Miller v. Baker Implement Co., No. 04-3419.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtMurphy
Citation439 F.3d 407
PartiesGordon E. MILLER, Jr., Plaintiff—Appellant, v. BAKER IMPLEMENT COMPANY, (Originally sued as Baker Implements Corporation); CNH America LLC, formerly sued as Case Corporation and as Case LLC; Walter Kidde Portable Equipment, Inc.; Kidde, Inc., Defendants—Appellees.
Decision Date01 March 2006
Docket NumberNo. 04-3419.

Page 407

439 F.3d 407
Gordon E. MILLER, Jr., Plaintiff—Appellant,
v.
BAKER IMPLEMENT COMPANY, (Originally sued as Baker Implements Corporation); CNH America LLC, formerly sued as Case Corporation and as Case LLC; Walter Kidde Portable Equipment, Inc.; Kidde, Inc., Defendants—Appellees.
No. 04-3419.
United States Court of Appeals, Eighth Circuit.
Submitted: November 14, 2005.
Filed: March 1, 2006.

Page 408

David O. Kemp, argued, Dallas, TX (Jason M. Palculict, on the brief), for appellant.

Mark Mayfield, argued, Jonesboro, AR (J.V. Phelps, on the brief), for Appellee CNH America.

Page 409

Mark W. Hodge, argued, Little Rock, AR (Jim L. Julian, on the brief), for Appellee Bake Implement.

Janet Pulliam, argued, Little Rock, AR (Benjamin D. Brenner, on the brief), for Appellee Kidde.

Before MURPHY, MCMILLIAN1, and GRUENDER, Circuit Judges.

MURPHY, Circuit Judge.


Gordon E. Miller's cotton picker caught on fire and was destroyed when the machine's fire extinguishers failed to discharge. His insurer brought this subrogation action against the manufacturers of the cotton picker and the fire extinguishers as well as the distributor, for negligence, breach of warranty, strict liability, and violations of the Arkansas Deceptive Trade Practices Act. The district court2 granted summary judgment to the defendants after excluding Miller's proffered experts, and Miller appeals. We affirm.

I.

Miller purchased a new cotton picker in September 2002. The machine had been manufactured by Case LLC (now CNH America LLC) (CNH), and it was purchased from Baker Implement Co. (Baker). It came equipped with two attached fire extinguishers manufactured by Walter Kidde Portable Equipment, Inc. and Kidde, Inc. (collectively "Kidde").3 While he was operating the machine approximately two months later, he smelled a strange odor. Miller left the engine idling while he and one of his employees investigated the source of the odor. As his employee was inspecting the headers (the parts of the machine where the cotton head is separated from the rest of the plant), flames blew open a panel on one of them. Miller took one of the fire extinguishers attached to the picker and gave it to his employee who tried unsuccessfully to activate it. Miller then detached the second extinguisher, but it also failed to discharge and he called the local fire department. The entire cotton picker was destroyed before the fire could be extinguished.

Miller's insurer Shelter Mutual Insurance satisfied his claim for the picker and then brought this subrogation action in Miller's name against CNH, Baker, and Kidde under state tort law and an Arkansas statute. The asserted basis for his product liability claims were that the picker had not been equipped with an alternative fire suppression system and that its extinguishers had not functioned. Miller also alleged that the defendants had violated the Arkansas Deceptive Trade Practices Consumer Protection Act, Ark.Code § 4-88-107(a), by committing deceptive and unconscionable trade practices.

The parties held a teleconference on May 28, 2003 to schedule pretrial discovery; they filed their scheduling conference report on June 6, 2003. Initial disclosures were to be made by July 16, and they stipulated that Miller's initial expert reports would be due on January 15, 2004. Defendants had twenty one days from the date Miller submitted his experts to submit their reports, and Miller then had

Page 410

fifteen days to produce rebuttal reports. The parties also agreed that Miller's experts would be deposed first and that all discovery should be completed by June 2, 2004. The district court entered a final scheduling order on June 12, 2003, setting the discovery deadline for June 2, 2004, the motion deadline for June 18, and the trial date for August 23, 2004.

On January 19, 2004, after Miller's deadline for tendering his expert reports had passed, he submitted the report of William Ford to the defendants. Ford, a registered engineer employed by Accident Reconstruction — Technical Investigations, LLC, opined in what was labeled a preliminary report that the fire had started in the number two header and spread upward into the cab. Ford observed several broken spindles in that header and concluded that mechanical friction had caused the header to ignite. He reported that cotton, vegetable matter, lubricants, and plastic would have fueled the fire, that an onboard fire suppression system or operable fire extinguishers would have likely limited the damage, and that fires in cotton pickers are not uncommon and should be considered foreseeable.

Within the next weeks, CNH, Kidde, and Baker filed motions for summary judgment and to exclude Ford's testimony. They argued that Ford's preliminary report was untimely and that it failed to meet the expert testimony requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). They asserted that Ford's report had not shown that it was possible to equip this particular picker with an onboard fire suppression system, that operable fire extinguishers would have limited the damage, and that the extinguishers had malfunctioned. Defendants submitted their expert reports to Miller on February 5 and 6.

