                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 05-4093
                                 ___________

Harold White; Lois White,              *
                                       *
           Plaintiffs/Appellants,      *
                                       *
     v.                                * Appeal from the United States
                                       * District Court for the District
Howmedica, Inc., A wholly              * of Nebraska.
owned subsidiary of Pfizer             *
Drug Company,                          *
                                       *
           Defendant,                  *
                                       *
MTG Divestitures, L.L.C.,              *
                                       *
           Defendant/Appellee.         *
                                  ___________

                            Submitted: March 12, 2007
                               Filed: June 26, 2007
                                ___________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                           ___________

BEAM, Circuit Judge.
        Harold and Lois White appeal the district court's1 dismissal of their suit on
summary judgment because they lacked expert testimony to support their product
liability claim. We affirm.

I.    BACKGROUND

       Lois White had a right knee replacement in 1996, performed by Dr. Stephen
Noel. Parts of the prosthetic knee were manufactured by Howmedica. Over the next
six years, White continued to have problems with the knee. In 2002, Dr. Noel
performed exploratory surgery, found that the prosthesis had fragmented, and
eventually replaced it with a new prosthesis. When Dr. Noel examined the original
prosthesis, he saw a small spherical cavity near the surface, and he concluded that this
cavity was caused by a manufacturing defect.

       The Whites filed this diversity products liability suit against the manufacturer
of the allegedly defective prosthetic knee parts. The district court's2 final progression
order required experts to be disclosed by July 15, 2005, and as of that date, the Whites
had not designated an expert. On August 26, 2005, MTG moved for summary
judgment, alleging that in the absence of expert testimony to establish a defect, the
Whites' action failed as a matter of law. In response to the summary judgment motion,
the Whites presented an affidavit from Dr. Noel, who had previously (and timely)
been disclosed as a non-expert witness. The district court held that the information
Dr. Noel proffered in the affidavit was expert testimony, and that the Whites had
failed to timely designate Dr. Noel as an expert. Accordingly, the district court
refused to consider Dr. Noel's expert testimony. Because expert testimony was




      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
      2
      The Honorable F. A. Gossett, United States Magistrate Judge for the District
of Nebraska.
                                     -2-
required by Nebraska law to establish their product liability claim, the district court
granted summary judgment in favor of MTG.

II.   DISCUSSION

       We review the district court's sanction of excluding Dr. Noel's expert3 testimony
for an abuse of discretion, Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694 (8th
Cir. 2001), and find none here. The district court was within its discretion to exclude
the Whites' untimely expert proffer because the Whites had ample time to comply with
the district court's progression order. The Whites filed suit in April 2004. The final
progression order was entered one year later in April 2005, mandating that all experts
be disclosed by July 2005. The Whites did not ask for an extension of time, and in
fact only proffered Dr. Noel's affidavit in response to the motion for summary
judgment. Accordingly, we affirm the district court's decision to exclude Dr. Noel's
affidavit as untimely.

       Because the Whites could not offer expert testimony to establish that the
prosthesis was defective, we turn to the question of whether the district court
appropriately granted summary judgment and dismissed the case based on this failure.
We review the district court's grant of summary judgment de novo. Roeder v. Metro.
Ins. and Annuity Co., 236 F.3d 433, 436 (8th Cir. 2001). Initially, we agree with the
district court's unchallenged conclusion that Nebraska substantive law governs this
dispute.

      The Whites concede that ordinarily in a medical product liability case, the
product defect must be established by expert testimony. E.g., Durrett v. Baxter
Chrysler-Plymouth, Inc., 253 N.W.2d 37, 39-40 (Neb. 1977). The Whites argue that


      3
        We assume for the purpose of this appeal that Dr. Noel could properly be
qualified as an expert in knee prosthetics under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
                                       -3-
there is an exception to that "requirement" when the defect is obvious to a layperson,
citing Laird v. Scribner Coop, Inc., 466 N.W.2d 798, 804 (Neb. 1991). We agree that
Nebraska seems to recognize a "layperson exception" to the necessity for expert
testimony in certain cases. E.g., Durrett, 253 N.W.2d at 39 (noting that "reliance on
eyewitnesses alone is not fatal when a defect is obvious to a layman"). However, we
agree with the district court's conclusion that "[t]he presence of a defect in an artificial
knee component . . . is not something that is so generally recognizable as to qualify
under the so-called common knowledge exception or to eliminate the need for expert
testimony." Not only that, but the knee appliance was removed six years after its
initial implantation in Lois White's leg. We think it rather obvious that a layperson
could not have determined whether, and perhaps when, the knee device was or became
defective in this case. Therefore, the layperson exception does not apply here, and the
Whites needed to present expert testimony to prevail in this case.

III.   CONCLUSION

      Because the Whites did not meet the district court's reasonable deadline for
designating the expert testimony necessary to prove their product liability claim, we
affirm the judgment of the district court.
                        ______________________________




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