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 The HONORABLE WILLIAM G. CAMBRIDGE, Chief Judge of the

United States District Court for the District of Nebraska. 

___________

No. 95-1043

___________

Jeffrey J. Banks; Robin P. *

Banks, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Harley-Davidson, Inc.; *

Harley-Davidson of Omaha, Inc.; *

Gabriel of Canada, Ltd., ** Defendants - Appellees. * ___________

 Submitted: September 12, 1995

 Filed: January 9, 1996 ___________

Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges. ___________

LOKEN, Circuit Judge.

In this diversity case, Jeffrey and Robin Banks appeal the

district court's1 grant of summary judgment dismissing their damage

claims for injuries suffered in a motorcycle accident. The issue

is whether they presented sufficient evidence that a pre-existing

defect in the motorcycle's right rear suspension unit proximately

caused the accident. We affirm.

On July 7, 1991, as Jeffrey Banks drove his 1979 HarleyDavidson motorcycle into a curve on Highway N41 near Lake City,

Iowa, the motorcycle suddenly fell on its right side. Banks and
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his passenger, Robin Banks, remained with the motorcycle as it slid

across the highway and collided with a road sign. Both were

seriously injured. After the accident, the driver of a trailing

motorcycle, Larry Sulsberger, noticed that the right rear shock

absorber and suspension unit on Banks's motorcycle had dislocated

(physically separated) from the motorcycle frame.

Some months later, while repairing Banks's motorcycle,

Sulsberger discovered a fracture in the weld between the right rear

suspension unit and the lower eye ring which helps fasten the

suspension unit to the motorcycle frame. Further investigation

suggested that the weld had fractured because of a manufacturing

defect -- the weld could withstand only a 3,270 pound load, instead

of the 5,000 pound load required by Harley-Davidson design

specifications. The Banks sued the manufacturer of the motorcycle,

Harley-Davidson, Inc.; the manufacturer of the shock absorber,

Gabriel of Canada, Ltd.; and the firm that installed the shock

absorbers in early 1987, Harley-Davidson of Omaha, Inc. The Banks

alleged that this defect proximately caused their injuries. 

The Banks obviously have evidence of a manufacturing defect --

the substandard weld -- that likely caused the weld to fracture in

the suspension unit of Jeffrey Banks's motorcycle. However,

because the weld site was worn smooth, a condition known as

"peening," it is undisputed that the weld fracture occurred many

miles before the accident, which in turn means that the motorcycle

had been operated for some time with a fractured weld without

apparent difficulty. The question then becomes, how could the

defective weld have caused the accident? The Banks' theory is (1)

the manufacturing defect caused the weld to fracture; (2) the

fracture eventually caused the suspension unit to dislocate from

the motorcycle; and (3) the dislocation caused the accident. 

After substantial discovery, defendants moved for summary

judgment. For purposes of this appeal, their relevant evidentiary
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submissions were an affidavit and deposition testimony by their

expert, Raymond Miennert, a registered professional engineer and

independent consultant with twenty-two years experience in the

motorcycle manufacturing industry and forty-five years experience

riding motorcycles. Miennert testified that he had reviewed the

other depositions, had examined Banks's motorcycle and the scene of

the accident, and had ridden a similarly equipped motorcycle having

the same fractured weld through the accident site at four different

speeds. Miennert then opined that (i) the weld was fractured a

substantial time before the accident; (ii) a right rear suspension

unit with that weld fracture would not affect the motorcycle's

handling or operation; (iii) the suspension unit was designed to

prevent dislocation despite a fractured weld; (iv) it would be

particularly unlikely for a fractured weld to cause dislocation

while two persons are riding the motorcycle because the riders'

weight further compresses the spring, thereby securing the

suspension unit in place; (v) Miennert's accident simulations

confirmed that the force of a fall is necessary to dislocate a

suspension unit having a fractured weld; and (vi) if the suspension

unit had dislocated just before the accident, eyewitness

Sulsberger, who was carefully watching the rear of Banks's cycle as

they entered the curve, would have seen "a shower of parts" coming

off the vehicle and would have seen the bike sag two or three

inches, probably causing the exhaust pipe to scrape the ground.

Based upon these opinions, Miennert concluded that the suspension

unit became dislocated as a result of the accident, when the

motorcycle struck the sign post, and that "the accident was caused

by the motorcycle being ridden too fast for the conditions through

that specific location which caused a loss of control." 