Miller submitted two other additional expert reports after the January 15 deadline and after the defendants had filed their summary judgment motions. One was the report of Jim Swain submitted on February 9. Swain, who was employed by Unified Investigations & Sciences as an origin and cause investigator, noted that the fire had spread rapidly and concluded that a broken spindle in the second header had caused the fire and that the failure of the extinguishers to discharge had contributed to the extensive damage. Miller then moved on February 17 to enlarge the time to allow the submission of both Ford and Swain's reports. The defendants submitted supplemental briefs objecting to the motion to enlarge and seeking to exclude Swain's testimony, arguing that the proposed testimony of both Ford and Swain failed to meet the requirements of Rule 702 and Daubert and that summary judgment remained appropriate.

Miller also moved on March 12 for the late designation of expert Ernest Barany, who had previously been employed as an engineer by Kidde and its successor for more than forty years. In support of his motion, Miller stated that Barany's report "provide[d] a complete statement of all opinions to be expressed by him and the basis and reasons therefore." In his report Barany opined that the fire would have caused minimum damage had the cotton picker been equipped with an automatic preengineered fire extinguishing system such as those available for combine harvesters and other pieces of large machinery. He concluded that the fire extinguishers had been defective and that cartridge operated extinguishers should have been installed instead of rechargeable stored pressure models. Defendants opposed the motion to designate Barany on the ground

Page 411

that it was untimely, coming nearly two months after Miller's January 15 deadline for submitting expert reports.

The district court ruled on defendants' motions on June 3, 2004, the day after discovery was to close. It granted the motion to exclude the testimony of Ford and Swain because it found their opinions unreliable and denied Miller's motion for the late designation of Barany because his report failed to meet the requirements of Rule 702 and Daubert. After pointing out that Miller was required to present expert testimony to establish that it would have been possible to equip Miller's picker with the proposed safety features and that they would have decreased the damage but that he had not done so, it granted summary judgment in favor of CNH and Baker. See Dancy v. Hyster Co., 127 F.3d 649, 653-54 (8th Cir.1997). It also granted summary judgment to Kidde after...

To continue reading

Request your trial
67 practice notes
  • Graham v. Dall. Area Rapid Transit, Civil Action No. 3:14–CV–4401–L
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 28, 2017
    ...to fulfill its unique gatekeeping function and ensure the integrity of the judicial process. See, e.g. , Miller v. Baker Implement Co. , 439 F.3d 407, 413 (8th Cir. 2006) ; O'Conner v. Commonwealth Edison Co. , 13 F.3d 1090, 1094 (7th Cir. 1994).10 In his Affidavit, Ortiz states he served a......
  • Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 13, 2007
    ...when the evidentiary record pertinent to the expert opinions is already well-developed. For example, in Miller v. Baker Implement Co., 439 F.3d 407 (8th Cir.2006), the court found that the trial judge did not abuse discretion in excluding the plaintiff's expert testimony without a Daubert h......
  • Edmonds v. State, No. 2004-CT-02081-SCT (Miss. 1/4/2007), No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 2007
    ...is not required when an expert witness proffers an "off-the-cuff" opinion like Dr. Hayne did. See, e.g., Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir. 2006) ("While Daubert hearings may be necessary in some cases, the basic requirement under the law is that the parties have an ......
  • Andrew v. Depani-Sparkes, Case Number: 114082
    • United States
    • Supreme Court of Oklahoma
    • May 16, 2017
    ...1456, 143 L.Ed.2d 542 (1999), citing O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.1994) ; Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir.2006) ("sua sponte consideration of the admissibility of expert testimony is permissible so long as the court has an adequate rec......
  • Request a trial to view additional results
67 cases
  • Graham v. Dall. Area Rapid Transit, Civil Action No. 3:14–CV–4401–L
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 28, 2017
    ...to fulfill its unique gatekeeping function and ensure the integrity of the judicial process. See, e.g. , Miller v. Baker Implement Co. , 439 F.3d 407, 413 (8th Cir. 2006) ; O'Conner v. Commonwealth Edison Co. , 13 F.3d 1090, 1094 (7th Cir. 1994).10 In his Affidavit, Ortiz states he served a......
  • Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 13, 2007
    ...when the evidentiary record pertinent to the expert opinions is already well-developed. For example, in Miller v. Baker Implement Co., 439 F.3d 407 (8th Cir.2006), the court found that the trial judge did not abuse discretion in excluding the plaintiff's expert testimony without a Daubert h......
  • Edmonds v. State, No. 2004-CT-02081-SCT (Miss. 1/4/2007), No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 2007
    ...is not required when an expert witness proffers an "off-the-cuff" opinion like Dr. Hayne did. See, e.g., Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir. 2006) ("While Daubert hearings may be necessary in some cases, the basic requirement under the law is that the parties have an ......
  • Andrew v. Depani-Sparkes, Case Number: 114082
    • United States
    • Supreme Court of Oklahoma
    • May 16, 2017
    ...1456, 143 L.Ed.2d 542 (1999), citing O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.1994) ; Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir.2006) ("sua sponte consideration of the admissibility of expert testimony is permissible so long as the court has an adequate rec......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT