USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2374
No. 93-1033
MARY HAYES, ADMINISTRATOR OF THE ESTATE OF
ROBERT HAYES, JR., AND ERIC HAYES,
Plaintiffs, Appellants,
v.
DOUGLAS DYNAMICS, INC.,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Boudin and Stahl, Circuit Judges,
______________
and Fuste,* District Judge.
______________
____________________
John Benjamin Carroll with whom Woodruff L. Carroll was on
_____________________
____________________
for appellant.

br

John L. Kerr
_____________
appellee.

with

whom

Whiting & Elinoff

___________________

was on

____________________
November 1, 1993
____________________
_____________________
*Of the District of Puerto Rico, sitting by designation.

brief

-22

FUSTE, District Judge.

FUSTE, District Judge.
______________
appeal

from

breach

of warranty action resulting from a car accident in which

Robert Hayes,

a grant

Jr., the

of summary

Appellants Mary and Eric Hayes

son of

judgment

Mary

in a

and brother

negligence and

of Eric,

was

killed.

The district court held that plaintiffs failed to adduce

adequate

evidence

to

show

that defendant's

product

proximate cause of the decedent's fatal injury.

was

the

We affirm.
affirm

I.
I.
Background
Background
__________
On January 30, 1988, Robert Hayes, Jr. and his
Eric were passengers
Robert, Jr. was

in the

sitting in

Eric was sitting

behind the

rear compartment of
the right rear

hit from behind

truck

to swerve

Tempo.

and

While the car

was

to make a left turn, it

was

by a Chevrolet pickup truck.

attempted

a Ford

passenger seat,

driver's seat.

stopped at an intersection, waiting

brother

and avoid

the

The driver of the

car.

The collision

pushed the car into oncoming traffic where it was hit in the left
front area by a van.

The car spun one-hundred and eighty degrees

before coming to rest.

head injury

Robert, Jr. died the following day from a

sustained in the accident.

blow to the back of

The cause of death was a

the head, behind the

right ear.

The

other

three passengers suffered minor injuries.

Exactly

which part

central issue in this

a

Western

Douglas

brand

Dynamics.

case.

snowplow

of the

truck hit

the Tempo

is a

The Chevrolet truck was fitted with

manufactured

The snowplow
-22

unit is

by

defendant-appellee

designed so

that the

frame, consisting of a metal hydraulic pump and motor unit with a

metal

lift channel, can remain

attached to the

the snowplow blade is removed.

truck

at the

time of the

the

truck.

The end

The blade was not attached to the

accident.

consists of a lift arm which

of

truck even when

Part of

the lift channel

protrudes outward from the front of

the

lift

arm

is a

U-shaped

plate

approximately 2 inches by 3 1/2 inches in dimension.

II.
II.
Theories of Recovery and Defense
Theories of Recovery and Defense
________________________________
Plaintiffs
federal

district

negligence

and

brought

a diversity

jurisdiction

court

alleging

breach

of

contending

that

defendant is

suit in

warranty1
liable

for

and

the

wrongful death of Robert, Jr. and the mental injuries suffered by

Eric

Hayes as a

injury.

result of seeing his

The plaintiffs'

brother sustain the fatal

theory is that the protruding

lift arm

of defendant's product caused the death of Robert, Jr., either by

directly striking his
piece of the

head, or by propelling forward

Tempo which then dealt the fatal

The plaintiffs also argue that the

the

truck altered

the dynamics

some metal

blow to his head.

presence of the plow frame on

of the

pickup, making

it more

dangerous in a collision.
In order to succeed
under

Massachusetts

law,

in a claim for breach

the

plaintiff

must

of warranty

show

that

the

____________________

1Under Massachusetts law, the theory of breach of an implied

warranty of merchantability is basically the same as strict
liability theory in tort. Wolfe v. Ford Motor Co., 386 Mass. 95,
_______________________
100, 434 N.E.2d 1008, 1011 (1982).
-33

defendant's

product

was

the

Colter v. Barber-Greene Co.,

___________________________
1312
378

proximate cause

of

403 Mass. 50, 61, 525

the

injury.

N.E.2d 1305,

(1988); Swartz v. General Motors Corp., 375 Mass. 628, 633,

______________________________
N.E.2d 61, 65 (1978).

A plaintiff

alleging that a product

was negligently designed can proceed by showing

either proximately

caused

or

enhanced

the

that the product

injuries

alleged.

Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 212, 596 N.E.2d
_________________________________
318, 323 (1992).
killed by a

Because it is undisputed that Robert, Jr. was

single blow to

the head, the

that the plow frame either caused

plaintiffs must

the injury or that the

show

injury

would not have been fatal

the truck.

