*The HONORABLE WILLIAM W. SCHWARZER, United States

District Judge for the Northern District of California,

sitting by designation.

 The Honorable William G. Cambridge, Chief Judge, United

1

States District Court for the District of Nebraska. 

___________

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 Court in their product liability suit

1

against Hennessy Industries, the manufacturer of the tire-changing machine

at issue in this case. We affirm.
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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 tirechanging 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
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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.
 The Peitzmeiers evidently have abandoned their negligence

2

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.

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The Peitzmeiers filed suit against Hennessy, alleging causes of

action in strict liability and negligence. After discovery had been

2

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
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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
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(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
 The Peitzmeiers' citation to the opinion of another federal 3

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. 

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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
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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
 The Peitzmeiers argue that "crashworthiness" or "enhanced

4

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.

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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 tirechanging 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
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.

 The "bead hang-up" phenomenon occurs on those occasions when 5

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.

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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
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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
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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.