Miller v. Baker Implement Co., 04-3419.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation439 F.3d 407
Docket NumberNo. 04-3419.,04-3419.
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

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.

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.


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 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 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 finding that Barany's affidavit failed to establish that a manufacturing defect rendered the extinguishers defective and failed to negate the likelihood that something other than a defect had caused the extinguishers to malfunction.

On the same day the district court ruled on defendants' motions and one day after the June 2, 2004 discovery deadline had expired, Miller filed a motion to compel defendants to respond to his discovery requests and to produce the names of corporate representatives for depositions. Two days earlier he had moved for a continuance of the discovery deadlines and trial date, arguing that defendants had failed to respond to his discovery requests and seeking permission to depose corporate representatives. Subsequent to its order granting summary judgment to the defendants, the district court denied Miller's motion to compel as moot.

After judgment was entered, Miller filed a motion to alter or amend judgment under Rule 59(e) or for relief under Rule 60(b), arguing that the district court had misapplied Daubert and that the court should have permitted the testimony of Ford, Swain, and Barany. He also claimed that discovery misconduct by the defendants had led to manifest injustice. Miller argued that defendants had concealed evidence of multidistrict product liability cases consolidated in the Eastern District of Arkansas which defendants should have revealed in answer to his discovery requests. In re: Case IH Cotton Picker Product Liability Litigation, MDL Docket 1221 (Hon. G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas presiding) (settled July 19, 2001). In support of his motion, Miller submitted an article by Dr. James Kolka about the multidistrict cases and the 1999 affidavit of Kevin O'Neill on behalf of plaintiffs in that litigation asserting that he had installed effective onboard suppression systems on cotton pickers. The district court denied Miller's motion, reasoning that Miller could have timely discovered evidence of the multidistrict litigation since it was a public...

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