. , 492 F.3d
at 990.



                                         -6-
      The Owens argue that the district court erred in dismissing their breach of
warranty claims on statute of limitations grounds. Missouri's Uniform Commercial
Code (the Missouri UCC) prescribes a four-year statute of limitations applicable to
breach of warranty claims on the sale of goods, which begins to run when tender of
delivery is made, unless the goods are sold with a warranty for future performance.
See Mo. Rev. Stat. § 400.2-725(1), (2) (2000); Wienberg v. Independence Lincoln-
Mercury, Inc., 948 S.W.2d 685, 689 (Mo. Ct. App. 1997). If goods are sold with a
warranty for future performance, "the cause accrues on and the statute of limitations
runs from the date on which the defect was or should have been discovered."
Wienberg, 948 S.W.2d at 689 (citing Mo. Rev. Stat. § 400.2-725(2)).

       The Owens assert that they purchased their vehicle in May 1998 with a
warranty for future performance and that therefore the statute of limitations on their
breach of warranty claims did not begin to run until the date they discovered the
defect–that is, when their wipers failed in October 2004–and that they timely filed suit
within three years of this discovery. We respectfully disagree. Although the Owens
did not discover the alleged defect until October 2004, the three-year express warranty
for future performance lasted only through May 2001. The life of an express warranty
cannot be extended beyond its terms by the discovery exception of the statute of
limitations. The cause of action for breach of an express warranty begins to accrue
upon discovery only if the defect is, or should have been, discovered within the
warranty period; at the latest, the cause of action begins to accrue on the date when the
express warranty expires. See 1 The Law of Prod. Warranties § 11:4, WL
PRODWARR § 11:4 (noting that when a period of time is stated in the warranty, "the
four-year clock begins to tick when the breach is discovered or should have been
discovered, or when the explicit time period expires, whichever occurs first"); see also
Ouellette Mach. Sys., Inc. v. Clinton Lindberg Cadillac, Co., 60 S.W.3d 618, 622
(Mo. Ct. App. 2001) (concluding "that for any defect discovered in the four-year
warranty period, the car buyer has four years to bring a cause of action under the
statute of limitations contained in Section 400.2-725"). Because the alleged defect

                                          -7-
was not discovered within the life of the three-year express warranty, the statute of
limitations for the breach of warranty claims cannot run from the date the Owens
discovered the defect. The district court correctly concluded that the warranty claims
here were barred by the four-year limitations period. The three-year express warranty
expired in May 2001, the four-year limitations period expired in May 2005, and the
Owens did not file suit until April 2006.

       To the extent the Owens assert that GM's Special Policy provision amounted
to a separate warranty for future performance extending to defects discovered beyond
the three-year express warranty, we find this argument to be without merit. Missouri
courts have held that "[t]o constitute a warranty for future performance, the terms of
the warranty must unambiguously indicate that the manufacturer is warranting the
future performance of the goods for a specified period of time." Wienberg, 948
S.W.2d at 689. The Special Policy provision is nothing more than notice that GM
might at some unspecified time voluntarily offer to pay for repairs that are no longer
covered by the three-year express warranty; it is not a separate warranty for future
performance.

     Alternatively, the Owens assert that the limitations period should be tolled by
GM's fraudulent concealment of the nature of the alleged defect.5 "To constitute


      5
        In Missouri, it is well-settled that statutes of limitations are favored and can be
avoided only by strictly complying with specific legislative exceptions, which courts
cannot extend. See Neal v. Laclede Gas Co., 517 S.W.2d 716, 719 (Mo. Ct. App.
1974). The general chapter on statutes of limitations sets forth a specific legislative
exception that permits tolling for a breach of contract claim where a defendant's
improper act conceals the cause of action. See Mo. Rev. Stat. § 516.280 (2000);
Greeson v. Ace Pipe Cleaning, Inc., 830 S.W.2d 444, 447 (Mo. Ct. App. 1992); see
also Kauchick v. Williams, 435 S.W.2d 342, 345 (Mo. 1968) (en banc) (noting that
this provision is "usually associated with fraudulent concealment"). This general
tolling provision ordinarily would not extend to a special statute of limitations, such
as applies here through the Missouri UCC. See Mo. Rev. Stat. § 516.300; see also

                                           -8-
concealment of a cause of action within the general rule tolling the statute of
limitations on that ground the concealment must be fraudulent or intentional and,
. . . there must be something of an affirmative nature designed to prevent, and which
does prevent, discovery of the cause of action." Hasenyager v. Bd. of Police Com'rs
of Kansas City, 606 S.W.2d 468, 471 (Mo. Ct. App. 1980) (internal marks omitted).
To avoid the running of the statute of limitations, the fraudulent concealment "must
be something more than mere silence on defendant's part . . .; usually the employment
of some means or device to prevent discovery should be shown." Gilliam v. Gohn,
303 S.W.2d 101, 107 (Mo. 1957). Silence becomes misrepresentation only when
there is a duty to speak, such as "when one of the parties has superior knowledge or
information not within the fair and reasonable reach of the other party." Bohac v.
Walsh, 223 S.W.3d 858, 864 (Mo. Ct. App. 2007).

