# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-2332

___________________________ Flora Loomis; Brian Loomis

lllllllllllllllllllll Plaintiffs - Appellants

v. Wing Enterprises, Inc., doing bus iness as Little Giant Ladder

lllllllllllllllllllll Defendant - Appellee

____________ Appeal from United States District Court for the Western District of Missouri - Jefferson City

____________ Submitted: April 14, 2014 Filed: June 26, 2014

____________ Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

____________ BYE, Circuit Judge.

Flora Loomis suffered injuries while us ing a Little Giant Ladder. She and her husband, Brian, brought a pr oducts liability action against the ladder's manufacturer, Wing Enterprises, Inc. After excluding all of Flora's expert testimony, the districtcourt 1 determined the Loomises had insuffi cient evidence to prove their various theories of products liability and granted Wing's motion for summary judgment. The Loomises appeal claiming the district c ourt abused its discretion when it excluded evidence of one set of tests performed by their expert. We affirm.

I

On November 27, 2010, Flora Loomis wa s using a Little Giant Ladder to string Christmas lights on the front of her house above her driveway. The Little Giant is a telescoping step ladder that can be set in a number of configurations. Before hanging the Christmas lights, Flora and Brian configured the ladder in an "A-Frame" configuration with the ladder's steps set two positions below maximum height. Flora then climbed the ladder to begin hanging the lights. Af ter completing one section of lights, Flora pushed the ladde r several feet across the driveway and climbed it again to continue hanging lights. While reaching to hang the lights, she fell from the ladder and injured her left foot.

The Loomises filed suit against Wing alle ging Flora's injuries were the result of the defective and unreasonably dangerous design and manufacturing of the ladder. They retained an expert, Professor D ouglas Smith, P.E., Ph .D., who performed a number of tests on the ladder and prepared reports setting forth his conclusions about the ladder's allegedly dangerous characteristics. As relevant to the limited issue raised on appeal, Dr. Smith performed one set of te sts the parties refer to as the compression tests. The purpose of the compression te sts was to determine whether – by pushing the ladder across the driveway – Flora could have compressed the ladder's legs together in a way that cause d tension, or stored energy, in the legs. Dr. Smith theorized this stored energy made the la dder unstable because the legs could shift

1 The Honorable Nanette K. Laughrey, Unite d States District Judge for the Western District of Missouri.
-2-suddenly when the stored energy was releas ed while someone clim bed the ladder. To perform the compression tests, Dr. Smith lif ted up the rear of the ladder by tipping it backwards in a way that would compress th e front and rear sections when it came to rest. Dr. Smith then pushed the front of th e ladder several inches toward the rear in order to further compress the ladder. Thes e acts had to be performed carefully and deliberately to prevent the ladder from "k icking out" immediately. Dr. Smith then climbed the ladder and intenti onally jerked his weight back to force the ladder's legs to shift. Dr. Smith weighed 205 pounds at the time of his compre ssion tests. Flora Loomis weighed 140 pounds at the time of the accident.

Wing filed a motion in limine seeking to exclude Dr. Smith's compression tests and the opinions related to those tests. Wing also filed a motion for summary judgment. The district court exclude d Dr. Smith's testimony regarding the compression tests on the grounds there wa s no connection between the methodology used to conduct the compression tests and th e events that occurred on the day of the accident. The district court compared Dr. Smith's conduc t in compressing the ladder with Flora's testimony about how she pushe d the ladder across the driveway in a straight line. The district court determined Dr. Smith's conduct did not comport with the events on the day of the accident. Th e district court then determined the "compression test is inadmissible because Plaintiffs have not presented sufficient evidence for a jury to find th at, at the time of Flora Loom is's accident, the ladder was compressed in the manner Dr. Smith stressed it for this test."

After excluding Dr. Smith's testimony, the district court granted Wing's motion for summary judgment and denied a motion for reconsideration brought by the Loomises. This timely appeal followed. On appeal, the Loomises contend the exclusion of the compression tests on the ground they were not conducted under conditions substantially similar to thos e surrounding the accident improperly shifted the burden to them to exclude all possibilitie s of another cause of Flora's injuries.

-3-II

We review the district court's grant of summary judgment de novo. Stein v. Chase Home Finance, LLC , 662 F.3d 976, 979 (8th Cir. 2011). We review the district court's exclusion of expert tes timony for an abuse of discretion. Sappington v. Skyjack, Inc. , 512 F.3d 440, 448 (8th Cir. 2008).

The Loomises argue the district court abused its discretion when it excluded the compression tests on the ground they were not were not c onducted under conditions substantially similar to those surrounding th e accident. In so arguing, however, the Loomises acknowledge Dr. Smith's comp ression tests were conducted in a manner which purposely "exaggerated to an extrem e" the conditions which would cause the ladder's legs to shift, and that Dr. Smith "endeavored to draw the bow string as taut as possible by compressing the ladder legs to a point where the back and front sections were as close as they could possibly be inorder to infuse the ladder with as much energy as possible." Appellant's Brief at 38. They also acknowledge Dr. Smith "very carefully climbed the ladder making sure that the rear feet did not break away (i.e., kick out) until he had reached the top of the ladder, a place where a climber would be in greatest danger." Id. at 39. "Then, at that point he intentionally shifted his (205- pound) weight backwards, simultaneously je rking on the ladder, doing so for no other purpose than to cause the ladder's legs to kick out." Id.

In contrast, Flora did not push the ladder across her driveway in an exaggerated manner. Nor did she tip the ladder back and forth in order to compress the legs together as close as possible. Flora tes tified she pushed the ladder across the driveway in a straight line. In addition, there wa s no evidence Flora initially climbed the ladder very carefully until she had reached the top. Nor did Flora intentionally shift her (140-pound) weight backwards while si multaneously jerking on the ladder.

-4-Under these circumstances, we conclude the district court did not abuse its discretion in excluding evidence of the compression tests on the grounds the tests were not conducted under conditions substantially similar to those surrounding the accident. "It is settled law that evidence of experimental tests is inadmissible absent a foundational showing that the tests we re conducted under cond itions substantially similar to those surrounding the incident atissue." Cowens v. Siemens-Elema AB , 837 F.2d 817, 820 (8th Cir. 1988); see also Dunn v. Nexgrill Indus., Inc. , 636 F.3d 1049, 1055 (8th Cir. 2011) (concluding a distri ct court did not abuse its discretion in excluding an expert's tests regarding an a llegedly defective gas grill where the expert had rigged the grill's propane hose in an " unnatural position" for the testing). Because the Loomises did not satisfy this foundational showing for Dr. Smith's compression tests, the district court was well within its discretion in excl uding evidence of the testing.

Furthermore, because the Loomises had no admissible expert testimony to support their various theories of products liab ility, we also conclude the district court did not err in granting Wing's motion for summary judgment.

III

We affirm the district court.

______________________________

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