The Ho norable Ann D. Montgomery, United States District Judge for th e 1 District of Minnesota.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 98-1453

___________ Michael D. Trost, * Plaintiff/Appellant, *

v. * District Court for the Trek Bicycle Corporation, * Defendant/Appellee. * *

* Appeal from the United States

* District of Minnesota.

*

___________ Submitted: Oct. 20, 1998 Filed: December 23, 1998

___________ Before McMILLIAN, LAY, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

This pro ducts liability case arose from an accident Michael Trost had whil e riding a bicycle manufactured by Trek Bicycle Corporation (Trek). Judgment wa s entered for Trek after the dist rict court decided that Trost had not produced sufficient

1 timely eviden ce to withstand a motion for summary judgment. Trost appeals, and we affirm.The distric t court did not give separate attention to a breach of warranty claim 2 in its summary judgment discussion, an d Trost has not raised any warranty issue in his briefing on appeal.
-2- I. Michael Trost purchased a Trek all-terrain bicycle in 1991 and used it regularly until July 25, 1996, when he had the accid ent that gave rise to this action. He rode the bicycle approximately 35 miles each week during su mmer and ten miles weekly during winter, when he used chains on the tires to increase their traction. His rides included off- road trails and lasted up to five hours. The accident occurred as Trost was riding home from work along a path in a ditch. Suddenly the front end of the bicycle dropped precipi tously. To him it felt as if the front of the bicycle had “dropped into a manhole.” He was pitched over the handlebars and “knocked out,” and he suffere d injuries to hi s head, neck, and face. Later examination of the bicycle showed that the top t ube of the bicycle frame had fractured near the point where it met the fron t steering tube. Trost claims that this fracture caused the accident.
Trost filed this action against Trek in January 1997, alle ging that the bicycle was defective in design, manufacture, and warnings, that the defects caused the accident, and that Trek had breached its warranty. Both sides co nsulted experts to prepare their 2 cases, and the court set 1997 scheduling deadlines for disclosure o f all expert witnesses by September 1, completion of expert discovery by October 1, and filing of dispositive motions by November 1. The case was to be ready for trial by December 1, 1997.
Trek moved for summary judgment on October 31, 1 997, on the basis that Trost had not produced competent evidence to suppo rt his claims. The district court granted the motion, finding the opinion of Trost’s expert inadmissible because it was untimely, inadequate, and based upon insufficient e xpertise. The district court further found thatBrettin g described Trost’s path in the ditch as a “drastic drop in elevation” — 3 descending at an angle of between 25 and 30 degre es to an open pipe, with a 17.5 inch drop-off into the pipe. In his opinion, the accident was
the result o f riding a bicycle down a steep hill and impacting into a flat at the bot tom of the down slope. This caused the front wheel to sto p abruptly

. . . caus[ing] the bicycle to overturn . . . [and] the frame to fail . . . . The failure of the bicycle is purely a result of the accident and is not the cause of the accident . . . . Trost w ould have sustained similar injuries regardless of [the] frame failure.
-3- even if the expert opinion were considered, Trost had not established a prima facie case for any his claims.

II.

Short lyafter the accident, the bicycle was visually inspected by Lester Engel , a metallurgical engineering expert hired by Trost . Engel observed a microscopic crack which he said “could have initiated the [bi cycle frame’s] failure.” Engel indicated that more information could be obtained by additional t esting, but Trost did not request any further testing at that time. Trost hoped he could avoid spending money for more tests, and he shared Engel’s observations with Trek prior to starting this action.

Gerald Bretting, an accident reconstructionist expert hired by Trek, examine d the bicycle and the accident site on May 30, 1997. He prepared a report and sent it to Trek o n September 22. Bretting’s report disputed both Trost’s historical account o f the accident and his claim that the tube fracture had caused the accident. 3

Tros t received a copy of Bretting’s report on September 24. At that time th e deadline for expert discovery was only seven days away. Trost had nevertheless not yet obtained an expert report of his own and he had not scheduled depositions fo r Bretting or any Trek manufacturing or design personnel. He forwarded Bretting’sIn reaching this conclusion Engel assumed that Tros t’s bicycle had not been put 4 through unforeseeable stresses. Tr ostsubsequently filed Engel’s supplemental letter with the clerk o n 5 December 18. In it Eng el discussed details regarding the bicycle’s condition after the acciden t and preexisting microscopic fatigue cracks where the top tube had bee n braz ed. It was at this point that the fracture began, according to Engel. Using dat a fro m sources other than Trek’s manufacturing process, he concluded that brazin g -4- report to Engel for his review on September 30. Even though expert discovery was to be comp leted by October 1, Trost made no attempt to obtain an extension of th e deadline. After consulting with Engel on October 23, Trost notified Trek the next day th at additional testing would be performed on the bicycle. That testing was not done until Nove mber 12, forty-two days after the deadline for completion of expert discovery and twelve days after Trek had filed its motion for summary judgment.

