                                     ___________

                                     No. 95-2202
                                     ___________

Jeffrey L. Peitzmeier; Sherry L.         *
Peitzmeier,                                  *
                                             *
              Appellants,                    *
                                             *     Appeal from the United
     v.                                      *     States District Court for
                                             *     the District of Nebraska.
Hennessy Industries, Inc., a New         *
Jersey Corporation, d/b/a through        *
its divisions Coats Company and              *
Solar Industries, Inc.,                      *
                                             *
              Appellee.                      *


                                     ___________

                      Submitted:     December 12, 1995

                            Filed:   October 4, 1996
                                     ___________

Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER,* District Judge.

                                     ___________

BOWMAN, Circuit Judge.


     Jeffrey Peitzmeier and his wife, Sherry, appeal the adverse grant of
summary judgment by the District Court1 in their product liability suit
against Hennessy Industries, the manufacturer of the tire-changing machine
at issue in this case.      We affirm.




     *The HONORABLE WILLIAM W. SCHWARZER, United States
     District Judge for the Northern District of California,
     sitting by designation.
          1
       The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska.
                                        I.


      The background facts are not in dispute.          This action arose out of
an accident that took place when Jeffrey Peitzmeier, a mechanic at Top Tech
Automotive Garage in Yutan, Nebraska, was changing a tire using a Hennessy
tire-changing machine.


      The advantage of the Hennessy design is that the operator changes the
tire on a platform above the ground instead of kneeling down or bending
over and doing the work on the ground.          The machine makes it easier to
deflate and demount the old tire and to mount and inflate the new tire.
Removing air from the old tire is accomplished by a "bead loosener," a
mechanism that pushes the tire away from the rim of the wheel.            On the
Hennessy RC20-AA tire changer, the model at issue here, the bead loosener
is on the side of the machine.          After the bead loosening process is
complete, the operator places the tire and wheel onto the platform of the
machine, where clamps are placed on the rim of the wheel to hold it in
place for the demounting, mounting, and inflation phases of the tire-
changing procedure.


      In inflating the tire, the operator uses an inflation hose, which he
controls by depressing a foot pedal.         An air pressure gauge displays the
pressure in the tire in "psi" (pounds per square inch) as the operator
inflates the tire.    Proper inflation requires seating the "beads" (small
wires in the wall of the tire) against the outer flanges of the wheel.
When the beads seat they emit a "pop" sound, indicating that the tire then
may be inflated to its service pressure.


      Top Tech bought the tire changer from Hennessy in 1988.        It came with
a   customer   information   packet   consisting   of   operating   instructions,
warranty information, and warnings.     The printed instructions and bold face
labels included warnings: (1) that until the beads are seated a tire should
not be inflated in excess of




                                       -2-
forty psi, (2) that over-inflation can cause an explosion of the tire that
may propel the tire, rim, or equipment upward with sufficient energy to
cause injury or death, (3) that the operator should keep his hands and body
away from the inflating tire, (4) that the tire and rim should be inspected
for wear or defects before mounting, and (5) that the tire changer is not
intended to be a safety device for restraining exploding tires, tubes,
rims, or bead-seating equipment.        Peitzmeier was an experienced garage
mechanic who, from 1988 to June 4, 1992, the date of the accident, had used
the tire changer without incident approximately 150 to 200 times.            On the
occasion that gave rise to this lawsuit, Peitzmeier attempted to mount a
sixteen-inch tire on a sixteen-and-one-half-inch wheel.


     Because Peitzmeier had mismatched the smaller tire and the larger
wheel, the tire would not properly fit, or "bead up," on the rim.             After
some difficulty, Peitzmeier asked the owner of the garage, Lyle Foster, to
help him.   Foster suggested that Peitzmeier beat on the tire with a rubber
mallet.   Peitzmeier tried beating on the tire with a mallet, but the tire
still did not fit properly.    Foster next suggested that Peitzmeier add more
air to the tire.      Despite Hennessy's warning labels stating that the
operator should not inflate the tire to more than forty psi while seating
beads and that over-inflation can cause the tire to explode, Peitzmeier
added more air to the tire, increasing the tire pressure to sixty psi.


     When   Foster   learned   that   Peitzmeier   was    still   having   problems
changing the tire, he examined the tire himself and discovered the mismatch
of smaller tire to larger wheel.      When Foster explained to Peitzmeier that
he had mismatched the tire and wheel, Peitzmeier responded, "Oh, no
wonder," and began to release air from the tire.         As Peitzmeier did so, the
tire exploded and he was injured as the force of the explosion propelled
the tire and rim into his face and head.




                                       -3-
     The Peitzmeiers filed suit against Hennessy, alleging causes of
action in strict liability and negligence.2      After discovery had been
completed, Hennessy filed a motion for summary judgment, arguing, among
other things, that the testimony of the Peitzmeiers' expert, Alan Milner,
was inadmissible under Federal Rule of Evidence 702 as interpreted by the
United States Supreme Court in Daubert v. Merrell Dow Pharmecuticals, Inc.,
113 S. Ct. 2786 (1993).


     The District Court granted Hennessy's motion for summary judgment,
holding that Milner's testimony was inadmissible under Federal Rule of
Evidence 702 and Daubert, and that based on the admissible, undisputed
evidence Hennessy was entitled to judgment as a matter of law.         The
Peitzmeiers appeal.


                                   II.


     The Peitzmeiers argue that the District Court abused its discretion
in excluding Milner's testimony.    Decisions concerning the admission of
expert testimony lie within the broad discretion of the trial court, and
these decisions will not be disturbed on appeal absent an abuse of that
discretion.   Westcott v. Crinklaw, 68 F.3d 1073, 1075 (8th Cir. 1995).


     The admissibility of expert testimony is governed by Federal Rule of
Evidence 702, which states:


     If scientific, technical, or other specialized knowledge will
     assist the trier of fact to understand the evidence or to
     determine a fact issue, a witness qualified as an




       2
       The Peitzmeiers evidently have abandoned their negligence
claims on appeal, as their arguments focus only on strict liability
for design defect and strict liability for failure to warn. In any
case, our analysis would apply with even stronger force to any
asserted negligence claims, since such claims have a higher
threshold of proof than strict liability claims.

                                   -4-
       expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise.


The Supreme Court in Daubert makes it plain that the trial court is to act
as a gatekeeper in screening such testimony for relevance and reliability,
that   is,       make   an   assessment   whether   the   reasoning   and     methodology
underlying the testimony is scientifically valid.             See Daubert, 113 S. Ct.
at 2796.     In doing so, the court should consider, among other factors (1)
whether the theory or technique "can be (and has been) tested"; (2)
"whether the theory or technique has been subjected to peer review and
publication"; (3) "the known or potential rate of error"; and (4) whether
the theory has been generally accepted.             Id. at 2796, 2797.


       In this case, the Peitzmeiers sought to establish through Milner's
testimony that the tire changer was defectively designed.                    Milner would
have testified that in his opinion simple design changes on the machine
would eliminate the potential for injuries and that the tire changer is
defective in design in that (1) the machine acted as a "launch pad" for the
exploding tire and wheel assembly, (2) the clamps did not restrain the
exploding tire and wheel assembly, (3) the machine could not limit the
amount of air pressure the operator could put into the tire, (4) the
machine had no interlock system that would prevent the operator from
inflating the tire unless the restraint system was in place, and (5) the
machine had no mirror or other device by which the operator could inspect
the lower bead during inflation.


       As    a    threshold    matter,    the   Peitzmeiers   argue   that    Daubert   is
inapplicable to Milner's testimony, contending that his opinions are
founded on basic engineering principles, whereas Daubert applies only to
novel scientific testimony.           This argument fails, for our Court has not
given Daubert so narrow a reading.              See, e.g., Gier v. Educational Serv.
Unit No. 16, 66 F.3d 940, 943-44




                                            -5-
(8th Cir. 1995) (applying Daubert to psychological evaluations in cases of
alleged child abuse); Pestel v. Vemeer Mfg. Co., 64 F.3d 382, 384 (8th Cir.
1995) (applying Daubert to testimony of mechanical engineer).          We conclude
that the Daubert analysis is properly applied to Milner's proffered
testimony.


        We first consider whether Milner's theories or techniques have been
tested.    In that regard, Milner concedes that he has neither designed nor
tested for safety or utility any of the proposed safety devices that he
claims are missing from the Hennessy tire-changing machine. His only
demonstration of an alternative design is a series of rough sketches that
have not been adapted into engineering drawings, much less prototypes.
Milner has shown no factual basis to support an opinion that his design
changes are feasible or that they would not hinder the efficacy of
Hennessy's present tire-changing model.


        At the heart of Milner's opinion that the tire changer was defective
is his theory that the rotating platform on the tire changer acted as a
launch pad, which served to propel the tire upward when the explosion
occurred.     Milner admits, however, that he has never designed, built, or
tested a platform that has been shown to reduce the launch effect of an
exploding tire and wheel assembly while adequately supporting the tire and
wheel     assembly during the tire-changing process.            Clearly, Milner's
proffered testimony does not satisfy the first Daubert factor.