       The pleadings assert that GM's silence constituted concealment because GM
had "superior knowledge" of the allegedly dangerous and defective nature of the wiper
module by 1997 but concealed this from the Owens so that they did not discover their
cause of action until their wipers failed in October 2004, over three years after the
expiration of the warranty. The only specific "superior knowledge" alleged was that
the single-sided solder joints of the wiper control module were used on multiple
platforms in 1993 through 1998 model vehicles and that the module could suffer
random solder joint failures after 12 months due to fatigue. This does not demonstrate
superior knowledge of a defect in the Owens' 1999 Tahoe wiper module that should


Braun v. Petty, 129 S.W.3d 449, 452 n.3 (Mo. Ct. App. 2004) (stating Missouri courts
have "uniformly held that where a statute of limitations is a special one, not included
in the general chapter of limitations, the running thereof cannot be tolled because of
fraud, concealment, or any other reason not provided in the statute itself") (internal
marks omitted). However, the legislature explicitly stated in the Missouri UCC that
the special four-year limitation applicable to breach of warranty claims "does not alter
the law on tolling of the statute of limitations," Mo. Rev. Stat. § 400.2-725(4). Thus,
the plain language of the statute preserves the possibility of equitable tolling on
account of fraudulent concealment as set forth in the general limitations chapter.

                                          -9-
have been disclosed. Additionally, the pleadings indicate that the Owens' wipers
worked without incident for 6½ years and 98,000 miles, the prior recalls were public
in nature, and GM cooperated with the NHTSA's investigation, which did not
encompass the 1999 Tahoe. GM had implemented several design and manufacturing
process changes by 1998 that reduced the rate of failures such that the NHTSA did not
require further recalls. GM's knowledge of prior solder joint failure due to fatigue and
its failure to notify the Owens that the wiper control module could fail due to fatigue
after the expiration of the three-year warranty are not so remarkable as to amount to
fraudulent concealment of the Owens' breach of warranty claim that would justify
equitable tolling of the statute of limitations.

        For the same reason, the district court properly dismissed the substantive count
of fraudulent concealment. A party must plead the circumstances of each element of
fraud with particularity. Bohac, 223 S.W.3d at 863. As already noted, the failure to
disclose information in the face of an obligation to do so or superior knowledge can
serve as a substitute for the false representation element required to plead fraud. See
id. at 864; Brown v. Mickelson, 220 S.W.3d 442, 451-52 (Mo. Ct. App. 2007). The
crux of a fraudulent concealment claim is showing that the defendant "affirmatively
intend[ed] to conceal from plaintiff the fact that the plaintiff ha[d] a claim against the
defendant." Roth v. Equitable Life Assur. Sur. of U.S., 210 S.W.3d 253, 259 (Mo. Ct.
App. 2006) (internal marks omitted). We have already concluded that the knowledge
allegedly concealed (that the wiper motor could fail due to fatigue after the warranty
expired) is not the type of superior knowledge that, if not disclosed, amounts to
concealment of a breach of warranty claim. We agree with the district court that the
unremarkable knowledge that a windshield wiper motor guaranteed for three years
might be prone to failure due to fatigue sometime after the warranty expires is too
broad an assertion to establish the type of superior knowledge that can substitute for
the false representation element of fraudulent concealment.




                                          -10-
       The Owens also challenge the district court's dismissal of their breach of
contract claim. They argue that the complaint states a common law breach of contract
claim based on GM's allegedly unfair implementation of the Special Policy, which
provides that GM "might in the future, without regard to the express warranty,
implement a Special Policy Adjustment Program . . . to fund repairs not covered by
the warranty." (Appellants' App. at 263.) They assert that fairness and good faith
obligated GM to include their 1999 Tahoe in the Special Policy program that offered
to repair identical wiper control modules on earlier model vehicles.

       Covenants of good faith and fair dealing are implied in every contract in
Missouri. See Magruder Quarry & Co. v. Briscoe, 83 S.W.3d 647, 651 (Mo. Ct. App.
2002). This duty prevents a party from exercising a judgment conferred by the
express contract "in such a manner as to evade the spirit of the transaction or so as to
deny the other party the expected benefit of the contract." Martin v. Prier Brass Mfg.
Co., 710 S.W.2d 466, 473 (Mo. Ct. App. 1986); see also Countrywide Servs. Corp.
v. SIA Ins. Co., 235 F.3d 390, 393 (8th Cir. 2000) (construing Missouri contract law).
Because GM had no contractual obligation to include the 1999 Tahoe in the Special
Policy program, its failure to do so cannot be characterized as evading the spirit of the
transaction or denying the Owens the expected benefit of their contract. The district
court properly dismissed this breach of contract claim.

       The Owens assert that the district court abused its discretion in denying their
second motion for leave to amend the complaint, but they proposed no actual changes
to the complaint. Rather, they were in effect seeking reconsideration of the district
court's dismissal ruling in light of the new facts alleged in the first amended
complaint, contrary to counsel's prior representations to the court that the first
amended complaint would not require rebriefing of the pending motion to dismiss.
The district court refused to permit this and also noted that, in any event, the
additional factual averments had been incorporated by virtue of the order granting the
first motion to amend. Furthermore, the second proposed "amendment" would have

                                          -11-
been futile because the district court concluded that it would not have altered the
outcome of the previous dismissal ruling. In light of these adequate justifications, we
find no abuse of discretion in the district court's denial of the Owens' second motion
for leave to amend the complaint. See Popoalii v. Corr. Med. Servs., 512 F.3d 488,
497 (8th Cir. 2008) (stating that futility justifies denial of a motion to amend and that
it is inappropriate to grant leave to amend a complaint where the plaintiff has not
submitted a proposed amendment).

                                     B.
                                 Summary Judgment

      The district court granted summary judgment to GM on the remaining
claim–the state law MMPA claim.6 We review the district court's grant of summary
judgment de novo, viewing the evidence in the light most favorable to the nonmoving
party. See Brannon v. Luco Mop Co., 521 F.3d 843, 848 (8th Cir. 2008). We will
affirm the grant of summary judgment if the record demonstrates that there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. See id.; Fed. R. Civ. P. 56(c).

      "The MMPA was enacted to preserve fundamental honesty, fair play, and right
dealings in public transactions." Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d
145, 160 (Mo. Ct. App. 2006). It provides:

      Any person who purchases or leases merchandise primarily for personal,
      family or household purposes and thereby suffers an ascertainable loss
      of money or property, real or personal, as a result of the use or
      employment by another person of a method, act or practice declared


      6
       The MMPA claim is subject to a five-year statute of limitations and was timely
asserted. See Mo. Rev. Stat. § 516.120 (2000); Ullrich v. CADCO, Inc., 244 S.W.3d
772, 778 n.3 (Mo. Ct. App. 2008).

                                          -12-
      unlawful by section 407.020, may bring a private civil action in either
      the circuit court of the county in which the seller or lessor resides or in
      which the transaction complained of took place, to recover actual
      damages.

Mo. Rev. Stat. § 407.025.1 (emphasis added). Thus, to successfully present an
MMPA claim, the Owens must demonstrate that they purchased personal merchandise
and that they suffered an ascertainable loss as a result of GM's use of one of the
methods or practices declared unlawful by Section 407.020. Those unlawful acts
include "any deception, fraud, false pretense, false promise, misrepresentation, unfair
practice or the concealment, suppression or omission of any material fact in
connection with the sale or advertisement of any merchandise in trade or commerce."
Mo. Rev. Stat. § 407.020.1 (2000). The MMPA does not specifically define deceptive
or unfair practices, but it "simply declares unfair or deceptive practices unlawful" in
order to "give broad scope to the meaning of the statute and to prevent evasion
because of overly meticulous definitions." State ex rel. Webster v. Areaco Inv. Co.,
756 S.W.2d 633, 635 (Mo. Ct. App. 1988). The statute provides that a deceptive
practice violates the MMPA regardless of whether the act was "committed before,
during or after the sale, advertisement or solicitation," Mo. Rev. Stat. § 407.020.1, and
it is not necessary to prove the elements of common law fraud in order to establish an
unlawful practice, State ex rel. Webster, 756 S.W.2d at 635.

       The Owens assert that they purchased the 1999 Tahoe for personal use and that
they suffered an ascertainable loss (the unreimbursed cost of repair) as a result of
GM's unfair practice of concealing a defect in the wiper motor assembly. The district
court assumed for purposes of summary judgment that GM's failure to disclose the
wiper malfunction problems in similar vehicles was a material omission in connection
with the sale of an automobile for personal use. The district court concluded,
however, that the Owens failed to submit evidence from which a jury could conclude
that they suffered an ascertainable loss as a result of that omission because they could
not demonstrate that the wiper motor in their 1999 Tahoe was actually defective.

