The Honorable David S. Doty, United States District Judge for the District of 1 Minnesota, sitting by designation.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 98-1273

___________ Wesley Joseph Nelson, Jr.; Mildred * Anne Nelson, *

Plaintiffs-Appellants, * District Court for the

v. * Ford Motor Company, *

Defendant-Appellee. * * Appeal from the United States

* Western District of Missouri.

*

*

___________ Submitted: June 12, 1998. Filed: July 29, 1998

___________ Before WOLLMAN and MURPHY, Circuit Judges, and DOTY, District Judge

. 1

___________ MURPHY, District Judge.
Wes ley and Mildred Nelson appeal from the judgment in favor of Ford Moto r Company and the denial of their motion for a new trial in this products liability case

. After Wesley was injured while using the scissor jack provided with his 1991 Lincoln Town Car, the Nelsons sued Ford f or a defective product and the failure to warn. TheyThe Honorable Gary A. Fenner, United States District Judge for the Wester n 2 District of Missouri. -2- argue that the district court erred in dismissing their failure to warn claim, in giving an 2 incorrect verdict director, and in making certain evidentiary rulings. We affirm. On February 5, 1995, Wesley Nelson wanted to change a flat tire on his Tow n Car which was parked in the garage. He took out the scissor jack provided with the car and used it to raise the wheel area. Instructions on how to operate the jack had bee n supplied in the owner’s manual which included a warning to disable the car’s ai r suspension system before using the jack. A similar warning was printed near the ai r suspension switch in the trunk, on the spare tire cover, a nd on the jack. Wesley testified that he knew how to operate a jack based on his experience and so he went forwar d without reading the instruct ions or disabling the air system. He positioned the jack “by feel” rather than by looking for the notch on the underbody which had been provided to guide the location of the jack. He t hen partially raised the jack before loosening the lug nuts, and the car began to fall back off the jack. The wheel well struck him on the right forearm, pushing him to the ground. He later developed physical symptoms which he attributed t o the incident, including a strained lower back, a bulging disc, a pinche d sciatic nerve, and an increase in blood pressure.

The Nelso ns alleged that the jack was defective in that it could not support th e weight of the car and that Ford failed to warn adequately of the need to disable the air suspension system prior to jacking the car. The district court dismissed the failure t o warn claim bef

ore the case went to the jury on the ground that the Nelsons had no t produced sufficient evidence to support a verdict in their favor. The claim that the jack
was defe ctive was submitted to the jury which found in favor of Ford. The Nelson s moved for a new trial, raising ess entially the same points as on this appeal. The district court considered all the points raised in its detailed order denying the motion.-3-

The Nelsons argue that the district court erred by exclu ding their expert testimony on the adequacy of the warnings Ford provided and by dismissing their failure to warn claim. Since the Nelsons’ expert did not express an opinion on the adequacy of th e warnin gs in his deposition or in the report required under Fed. R. Civ. P. 26(a)(2), h e was not permitted to offer such an opinion at tr ial. Fed. R. Civ. P. 37(c)(1). The record also indicates that the expert admitted that he had not talked w ith Wesley Nelson or read his deposition, had not examined the Nelson car or photographs of it or other Tow n Cars, w as unfamiliar with the content of the warnings provided by Ford, and had no t designed warnings or referred to any authorities on th e adequacy of warnings. Since the Nelsons failed to produce any admissible evidence to support the failure to warn claim, its dism issal was appropriate. Pestel v. Vermeer Mfg. Co. , 64 F.3d 382, 383-84 (8th Cir. 1995) Moreover, Wesley Nelson testified that he had not consulted the existin g warnin gs because he thought he knew how to use the jack properly, and it was no t shownthat modified or additional warnings would likely have prevented the accident. Klugesherz v. American Honda Motor Co., Inc. , 929 S.W.2d 811, 814 (Mo. App. E.D. 1996). The Nelsons also claim the district court erred by using Ford’s verdict directing jury instruction. The challenged instruction permitted the jury to consider certai n evidence on the issue of comparative fault, including Wesley’s failure to disable the air suspension system and loosen the lug nuts before jackin g up the car. The Nelsons argue that there was no evidence that those acts ca used the jack to fail, but they did not object to the verdict director at trial. The district court instructed on comparative fault onl y after the Nelsons refused to agree to Ford’s request to withdraw the issue. The Nelsons neither made a timely objection nor proposed an alternative instr uction, and we therefore review only for plain error. Fed. R. Civ. P. 51; Kehoe v. Anheuser-Busch, Inc. , 96 F.3d 1095, 1104 (8th Cir. 1996). After reviewi ng the record and considering the instructions as a whole, we find no plain error.-4-

Among the evidentia

ry issues the Nelsons raise is their argument that the district
co urt erred in admitting expert testimony offered by Ford. The Nelsons conten d evidence of tests done on an exemplar jack should have been excluded s ince its chemical composition wa s not identical to that of the jack used by Wesley Nelson. There wa s evidence that the higher carbon content of the exemplar jack did not cause a significant difference in

strength compared to the Nelson jack, and the district court did not abuse its disc retion in admitting evidence of the tests with the exemplar jack. The Nelson s assert th at the district court also erred by admitting testimony that there were n o scrat ches in the notch where the jack was to be placed and that there was a tear elsewhere on the underbody of the car, indicating that the jack had been mispositioned. They contend that Ford’s expert conceded in his deposition that it was not possible to state w ith absolute certainty that the jack had been incorrectly placed, but an y uncertainty in the expert’s opinion was a factor the jury could consider in weighing his testimony. Orth v. Emerson Elec. Co., White-Rogers Di vision , 980 F.2d 632, 637 (10th Cir. 199 2). His testimony that the absence of markings in the notch where the jac k would have properly fit was not inconsistent with other evidence at trial, and the district court did not abuse its discretion by admitting it.

The Nelsons also argue that the district court erred in preventing them fro m de posing and offering testimony by witnesses with knowledge of other scissor jac k failu res. The Nelsons were not diligent in obtaining this testimony, and they failed t o de pose the potential witnesses within the original twelve month discovery period o r during an eighty day extension granted by the c ourt. Instead, they sought to depose two witnesses only weeks before trial and six months after the close of discovery. The court declined t o permit the depositions at that stage and excluded the testimony of tw o wi tnesses who had not been deposed but were called at the time of trial. One of these witnesses would have described how his jack failed when a screw rod pushed out of it, and the court concluded that this incident was not sufficiently similar to the Nelso n experience to have probative value. The other witness was prepared to testify his jack had collapsed when he removed the spare tire while the jack was already in place. The-5-

distri ct court did not abuse its discretion in determining that the probative value of this single incident would have been outweighed by its prejudicial impact. Drabik v

. Stanley-Bostitch, Inc. , 997 F.2d 496, 508-09 (8th Cir. 1993).

Aftert horoughly reviewing the record, we find no error by the district court i n dismissi ng the Nelson’s failure to warn claim, in its jury instructions, or in th e evidentiary rulings objected to by the Nelsons. The judgment of the district court i s affirmed. A true copy.

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