        Next we consider whether the theory or technique has been subjected
to peer review.    While not required for admissibility, "submission to the
scrutiny of the scientific community is a component of `good science,' in
part    because   it   increases   the   likelihood   that   substantive   flaws   in
methodology will be detected."           Daubert, 113 S. Ct. at 2797.       In this
regard, not one of Milner's proposed changes to the tire-changing machine
has been subjected to peer review.          The Peitzmeiers argue that Milner's
theories have in




                                          -6-
fact been subjected to peer review because he has testified about them in
court in other products liability cases.     We reject the suggestion that
cross-examination at trial and the number of Milner's court appearances in
design-defect cases can take the place of scientific peer review.    Because
Milner's concepts are unfinished and untested, and have not been subjected
to peer review, any testimony from Milner about how his proposed design
changes would have reduced Peitzmeier's injuries is wholly speculative.


     The final Daubert factors are the known or potential rate of error
and the general acceptance in the scientific community of the proffered
theories.   Because Milner has not conducted any experiments or testing of
any kind, there cannot be a known rate of error for his results.    Likewise,
no evidence is offered concerning a "potential" rate of error.      Moreover,
the Peitzmeiers offer no testimony regarding the general acceptance of
either Milner's theory or his methodology.


     Having carefully reviewed Milner's proffered testimony on design
defect in light of the factors enumerated in Daubert, we conclude that the
District Court did not abuse its discretion in excluding this testimony
because of its failure to satisfy the standards of Rule 702.3


     The Peitzmeiers also argue that the District Court erred in excluding
Milner's testimony regarding consumer expectation.   We need not and do not
address this issue.   Testimony on consumer expectation is relevant only to
show that a defect in a product




     3
      The Peitzmeiers' citation to the opinion of another federal
district court that denied a similar motion to exclude Milner's
testimony in a tire changer case is unavailing. See Meneely v.
Denman Tire Corp., No. 93-10151 (N.D. Fla. July 20, 1995). The
conclusions reached by a district court in a different case have no
bearing on the question of whether the District Court abused its
discretion in this case.

                                    -7-
makes the product unreasonably dangerous and unsafe for its intended use.
Here we do not reach that step of the analysis, because we hold that the
Peitzmeiers have failed to survive summary judgment on the antecedent
question of whether there was a defect in the Hennessy tire changer.   See
infra part III.A.


                                   III.


     The Peitzmeiers argue that the District Court erred in granting
summary judgment for Hennessy on their strict liability defective-design
and failure-to-warn claims.    We review de novo.   Brodnicki v. City of
Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996), petition for cert. filed, 65
U.S.L.W. 3086 (U.S. July 23, 1996) (No. 96-129).      We will affirm the
judgment if the record shows that there is no genuine issue of material
fact and the prevailing party is entitled to judgment as a matter of law.
Id.; see also Fed. R. Civ. P. 56 (c).


     With Milner's testimony properly excluded, we conclude there are no
genuine factual disputes on these claims and that Hennessy is entitled to
judgment as a matter of law.


                                    A.


     To defeat Hennessy's motion for summary judgment on the Peitzmeiers'
claim of strict liability for defective design under Nebraska law (which
the parties agree applies here), the Peitzmeiers needed to show genuine
issues of material fact on the five elements of the cause of action:   that
Hennessy placed the tire changer on the market knowing that it would not
be inspected for defects before use; that the tire changer was defective
when sold; that the alleged defect was a proximate cause of the injuries
Peitzmeier sustained while using the tire changer "in the way and for the
general purpose for which it was designed and intended"; that the alleged
defect made the tire changer "unreasonably




                                   -8-
dangerous and unsafe for its intended use"; and that Peitzmeier's "damages
were a direct and proximate result of the alleged defect."      Kudlacek v.
Fiat S.p.A., 509 N.W.2d 603, 610 (Neb. 1994) (quoting syllabus of the court
in Rahmig v. Mosley Mach. Co., 412 N.W.2d 56, 58-59 (Neb. 1987)).


     The Peitzmeiers have not presented any evidence, apart from Milner's
inadmissible opinions, to support a finding of defective design.   Instead,
the evidence all points in one direction:    toward a finding that the tire
changer was not defective, and that it certainly was not the proximate
cause of Peitzmeier's injuries.   The tire changer was sold in its intended
condition, free of any manufacturing defects, and had been used by
Peitzmeier before the accident some 150 to 200 times without incident.   The
Peitzmeiers offer no evidence that the machine was designed or marketed to
prevent a tire from exploding or to restrain a tire if it did explode, so
it follows that the machine's failure to so do in this case was not a
defect.    Further, there is no evidence that the tire changer itself
exploded or that it caused the tire and wheel assembly to explode.
Instead, the uncontroverted evidence shows that Peitzmeier's over-inflation
of the tire and mismatching of the tire and the wheel caused the explosion.
As any adult--most especially an experienced mechanic--would surmise, an
overinflated tire (especially one smaller than the wheel on which it is
mounted) is prone to explode.     Here it was the operator, not the tire-
changing machine, who mismatched the tire and wheel and then inflated the
tire well beyond the recommended safe psi.