                                          -13-
      The Owens assert that the district court erred in applying the proximate cause
standard of tort law to their MMPA claim, but there is no denying that causation is a
necessary element of an MMPA claim. Although the MMPA does not sound in tort
and does not require a showing of a product defect as a matter of course, the plain
language of the MMPA demands a causal connection between the ascertainable loss
and the unfair or deceptive merchandising practice. See Mo. Rev. Stat. § 407.025.1.
Where, as here, the alleged unfair practice is the failure to disclose a product defect,
there must be a showing that the Owens' vehicle in fact suffered that defect, or
evidence from which the defect reasonably could be inferred, in order to demonstrate
an ascertainable loss as a result of GM's failure to disclose the defect. As the district
court noted, "in the instant case, evidence of the precise nature of the defect is
paramount because only the defect which GM failed to disclose can give rise to an
MMPA claim." (Appellants' Add. at 38.)

        We agree with the district court that under the facts of this case, there could be
"any number of plausible causes for the failure" of the Owens' wipers. (Id. at 35.)
There was no direct evidence of a defect in their 1999 Tahoe wiper assembly. The
district court properly considered not only the lack of direct evidence of a defect but
also the insufficiency of the circumstantial evidence of causation in this case. There
is evidence that the same single-sided circuit board assembly failed in other vehicles
outside the warranty period due to weak solder joints, but there is also evidence from
Dr. Pecht, the Owens' own expert, that 23 percent of the wipers that failed did so for
no ascertainable cause and that many vehicles with the same wiper assembly did not
fail at all. GM's investigatory team identified 15 possible causes for the failures, and
although Dr. Pecht stated that the single-sided circuit board suffered from an
"increasing likelihood that it will fail outside the warranty period," he did not
conclude that the Owens' circuit board failed because it was defective. Many
variables, such as the manufacturing process, design specifications, location within
the engine, and various engine and model combinations affected the rate of failure,
and the Owens' wiper motor functioned normally for 6½ years and 98,000 miles. The

                                          -14-
district court was correct in concluding that the record does not present evidence from
which a jury could conclude, without engaging in speculation, that the Owens'
damages resulted from a defect of which GM was aware and failed to warn, or even
that circumstantially, the single-sided solder defect was the more reasonable cause of
their loss. See Willard v. Bic Corp., 788 F. Supp. 1059, 1069-70 (W.D. Mo. 1991)
(concluding in tort that proximate cause was lacking because other equally plausible
causes existed aside from a product defect and also granting summary judgment on
the MMPA claim because the record did not indicate that a product defect was the
more reasonable cause of the loss).

         The Owens argue that they should be permitted to demonstrate the required
causation through the theory of res ipsa loquitur, which permits the submission of a
question involving a product defect on the basis of inference without proof of a
specific defect. See Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1258
(8th Cir. 2006) (discussing the res ipsa loquitur doctrine under Missouri law). This
inference may be drawn where there is evidence tending to eliminate other possible
causes, demonstrating that the product was in the same basic condition at the time of
the failure as when it left the defendant's hands, and indicating that this type of failure
would not normally occur absent a product defect. Id. The undisputed facts do not
permit application of the doctrine of res ipsa loquitur in this case due to the character
and circumstances of the Owens' wiper failure. Other possible causes of failure were
identified and not ruled out, the vehicle was not in the same basic condition as when
it left the dealer 6½ years and 98,000 miles earlier, and a fatigue-related failure is not
the type of failure that would not normally occur absent a defect. See Nance v. Morris
Motors, Inc., 863 S.W.2d 694, 696, 698 (Mo. Ct. App. 1993) (refusing to apply res
ipsa loquitur in a vehicle malfunction case where a three-year-old vehicle had been
driven between 70,000 and 80,000 miles before the defendant worked on it, and the
vehicle was driven another 4,000 miles after the defendant worked on it before the
incident occurred).



                                           -15-
       The Owens cite Rauscher v. Gen. Motors Corp., 905 S.W.2d 158, 160-61 (Mo.
Ct. App. 1995), for the proposition that they need not point to a specific defect or
identify the precise nature of the defect in order to create a jury question, but Rauscher
is factually distinguishable. In that strict-liability case, the vehicle had begun stalling
within two months of its purchase. After numerous service visits, the problem
persisted and could not be identified. Eventually, the vehicle stalled in traffic and
caused an accident. Id. The court held that a reasonable jury could conclude on this
evidence, without expert testimony about a specific defect, that the vehicle was in a
defective and unreasonably dangerous condition. Id. at 160. By contrast, the wiper
motor in the Owens' 1999 Tahoe had worked without incident for 6½ years and
98,000 miles before failing. On this record, a jury would have to rely on pure
speculation to conclude, without the aid of expert testimony, that the Owens' wiper
motor was defective when the vehicle was sold.

      Because the Owens presented no evidence from which a jury reasonably could
conclude that their loss was the result of the alleged defect that GM failed to disclose,
the MMPA claim cannot survive summary judgment.

                                           III.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                           -16-