If

if the frame had not been

the plaintiffs cannot

was the proximate cause

attached to

prove that the plow

of the fatal injury

frame

itself, or that

it

caused an enhancement of a lesser injury, then the defendants are

entitled to summary judgment as a matter of law.

that

Proximate cause

is a

precipitating

object

the

sequence,

unbroken

without which the

Ludwig,
______

by any

need

251,

not prove

likelihood

defendant's

that

action

cause,

"in

produces an

254,

198

the exact

N.E. 159,

161

cause

of the

continuous
event

the

accident

Corp., 416 Mass 83, 616 N.E.2d 1081, 1084

_____

(1935).

accident or

resulted

from

is a

the

Enrich v. Windmere
__________________

(1993).

Therefore, in

their claims, the plaintiffs here

-44

and

Wallace v.
___________

but he must show that there

negligence than that it did not.

order to proceed with

which requires

not have occurred."

disprove every possible cause,

greater

or

new

event would

292 Mass.

plaintiff

legal definition

must be

able to show that

arm

there is a

greater probability that the

caused the death of Robert, Jr.

lift

than that some other object

in the crash was the agent of injury.

Defendant

alleges

that

the

plaintiffs is insufficient to establish

evidence

offered

that there is a

by

genuine

issue of fact as to whether the snowplow, directly or indirectly,

caused

the

filed

injury to

a motion

Robert, Jr.

for summary

Accordingly,

judgment.

filed a cross-motion seeking similar

granted

the

defendant's

motion

Plaintiffs

relief.

for

the defendant

opposed and

The district court

summary

judgment.

The

plaintiffs appeal the grant of summary judgment and the denial of

their

cross-motion.

Plaintiffs

also

challenge

several

prejudgment rulings of the district court.2

III.
III.
Summary Judgment and Standard of Review
Summary Judgment and Standard of Review
_______________________________________
The
pleadings
is a

purpose

of summary

and to assess the proof

genuine need for trial".

F.2d 46, 50 (1st Cir. 1990)

Committee's Note).

judgment

is

"to pierce

the

in order to see whether there

Garside v. Osco Drug, Inc., 895

___________________________

(quoting Fed. R. Civ. P. 56 Advisory

Therefore,

if

the pleadings,

depositions,

answers to interrogatories, admissions and any affidavits on file

show

that there is no genuine issue

the moving

party is

Fed. R. Civ. P. 56(c).

____________________

as to a material fact, then

entitled to judgment

as a

matter of

law.

2Because we affirm the grant of summary judgment to the

defendant, we do not reach the other issues raised on appeal by
the plaintiffs.
-55

Where, as

here, the

moving

party does

not have

the

burden of proof at trial, that party must make a showing that the
evidence is

insufficient to support the

Celotex Corp. v. Catrett, 477

_________________________
showing

has been

establish the

made,

it

existence of

material fact.

nonmoving party's case.

U.S. 317, 325

is up

to

a genuine

the

(1986).

Once this

nonmoving party

disagreement

as to

In this context, "genuine" means

that "the evidence is such that a reasonable jury could

for the nonmoving party",

which "might affect the

law."

and a "material

outcome of the suit under

return a

fact" is one

the governing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

_______________________________
Appellate

plenary.
1990).

some

United States v. One Parcel of Real Property, 960

____________________________________________

F.2d 200, 204 (1st Cir. 1992).

verdict

to

review

of

summary

Griggs-Ryan v. Smith, 904

_____________________
In

applying this

judgment
F.2d

standard, we view

decisions

112, 115

is

(1st Cir.

the record

in the

light most favorable to the nonmovants, the plaintiffs.

Texas, N.A. v. A.J. Warehouse, Inc., 968 F.2d 94,
_____________________________________

Bank One
________

97 (1st Cir.

1992).
IV.
IV.
Discussion
Discussion
__________

In support of their claims, the plaintiffs offer direct

evidence

in

photographs

the

form

of

the

depositions

of

witnesses

and

from the scene, as well as the affidavits of several

experts.3
____________________

3Following the order of the district court granting summary

judgment, the plaintiff moved to submit further evidence under
Fed. R. Civ. Pro. 59(e) and 60(b)(6).
The denial of these
-66

A.
A.

Direct Evidence
Direct Evidence
_______________
1.
1.

Paul Porter
Paul Porter
___________
Paul Porter, a

police officer who arrived

immediately

after the accident,

the vehicles,

testified that based

he believed that the

on his examination

front of the truck,

emphasis on the left front quarter, struck the right

Tempo.