Summary judgment is appropriate when the submissions to the

court "show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c); Layton v. U.S., 984 F.2d 1496, 1499

(8th Cir.), cert. denied, 114 S. Ct. 213 (1993). The party
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opposing summary judgment may not simply rely upon pleadings.

Summary judgment will be appropriate if that party "fails to make

a showing sufficient to establish the existence of [each] element

essential to that party's case, and on which that party will bear

the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). To meet their burden of proving proximate

cause under Iowa law, which the parties agree governs, the Banks

must show that the defective weld was a "substantial factor" in

producing their injuries, and that the accident would not have

occurred but for that defect. See Jones v. City of Des Moines, 355

N.W.2d 49, 50 (Iowa 1984). To defeat summary judgment, they must

show a genuine fact dispute on this issue. 

In opposing defendants' motion for summary judgment, the Banks

relied first upon the deposition testimony of eyewitness

Sulsberger. This experienced motorcyclist opined that the accident

must have been caused by the suspension unit dislocating, causing

Banks to lose control of the motorcycle. However, Sulsberger also

supported Meinnert's analysis by admitting that he was riding eight

to ten feet behind Banks's motorcycle as it entered the curve, that

he was watching its exhaust pipes, and that he never saw the bike

sag, parts fly off, or the exhaust pipes hit the pavement prior to

the accident. 

Second, the Banks relied upon Miennert's deposition admission

that, if a suspension unit did dislocate while the motorcycle was

moving, this would cause the bike to sag "a visible amount" and

could cause the rider to lose control. Third, plaintiffs relied

upon the deposition testimony of their only expert, a metallurgist

whose opinions tended to establish that a welding defect caused a

complete weld fracture some time before the accident. However,

this witness had no experience with motorcycles or suspension

systems. Therefore, he declined to express opinions regarding the

effect of a weld fracture on a driver's ability to control the

motorcycle, when the suspension unit on Banks's vehicle had
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dislocated, or whether the weld fracture was a substantial factor

in bringing about the accident.

Based upon these submissions, the district court granted

summary judgment for defendants because "plaintiffs are unable to

establish that the particular defect in this case was the proximate

cause of their injuries." On appeal, the Banks argue that the

district court erred in granting summary judgment because they

presented sufficient circumstantial evidence of proximate cause to

submit their case to a jury. 

Like the district court, we conclude that the Banks failed to

present sufficient evidence of proximate cause to avoid summary

judgment. Proximate cause is normally an issue for the jury under

Iowa law. But when plaintiffs seek to prove proximate cause by

circumstantial evidence, that evidence "must be sufficient to make

plaintiffs' theory asserted reasonably probable, not merely

possible, and more probable than any other theory based on such

evidence." Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739,

746 (Iowa 1977). Viewing the Banks' circumstantial evidence of

probable cause in the light most favorable to them, as we must, we

conclude they cannot meet this standard. 

There certainly was evidence of a defect that caused a weld in

the suspension unit to fracture. But defendants presented expert

testimony that a fractured weld by itself would not cause the

accident, that a fractured weld would not cause the suspension unit

to dislocate during operation, and that dislocation just before the

accident would have been observed by eyewitness Sulsberger. Those

opinions credibly attacked plaintiffs' causation theory, that the

fractured weld dislocated the suspension unit in a manner that

caused the accident. The Banks had no expert to refute Miennert's

opinions as to dislocation, even though this is a "fact issue upon

which the jury needs [expert] assistance to reach an intelligent or
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correct decision," Reed v. Chrysler Corp., 494 N.W.2d 224, 226

(Iowa 1992). 

The Banks instead responded to defendants' summary judgment

showing with only the testimony of witness Sulsberger that the

accident must have been caused by the suspension unit dislocating

just prior to the accident. But Sulsberger was neither held out

nor qualified as an expert. Though he was an experienced

motorcycle rider and mechanic, he offered no technical analysis to

support his opinion. Thus, if he offered that opinion at trial, it

would be circumstantial evidence of causation far less probable

than Miennert's explanation and opinions. Indeed, Sulsberger's lay

opinion on the ultimate issue of causation would most likely be

inadmissible. See Ruden v. Hansen, 206 N.W.2d 713, 717 (Iowa

1973). Thus, as in McCleeary v. Wirtz, 222 N.W.2d 409, 414 (Iowa

1974), plaintiffs failed to establish the necessary causal

relationship between the alleged welding defect and the injuries

they suffered in this tragic accident. In these circumstances, the

district court properly granted summary judgment for defendants. 

The judgment of the district court is affirmed.

A true copy.

Attest:

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