### *The HONORABLE WILLIAM W. SCHWARZER, United State s

District Judge for the Northern District of California, sitting by designation. The Honorable William G. Cambridge, Chief Judge, Unite d 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, She rry, appeal the adverse grant of
summ aryjudgment by the District Court in their product liability sui t 1 against Hennessy Industries, the manufacturer of the tire-changing machine at issue in this case. We affirm.

### -2- I.

The ba ckground facts are not in dispute. This action arose out o f
an accident that took place when Jeffrey Peitzmeier, a mechanic at Top Tec h Automotive Garage in Yutan, Nebraska, was changi ng a tire using a Hennessy tire-changing machine.
The advantage of the Hennessy design is that the operator chang es the tire on a platform above the ground instead of kneeling down or bendin g
over and doing the work on the ground. The machine makes it easier t o 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 mech anismthat pushes the tire away from the rim of the wheel. On th e Hennessy RC20-AA tire changer, the model at issue here, the bead loosener is on the s ide of the machine. After the bead loosening process i s complete, the operato r places the tire and wheel onto the platform of the mach ine, where clamps are placed on the rim of the wheel to hold it i n place f or 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 operato r 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, ind icating that the tire then may be inflated to its service pressure.
Top Tech bought the tire changer from Hennessy in 1988. It cam e with
a customer information packet consisting of operating instructions , warranty information, and warnings. The printed instructions and bold fac e labels included warnings: (1) that until the beads are seated a tire shoul d not be inflated in excess of

### -3-

forty psi, (2) that over-inflation can cause an explosion of the tire that maypropel the tire, rim, or equipment upward with sufficient energy t o
cause injury or death, (3) that the operator should keep his hands and bod y away from the inflating tire, (4) that the tire and rim should be inspecte d for wear or defects b efore 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 garag e mechanic who, from 1988 to June 4, 1992, the date of the accident, had use d the tire changer with out 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 large r wheel, the tire would not properly fit, or "bead up," on the rim. After some difficulty, Peitzmeier asked the owner of t he garage, Lyle Foster, to help him. Foster suggested that Peitzmeier beat on the tire with a rubber mallet. Peitzmeier t ried beating on the tire with a mallet, but the tire still did not fit properly. Foster next suggested that Peitzmeier add mor e air to the tire. Despite Hennessy's warning labels stating that th e operator should not i nflate the tire to more than forty psi while seating bea ds and that over-inflation can cause the tire to explode, Peitzmeie r added more air to the tire, increasing the tire pressure to sixty psi.

When Foster learned that Peitzmeier was still having problem s changing the tire, he examined the tire himself and discovered the mismatc h of smaller tire to larger wheel. When Foster explained to Peitzmeier that he had mismatched the tire and wheel, Peitzmeier responded, "Oh, n o wonder," and began to release air from the tire. As Peitzmeier did so, th e 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 negligenc e 2 

### claims on appeal, as their arguments focus only on strict li ability for design defect and strict liability for failure to warn. In any case, our analysis would apply with even stronger force to an y asse rted negligence claims, since such claims have a highe r threshold of proof than strict liability claims.
-4- The Peitzmeiers filed suit against Hennessy, alleging causes o f action i n strict liability and negligence. After discovery had bee n 2 comple ted, Hennessy filed a motion for summary judgment, arguing, amon g other things, that th e testimony of the Peitzmeiers' expert, Alan Milner, was inadmissible unde r 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).

Th e District Court granted Hennessy's motion for summary judgment , holdin g that Milner's testimony was inadmissible under Federal Rule o f Evidence 702 and Daubert , and that based on the admissible, undispute d evidence Hennessy was entitled to judgment as a matter of law. Th e Peitzmeiers appeal.

II.

The Peitz meiers argue that the District Court abused its discretion in exc luding Milner's testimony. Decisions concerning the admission o f expert testimony lie within the broad discretion of the trial court, and these dec isions will not be disturbed on appeal absent an abuse of tha t discretion. Westcott v. Crinklaw , 68 F.3d 1073, 1075 (8th Cir. 1995).
The admissibility of expert testimon y 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 t o determine a fact issue, a witness qualified as an

### -5- expert by knowledge, skill, experience, training, o r 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 i s, make an assessment whether the reasoning and methodolog y 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 t he theory or technique "can be (and has been) tested"; (2 ) "whet her the theory or technique has been subjected to peer review an d publication"; (3) "th e 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 tes timonythat the tire changer was defectively designed. Milner woul d have testified that in his opinion simple design changes on the machin e would eliminate the potential for injuries and that the tire changer i s defective in design in that (1) the machine acted as a "launch pad" for th e explo ding tire and wheel assembly, (2) the clamps did not restrain th e explo ding tire and wheel assembly, (3) the machine could not limit th e amount of air pressure the operator could put into the tire, (4) th e mach ine had no interlock system that would prevent the operator fro m 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 i s in applicable to Milner's testimony, contending that his opinions ar e founded on basic engineering principles, whereas Daubert applies only to novel scientific testimony. This argument fails, for our Court has no t given Daubert so narrow a reading. See , e.g. , Gier v. Educational Serv. Unit No. 16 , 66 F.3d 940, 943-44

### -6-

(8th Cir. 1995) (applying Daubert to psychologic al 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 mechanic al engineer). We conclude that t he Daubert analysis is properly applied to Milner's proffere d testimony.

We first consider whether Milner's theories or techniques have been tested. In that rega rd, Milner concedes that he has neither designed nor tested fo r safety or utility any of the proposed safety devices that h e claims are missing from the Hennessy tire-changing machine. His onl y demonstration of an a lternative design is a series of rough sketches that have n ot been adapted into engineering drawings, much less prototypes

. Milner ha s shown no factual basis to support an opinion that his desig n cha nges are feasible or that they would not hinder the efficacy o f Hennessy's present tire-changing model.
At the heart of Milner's opinion tha t 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 explosio n occurred. Milner admits, however, that he has never designed, built, or tested a platform that has been shown to reduce the launch effect of a n exploding tire and wheel assembly while adequate ly 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 c onsider whether the theory or technique has been subjected to peer review. Whil e not required for admissibility, "submission to the scrutiny of the scien tific community is a component of `good science,' in part b ecause it increases the likelihood that substantive flaws i n meth odologywill be detected." Daubert , 113 S. Ct. at 2797. In thi s regard, not one of Mi lner'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 

### distri ct court that denied a similar motion to exclude Milner' s testi mony in a tire changer case is unavailing. See Meneely v

. Denma n Tire Corp. , No. 93-10151 (N.D. Fla. July 20, 1995). Th e conclusions reached by a district court in a different case have no bearing on the question of whether the District Court abused it s discretion in this case.
-7- fact been subjected t o peer review because he has testified about them in court in other products liability cases. We reject the suggestion tha t cross-examination at trial and the number of Mil ner's court appearances in design-defect cases can take the place of scient ific peer review. Because Milner's concepts are unfinished and untested, a nd have not been subjected to peer review, any testimony from Milner about how his proposed desig n changes would have reduced Peitzmeier's injuries is wholly speculative.

The fin al Daubert factors are the known or potential rate of erro r and the general acceptance in the scientific community of the proffere d theories. Because Mi lner 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 offere d concerning a "potential" rate of error. Moreover, the Pe itzmeiers offer no testimony regarding the general acceptance o f either Milner's theory or his methodology.

Ha ving carefully reviewed Milner's proffered testimony on desig n defect in light of the factors enumerated in Dau bert , we conclude that the Dis trict Court did not abuse its discretion in excluding this testimon y because of its failure to satisfy the standards of Rule 702. 3
The Peitzmeiers also argue that the District Court erred in exc luding Milner's testimony regarding consumer expectatio n. We need not and do not address this issue. Testimony on consumer expec tation is relevant only to show that a defect in a product

### -8-

makes the product unr easonably dangerous and unsafe for its intended use. Here we do not reach that step of the analysis, because we hold that the Peitzm eiers have failed to survive summary judgment on the anteceden t question of whether t here was a defect in the Hennessy tire changer. See infra part III.A.

III.

The Peitzmeiers argue that the District Court erred in grantin g summaryjudgment for Hennessy on their strict liability defective-design and failure-to-warn claims. We review de novo

. Brodnicki v. City o f Omaha , 75 F.3d 1261, 1264 (8th Cir. 1996), petition for cert. filed , 6 5 U.S.L. W. 3086 (U.S. July 23, 1996) (No. 96-129). We will affirm th e judgment if the record shows that there is no genuine issue of materia l fact and the prevaili ng party is entitled to judgment as a matter of law. Id. ; see also Fed. R. Civ. P. 56 (c).

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

A.
To defeat Hennessy's motion for summ ary judgment on the Peitzmeiers' claimof strict liability for defective design under Nebraska law (which the parties agree applies here), the Peitzmeiers needed to show genuin e issues of material fact on the five elements of the cause of action: that Hennessyplaced 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 w hich it was designed and intended"; that the alleged defect made the tire changer "unreasonably

### The Peitzmeiers argue that "crashworthiness" or "enhance d 4 

### injury" should apply to their case. The crashworthiness theory is used to hold automobile manufa cturers liable where, even though an alleged defect in the automobile was not the proximate cause of the init ial collision, a manufacturer may nonetheless be liable fo r in juries sustained in the second collision within the vehicle