Porter stated that he saw

Porter testified that no blood or hair

that when he arrived

was still

in the

car.

pinned under a piece

rear of the

plow frame did all of

samples were found on the plow frame itself.

stated

with an

"the plow frame and front end

as one entity," and did not think that the

the damage to the Tempo.

of

at the accident

The officer observed

of the Tempo, a

In addition, Porter

scene, Robert, Jr.

that the

boy was

metal pillar from

between

____________________

motions is also challenged on appeal. Decisions of the district

court under these rules are reviewed for abuse of discretion.
Valley Citizens for a Safe Environment v. Aldridge, 969 F.2d
______________________________________________________
1315, 1317 (1st Cir. 1992) (Rule 60(b)); Mariani-Giron v.
_________________
Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991) (Rule 59(e)). A Rule
____________
60(b)(6) motion will be granted by a district court only if it
finds "exceptional" circumstances that justify "extraordinary"
relief. United States v. One Urban Lot, 882 F.2d 582, 585 (1st
_______________________________
Cir. 1989).
Rule 50(e) motions are granted for reasons such as
the commission by the trial court of a manifest error of law or
fact, the discovery of new evidence, or an intervening change in
the
law.
National
Metal
Finishing
Co.
v.
_____________________________________________
BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 124 n.2 (1st
__________________________________
Cir. 1990)(citations omitted).
Plaintiffs presented no reasons
to the district court which would warrant relief under 60(b) or
59(e).
The judge noted that none of the information presented
was new, nor was it unavailable when the summary judgment was
filed.
In addition, he stated that the new evidence would not
have changed his prior analysis.
We are unable to find any
reasons in the record to justify the submission of further
evidence, and plaintiffs have not advanced any.
Therefore we
find that it was not an abuse of discretion for the court to deny
the plaintiff's motions, and we will not consider the additional
affidavits on appeal.

-77

the side rear window and the rear window.

The pillar was leaning

against the head of Robert, Jr., behind his right ear.

Because

Porter

did not

distinguish between

frame and the front of the truck, his testimony does

the plow

not help to

establish that the snowplow frame, directly or indirectly, caused

the death
blood

of Robert, Jr.

Porter's testimony about

or hair on the plow frame

the lack of

tends to refute the theory that

the lift arm itself came into contact with the victim's head.
addition, the

officer's observation of the

against the decedent's head suggests

In

metal pillar leaning

one alternative explanation

for how Robert, Jr. may have received the head injury.
2.
2.

William Richardson
William Richardson
__________________
William Richardson,

that he hit the car

to

avoid the

the driver

of

the truck,

off-center because he swerved in an

accident.

He

testified

stated

attempt

that approximately

the

center of the front end of his truck hit the right rear passenger
side of the Tempo, but he was unable
itself impacted the car.

to see whether the lift arm

Richardson's testimony establishes that

the right rear passenger area of

the collision.

the Tempo received the brunt of

Due to this, it is understandable that the injury

to Robert, Jr. was more severe than that to any other occupant of
the car.

Because

lift arm during

establish

Richardson could not see what happened

the collision,

causal link

his testimony does

between

defendant's

to the

not help

product and

to

the

injury to the victim.

3.
3.

Police Photographs
Police Photographs
__________________
-88

The police photographs offered by the plaintiffs depict

a mangled mass of metal
Tempo,

and some

in the right rear passenger area

damage to

the left

pictures

show that the damage to the

was

more extensive

far

region.
that

the

The

than that

photographs do

defendant's

suggest a number

product

front of

the truck.

The

right rear part of the car

sustained

not further the

caused the

by the

left rear

plaintiffs' claim

injury,

of different possibilities for what

hit Robert, Jr. on the head.

of the

but

rather

might have

Wolf
firm, was
The

Technical

Services,

employed to analyze

consultants concluded

an

engineering

the photographs of

that

the rear

forward approximately 11.5 inches

seat

consulting

the accident.
back was

on the left end and

moved

24 inches

on the right end, and the rear bumper was displaced approximately
15 inches at
side.
the

the left end

and at least

30 inches on

the right

These results are consistent with the other evidence that

right rear

damage.

part

of the

However, as the

does not establish

Tempo sustained

the brunt

district court pointed

that the plow frame caused the

of the

out, the study

seat back and

fender to move forward.

The plaintiffs
among

claim that

other damage, a wedge shaped mark

Tempo.

If shown,

mechanism played a
district

this might help

court, however, no such

-99

Expert Witnesses
Expert Witnesses
________________

caused,

on the trunk lid of the

to establish

major role in the accident.

photographs.