In an affidavit dated November 13, 1997, Engel stated his opinion that a preexisting crack had initiated the frame failure, that the crack was due to meta l fatigue, that the fr ame was not strong enough to withstand foreseeable loads, that the 4 lack of frame strength indicated a design defect, that the brazing step in th e manufacturi ng process had lowered the fatigue strength of the frame at the fractur e po int, and that the “bicycle was not designed or constructed to take reasonabl y foreseeable fatigue stresses in the bike’s norma l operation at the point where the frame failur e occurred.” Trost submitted this affidavit to the court with his summary judgment response on November 18.
On November 25, Engel prepared a three page letter to supplement his affidavit. Trost gave the

letter to Trek on November 30, sixty days after the deadline for expert discovery, and tried to present it to the district court at the December 3 hearing o n Trek’s summary judgment motion. The district court declined to accept th e supplement al letter and stated that in deciding the pending motion it would conside r only the materials submitted in advance of the hearing. 5typically re duces a tube’s strength about 18%, but in his opinion the strength of thi s

tu be had been reduced about 40% at the fracture origin. He concluded that the “root cause of the failure [was] improper brazing of the tube which resulted in the unusually low ha rdness in the tube at the fracture origin.” Elsewhere in the letter, however , Engel stated that the postaccident condition of the bicycle “sug gests an overload failure of the frame.” The letter did not discuss the general attributes of the Trek all-terrain bicycle or the expected streng th of the top tube, the intended and foreseeable loads on the top tube, or the strength required to withstand such loads. The memorandum did not mention or consider Engel’s supplemental letter. 6
-5- The dis trict court granted Trek’s summary judgment motion in a memorandum opinion and order issued

on December 22, 1997. The district court ruled that Engel’s affida vit was inadmissable because it was untimely, did not comport with th e

6 substantiv e requirements of Fed. R. Civ. P. 26, and was based upon insufficien t
ex pertise. The district court then concluded that Trost had not shown a triable issu e of fact on any of his claims. Even if the expert affidavit had been admissible, it failed to “raise a material issue of fact concerning either defect or causation,” require d elements of

a products liability claim. Summary judgment was therefore granted i n Trek’s favor.

On appeal Trost argues that the district court erred in concluding there was no genuine issu e of material fact and in excluding Engel’s opinion on the basis o f timeliness and insufficient expertise. T rek responds that Engel’s opinion was properly rejected and that Trost failed to produce sufficient evidence to avoid summary judgment.-6- III.

A.

We re view the district court’s decision to exclude the opinion of Trost’s expert for abuse of discre tion, see Peitzmeier v. Hennessy Indus., Inc. , 97 F.3d 293, 296 (8th Cir. 1996), c ert. denied , 117 S. Ct. 1552 (1997), and will only reverse if its decisio n was based on “an erroneous view of the law or a clearly erroneous assessment of the evidence,” Richards v. Aramark Servs., Inc. , 108 F.3d 925, 927 (8th Cir. 1997).
There is no question that the expert evidence was late. October 1, 1997 was the dead linefor expert discovery, and Engel’s November 13 affidavit and November 2 5 letter we re submitted well beyond that date. “A party that . . . fails to disclos e information re quired by Rule 26(a) . . . shall not be permitted to use [the nondisclosed information] as e vidence at a trial, at a hearing, or on a motion” “unless such failure is harm less” or there was “substantial justification” for the failure. Fed. R. Civ. P

. 37(c)(1). Rule 16 gives the district court the authorityto set management deadlines and to impose sanctions for the ir violation. Fed. R. Civ. P. 16(b), (c)(5)-(7), (f). The rules thus permi t a court to exclude untimely evidence unless the failure to disclose wa s either harmless or substantially justified. The district court specifically found tha t Trost’s failure to disclose

the evidence on a timely basis was not substantially justified and also implied that it was not harmless.

Trost argues that in fairness the district court should have considered Engel’ s opinion alo ng with that of Bretting, that the untimely production of Engel’s affidavi t and letter was substantially justified b ecause additional testing was required to respond to Bretting’s report which had only been submitted about o ne week before the deadline,Trost also argues that he made timely disclosure becau se he had turned over the 7 resul ts of Engel’s initial inspection prior to filing the lawsuit. Engel’s stronges t stat ement in that initial letter, however, had been that the preexisting crack “coul d have” init iated the failure. This statement is insufficient to satisfy Trost’s burden o f proof so we need not consider whether the letter qualifies as a report within th e meaning of Rule 26.
-7- and that there had been no prejudice to Trek. Trost also claims that Bretting’s report 7 should actually have been submitted by September 1, 1997, the deadline for each party to disclose all expert witn esses, because Rule 26(a)(2) provides that an expert’s report must accompany the disclosure.