. Kudlacek v. Fiat S.p.A. , 509 N.W.2d 603, 610 (Neb. 1994). "Under a t heory of crashworthiness, the manufacturer is liable for onl y that portion of the damages caused as a result of the defectiv e design. Therefore, the plaint iff must show that his injuries were enhanced as a result of the de fective design of the vehicle." Id.
-9- dangerous and unsafe for its intended use"; and that Peitzmeier's "damages
were a di rect 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 cour t in Rahmig v. Mosley Mach. Co. , 412 N.W.2d 56, 58-59 (Neb. 1987)).
The Peitzmeiers have not presented a ny evidence, apart from Milner's inadmissible opinions, to support a finding of d efective design. Instead, the evidence all poin ts in one direction: toward a finding that the tire chang er was not defective, and that it certainly was not the proximat e cause of Peitzmeier's injuries. The tire change r was sold in its intended conditio n, free of any manufacturing defects, and had been used b y Peitzmeier before the accident some 150 to 200 times without incident. Th e Peitzmeiers offer no evidence that the machine w as designed or marketed to prevent a tire from e xploding 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 itsel f exp loded or that it caused the tire and wheel assembly to explode

. Instead, the uncontroverted evidence shows that Peitzmeier's over-inflatio n 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 i s 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 determin ed that Hennessy was entitled to summary judgment on the Peitzmeiers' defective design claim. 4

### In cases involving "indivisible" injury, a plaintiff must es tablish

that the alleged defect was a substantial factor in causing th e alleged enhanced injuries. Id. at 611. Because the Peitzmeier s have failed to survive summary judgment on their claim that th e tire changer is a defective product, we need not and do not reach the issue of enhanced injury.
The "bead h ang-up" phenomenon occurs on those occasions when 5 

### the operator of a tire changer is unable to mount a tire because a whee l-tire mismatch, rust, imperfections in the wheel, imprope r lubrication, or other condition causes one or more of the tir e beads to "hang up" and not sli de 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 ca n break, causing a sudden release of pressurized air--a n explosion.
-10- B.
The Peitzmeiers also argu e that Hennessy knew of the "bead hang-up" 5 phenomenon, and its relationship to the "launch pad" effect, and did not adequately warn of th ese dangers on the tire changer. The Peitzmeiers do not alleg e that Peitzmeier himself did not know of the dangers of "bea d hang-up," but only that Hennessy provided no warnings of the danger.

Under sec tion 402A of the Restatement (Second) of Torts, although a product may be free from manufacturing or design defects, it nonetheless maybe defective if the manufacturer fails to warn or inadequately warns
users a bout dangers inherent in the use of the product that th e manufacturer knows exist and about which the use r is likely to be unaware. Restatement (Second) of Torts § 402A cmt. j (196 5). The duty to warn does not arise, however, "if the user knows or should know of the potentia l danger, especially wh en the user is a professional who should be aware of

### -11-

the characteristics of the product." Strong v. E.I. DuPont de Nemours Co. , 667 F.2d 6 82, 687 (8th Cir. 1981) (applying Nebraska law in negligen t failure to warn case).
As previously mentioned, the Henness y tire changer was equipped with explicit warnings. "Where warning is given, the seller may reasonabl y
assume tha t 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 defectiv e condit ion, nor is it unreasonably dangerous." Restatement (Second) o f Torts § 402A cmt. j. The warnings provided by Hennessy describe th e hazards of over-inflation, warn the operator not to exceed forty psi of ai r pressure to seat beads, and warn the user never to exceed the tir e manufacturer's recommended air pressure. The wa rnings on the tire changer not only alert the operator to the danger of serious injury or death if al l warnings are not followed, but they also specifi cally warn the operator to keep his hands and entire body away from the inf lating tire. Furthermore, the warning label gives notice that the tire cha nger is not intended to be
a safety device for restraining exploding tires. These warnings full y 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 wa rnings
were somehow inadequate, the Peitzmeiers have made no showing that any suc h inadequacy was the proximate cause of Peitzmeier 's injuries. "If, despite deficient warnings by the manufacturer, a user is fully aware of the dange r which a warning would alert him or her of, then the lack of warning is not the proxi mate cause of the injury." Strong , 667 F.2d at 688 (negligen t failure to warn).
In this case, Peitzmeier is an exper ienced 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 t estified in his deposition that he had read all of the Hennessy

### -12-

warning labels on the tire changer. Despite the presence of such warnings , Peitzmeier testified that it was his practice to exceed the servic e pressure rating on the tire by as much as ten psi in order to seat th e beads. It is undisputed that the explosion occurred after Peitzmeie r mismatched a sixteen-inch tire on a sixteen-and-one-half-inch wheel an d then , disregarding Hennessy's clear warnings, greatly overinflated th e tire

. In these circumstances, it is beyond cavil that an inadequat e warning was not the proximate cause of Peitzmeier's injuries. The Distric t 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.