B.
B.

the lift mechanism

mark is visible

that the

lift

As noted by the

in the police

The plaintiffs have produced the affidavits of a number

of

expert

witnesses

Evidence 705, we

and

argue

that,

must accept the

While nonmovants may rely

under

Federal Rule

of

conclusions of these

experts.

on the affidavits of experts

in order

to defeat a motion for summary judgment, such evidence must still

meet the

standards of Rule 56.

that the nonmoving

there is a
Federal

P. 56(e) requires

party "set forth specific facts

genuine issue

Rule of

Fed. R. Civ.

for trial."

Evidence 705,

Plaintiff's reliance

which allows

an expert

opinion testimony, together with the supporting

disclosure

of

the underlying

facts

or

data, is

cross-examination provides an opportunity

on

to give

reasons, without

This rule was designed to apply in the context of

underlying

showing that

inapposite.4

a trial, where

to probe the

expert's

facts and data and to test the conclusions reached by

the expert.
Although expert testimony may be
that of fact witnesses, in
judgment

an

expert

order to defeat a motion

opinion

must

be

assertion about ultimate legal issues.

F.2d 13,

n.16 (1st

more inferential than

Cir. 1992).

more

than

for summary

a conclusory

Bowen v. Manchester, 966

___________________

See also
________

Moody v. Boston and

____________________

____________________
4Fed. R. Evid. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without
prior disclosure of the underlying facts or
data, unless the court requires otherwise.
The expert may in any event be required to
disclose the underlying facts or data on
cross-examination.

-1010

Maine Corp., 921 F.2d

____________
Motors Corp.,
_____________

690

evidentiary rules
intended

1, 5 (1st

F. Supp.

Cir. 1990); Sultis v. General

__________________

100,

make summary

party has produced

an expert

not

to support its

willing to

1988).

666, 673

(D.C. Cir.

allow the

reliance

on a

time that

a conflict of fact

is based on expert

with

other

judgment,

expert

submitted

affidavits

Merit
_____

569 F.2d

become a free pass to

evidence

whenever a

position."

ultimate expert conclusion to

all

The

trial were "not

judgment impossible

Motors, Inc. v. Chrysler Corp.,

________________________________
We are

(D. Mass.

regarding expert testimony at

. . . to

1977).

103

must

on
be

trial every

testimony.

motion

reviewed

bare

As

for summary
in

light

of

F.R.Civ.P. 56.

Where an expert presents "nothing but conclusions -- no

facts,

no

hypotheses

hint

of

considered

an inferential
and

process,

rejected", such

insufficient to defeat a motion for

no

discussion of

testimony

summary judgment.

will

be

Mid-State
_________

Fertilizer v. Exchange Natl. Bank, 877 F.2d 1333, 1339 (7th Cir.
__________________________________
1989).

See also Evers v. General Motors, 770 F.2d 984, 986 (11th
________ _______________________

Cir. 1985);
Cir.

Bulthuis v. Rexall Corp, 789 F.2d 1315,

________________________

1985).

Although

an

details about all of the raw

or about

scientific or

expert

affidavit need

confusing to a

lay person, it must at

basis

process of

and the

not

data used to produce a

other specialized

1318 (9th

conclusion,

input which might

be

least include the factual

reasoning which makes

the conclusion

viable in order to defeat a motion for summary judgment.

that each of

include

the expert affidavits failed to

We find

contain sufficient

-1111

support for the

conclusion that

the injury to

Robert, Jr.

was

caused by the defendant's product.

1.
1.

Nicholas Miller
Nicholas Miller
_______________
Nicholas

used

the

hospital

police
and

Miller, an expert in accident reconstruction,

report,

medical

autopsy

records,

report,

depositions,

death

certificate,

pictures

of

the

accident

scene

and vehicles,

and the

study conducted

by Wolf

Technical Services, in order to reconstruct the accident.

Miller

also utilized similar vehicles to simulate the relative positions

of the truck and the Tempo
computer

graphic

before impact, and conducted a

reenactment.

Based on

this

video

input,

Miller

concluded that the lift mechanism caused Robert, Jr.'s injuries.

Miller
metal pushed

opines that

forward

by the

the deceased
lift

explains his reasoning as follows:

arm

was struck

of the

snowplow.

was no other object

near the

decedent's

caused the injury.

of similar shape,

head; (3)

He

(1) the fatal blow was by an

object of the same size, shape and rigidity as the

there

by sheet

therefore,

lift arm; (2)

size, and rigidity

defendant's

Even assuming that the victim

product

was killed by

an object of the dimensions and shape of the lift arm ("rigidity"

was never further discussed by any of the experts), Miller's bald

assertion

that

no other

part

of

the car

or

particular shape is difficult to accept, given

truck

had that

that Miller never

had the opportunity to examine the Tempo after the accident.

photographs of the
clear to

Tempo after

the crash

establish the shape and

-1212

are not

size of each of

The

sufficiently

the pieces of

the

wreck.