Trost ha d the burden of proof as the plaintiff. He had to produce sufficien t competent

evidence to make out a prima facie case regardless of what evidence Trek might assemble. Since failure to disclose in a timely manner is equivalent to failure to disclose, see Sylla-Sawdon v. Uniroyal Goodrich Tire Co. , 47 F.3d 277, 284 (8th Cir. 1995), Trost needed to produce competent evidence within deadlines set by the court or risk sanctions under Rules 16 and 37. It is risky for a plaintiff in a products liability
case to sit back and wait to see what a defense expert might say before seeking a n expert report. If Trost had a legitimate need to await Bret ting’s report before producing the evid ence necessary to meet his burden of proof, then his proper course of actio n wouldhave been to seek an extension of the deadline. His failure to comply with the deadline was not substantially justified, and it cannot b e said that it was harmless. Trek had prepared its summary judgment motion at least partially premised on the lack o f exper t opinion to support Trost’s claims. Since the case was then on the court’ s January trial calendar, Trek would have been significantly prejudiced by the lat e production of Engel’s opinion bec ause of lack of time to prepare to refute the evidence at trial. I n addition, the court’s trial calendar would have been disrupted if a continuance became necessary.-8-

Because Trost’s untimely expert disclosure was neither substantially justified nor harmless, it was within

the power of the district court to impose sanctions under Rules 16 and 37. Whil e we might well have decided the question of an appropriate sanction dif ferently, we cannot say the district court’s choice of sanctions was an abuse o f discretion. We therefore affirm the exclusion of Engel’s opinion on the basis o f untimel iness and need not discuss whether his opinion conformed to other Rule 2 6 requirements or whether there was sufficient foundation for it.

B. To recover in his products liability suit , Trost must establish that the bicycle was in “a defective condition unreasonably dangerous for its intended use.” Bilotta v

. Kelley Co. , 346 N.W.2d 616, 623 n.3 (Minn. 1984) (citing Lee v. Crook ston Coca-Cola Bottling Co. , 188 N.W.2d 426, 432 (Minn. 1971)); accord Patton v. Newmar Corp

. , 538 N.W.2d 116, 119 (Minn. 1995). Other than Engel’s opinion, the only evidence o f defect upon which Trost relied is a res ipsa loquitur type of inference. He argued that the accident would not have happened if the bicycle had not been defective. I n Minnesota res ipsa loquitur alone cannot make out a products liability case. Se e Cerepak v. Revlon, Inc. , 200 N.W.2d 33, 35–37 (Minn. 1972). Trost’s account of the acciden t is not “sufficient proof that the [bicycle] was defective or that it caused th e [accident]. [Trost] ha[s] to introduce something more.” Peterson v. Crown Zellerbach Corp. , 2 09 N.W.2d 922, 924 (Minn. 1973). Even if a jury were to resolve historica l fact dispute s in Trost’s favor, there would still be insufficient evidence to support a verdict for him.
Even if Trost could prove that the bicycle was in a defective condition, he would also have to show that it was unreasonably dangerous. See Kallio v. Ford Motor Co. , 407 N.W.2d 92, 96 (Minn. 1987). The “reasonable care balancing test” is used i n Mi nnesota

to determine if a product was designed in a “defective conditio n unreaso nably dangerous for its intended use.” Kallio , 407 N.W.2d at 95; Bilotta , 346-9-

N.W.2d at 621–2 3. “What constitutes ‘reasonable care’ will, of course, vary with the surrounding circumstances an d will involve ‘a balancing of the likelihood of harm, and the grav ity of harm if it happens, against the burden of the precaution which would be effec tive to avoid the harm.’” Holm v. Sponco Mfg. , 324 N.W.2d 207, 212 (Minn

. 1982) (quoting Micallef v. Miehle Co. , 348 N.E. 2d 571, 577–78 (N.Y. 1976) (citations omitted)). The test is an objective standard “which focuses on the conduct of th e manufa cturer

in evaluating whether its choice of design struck an acceptable balanc e among several competing factors.” Bilotta , 346 N.W.2d at 622. Trost has produced no informati onupon which to evaluate the likelihood of harm, the expected gravity o f harm, or what precautions could have avoided the harm. He provided no alternativ e designs to sho w Trek could have improved the strength of the tube without sacrificing some other i mportant quality. Since Trost did not provide any evidence upon which a ju ry could evaluate whether the alleged defective condition made the bicycl e unreasonably dangerous, the “record taken as a whole could not lead a rational trier of fac t to find for [Trost],” and summary judgment was appropriate. Matsushita Elec

. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

IV.

Insummary, we conclude that the district court did not abuse its discretion i n excluding Trost’s expert opinion and did not err in concluding that Trost had no t produced sufficient competent evidence to withstand summary judgment. Th e judgment of the district court is therefore affirmed.
A true copy.

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