     The District Court properly determined that Hennessy was entitled to
summary judgment on the Peitzmeiers' defective design claim.4


       4
       The Peitzmeiers argue that "crashworthiness" or "enhanced
injury" should apply to their case. The crashworthiness theory is
used to hold automobile manufacturers liable where, even though an
alleged defect in the automobile was not the proximate cause of the
initial collision, a manufacturer may nonetheless be liable for
injuries sustained in the second collision within the vehicle.
Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 610 (Neb. 1994). "Under
a theory of crashworthiness, the manufacturer is liable for only
that portion of the damages caused as a result of the defective
design. Therefore, the plaintiff must show that his injuries were
enhanced as a result of the defective design of the vehicle." Id.

                                    -9-
                                              B.


        The Peitzmeiers also argue that Hennessy knew of the "bead hang-up"5
phenomenon, and its relationship to the "launch pad" effect, and did not
adequately warn of these dangers on the tire changer.                 The Peitzmeiers do
not allege that Peitzmeier himself did not know of the dangers of "bead
hang-up," but only that Hennessy provided no warnings of the danger.


        Under section 402A of the Restatement (Second) of Torts, although a
product may be free from manufacturing or design defects, it nonetheless
may be defective if the manufacturer fails to warn or inadequately warns
users       about   dangers   inherent   in    the   use   of   the   product   that   the
manufacturer knows exist and about which the user is likely to be unaware.
Restatement (Second) of Torts § 402A cmt. j (1965).              The duty to warn does
not arise, however, "if the user knows or should know of the potential
danger, especially when the user is a professional who should be aware of




In cases involving "indivisible" injury, a plaintiff must establish
that the alleged defect was a substantial factor in causing the
alleged enhanced injuries. Id. at 611. Because the Peitzmeiers
have failed to survive summary judgment on their claim that the
tire changer is a defective product, we need not and do not reach
the issue of enhanced injury.
        5
      The "bead hang-up" phenomenon occurs on those occasions when
the operator of a tire changer is unable to mount a tire because a
wheel-tire mismatch, rust, imperfections in the wheel, improper
lubrication, or other condition causes one or more of the tire
beads to "hang up" and not slide across the wheel surface and seat
against the rim. If the operator tries to force a "hung-up" bead
to seat by over-inflation of the tire, the bead wires in the tire
can break, causing a sudden release of pressurized air--an
explosion.

                                          -10-
the characteristics of the product."   Strong v. E.I. DuPont de Nemours Co.,
667 F.2d 682, 687 (8th Cir. 1981) (applying Nebraska law in negligent
failure to warn case).


     As previously mentioned, the Hennessy tire changer was equipped with
explicit warnings.   "Where warning is given, the seller may reasonably
assume that it will be read and heeded; and a product bearing such a
warning, which is safe for use if it is followed, is not in defective
condition, nor is it unreasonably dangerous."       Restatement (Second) of
Torts § 402A cmt. j.     The warnings provided by Hennessy describe the
hazards of over-inflation, warn the operator not to exceed forty psi of air
pressure to seat beads, and warn the user never to exceed the tire
manufacturer's recommended air pressure.    The warnings on the tire changer
not only alert the operator to the danger of serious injury or death if all
warnings are not followed, but they also specifically warn the operator to
keep his hands and entire body away from the inflating tire.   Furthermore,
the warning label gives notice that the tire changer is not intended to be
a safety device for restraining exploding tires.       These warnings fully
satisfy any duty to warn that may have been present in this case.


     Finally, even if we assume for the sake of argument that the warnings
were somehow inadequate, the Peitzmeiers have made no showing that any such
inadequacy was the proximate cause of Peitzmeier's injuries.   "If, despite
deficient warnings by the manufacturer, a user is fully aware of the danger
which a warning would alert him or her of, then the lack of warning is not
the proximate cause of the injury."     Strong, 667 F.2d at 688 (negligent
failure to warn).


     In this case, Peitzmeier is an experienced mechanic who was familiar
with the Hennessy tire changer and who had used it to change between 150
and 200 tires before the accident.   Peitzmeier testified in his deposition
that he had read all of the Hennessy




                                     -11-
warning labels on the tire changer.    Despite the presence of such warnings,
Peitzmeier testified that it was his practice to exceed the service
pressure rating on the tire by as much as ten psi in order to seat the
beads.     It is undisputed that the explosion occurred after Peitzmeier
mismatched a sixteen-inch tire on a sixteen-and-one-half-inch wheel and
then, disregarding Hennessy's clear warnings, greatly overinflated the
tire.     In these circumstances, it is beyond cavil that an inadequate
warning was not the proximate cause of Peitzmeier's injuries.   The District
Court thus properly granted summary judgment in favor of Hennessy on the
Peitzmeiers' failure-to-warn claim.


                                      IV.


        The judgment of the District Court is affirmed.


        A true copy.


             Attest:


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




                                      -12-