Miller

possibilities

as to

provides no factual

claims
what

to

have

could have

details about

eliminated
struck

all

other

Robert, Jr.,

this analysis.

He fails

but

to

even mention or discuss the only object which anyone saw near the
victim's head, the metal window support which Porter observed.
In his second
the

exemplar vehicles.

pickup

truck with a

Ford Tempo,

supplemental affidavit, Miller discusses

Starting

snowplow frame attached,

Miller drew a
up if

it proceeded directly

concludes

that "it is apparent

mechanism attached

right-rear

of a Chevrolet

situated behind a

line representing where

would end

lift

with a picture

to

seat at head height

into the Tempo.

as an observable

the truck

the snowplow

fact, that the

reached and

and would have

Miller

invaded the

struck the right

rear passenger."
Miller provides

no supporting

data to

establish that

the exemplar vehicles were in the same positions relative to each

other as the actual truck

and Tempo had been at the

time of the

accident. Even assuming that the exemplar vehicles were correctly

positioned, these pictures do not show what actually happened
the Tempo.
if the truck

The pictures of the exemplar vehicles show

only that

were to penetrate directly through the trunk of the

car, in a straight
the

to

plow mechanism,

line, then the front of the

would end

up in

the rear

truck, including

passenger area.

This establishes nothing more than that it is possible, given the

relative height of

the vehicles,

Miller provides no facts

that the

plow caused

from which we can reach

injury.

the conclusion

-1313

that it

is

directly,

more probable
without

than

not that

any resistance,

into

the

plow frame

the

car in

tore

linear

fashion and reached the passenger's head.

2.
2.

Norris Shoemaker
Norris Shoemaker
________________
Norris

Shoemaker,

safety, reviewed the same

In

his initial

about

consultant

in

transportation

documents and pictures as Mr.

affidavit, Shoemaker

made

Miller.

general observations

the design of the snowplow, asserting that the defendant's

product "changes

the crush

and concentrates the

projecting

in

configuration"
inflicted
of

what

concerned.

characteristics of the

energy of

front

of

the

the collision in
vehicle

in

pickup truck
a narrow

narrow

area

spearlike

and, as a result, the snowplow frame "can and has

severe head and other injuries".

actually happened

in the

Although in his

with which

we are

supplemental affidavit

Shoemaker

about the accident at

hand, they

to establish a causal connection.

Shoemaker

makes more specific assertions

are not sufficient

accident

This is not evidence

asserts

that "a

comparison

damage photographs

of the

additional facts,

photographs does

vehicles and

clearly show a penetration to

right rear passenger seat by

without

exemplar

and beyond the

the Defendant's product."

a

comparison of

not sustain

such a

the

these

conclusion.

However,

two sets
The

of

exemplar

pictures show only where the truck may have struck the Tempo, and
the

damage pictures

show

that the

are not

lift arm or

sufficiently clear or
other parts

of the

detailed to

plow frame ever

penetrated into the right rear passenger seat.

-1414

3.
3.

Gerald Feigin
Gerald Feigin
_____________
Dr. Gerald

Feigin, the medical examiner

the

autopsy on the deceased,

his

experience,

examination

the

autopsy

who performed

submitted an affidavit.
report

and

pictures,

Based on
and

an

of a Western lift arm, Feigin concluded that a blunt

object shaped like a lift armcaused the fatal blow to Robert, Jr.
Feigin's

affidavit

performed the original autopsy.

was

written four

years

At the autopsy, Feigin

one centimeter contusion on the head.

after he

noted a

However, in his affidavit,

he suggests that

conformity with the

size of

the terminus of the lift arm, which is 2 inches by 3 1/2

inches.

This creates a

the bruise was in

factual discrepancy as to the

bruise.

In

pictures

attached to the

conclusion.

addition, as

They

do

the district

court pointed

autopsy do little
not

clearly

actual size of the

show

out, the

to support Feigin's
a

U-shaped

conforming to the reported size and shape of the lift arm.

bruise

It is

arguable that these concerns go to the weight of the evidence and

the credibility of

the witness,

sufficient

basis,

on

evidence.

But even if we accept

on the

summary

decedent was the same

would result if a

and would not

judgment,

for

themselves be

disregarding the

the conclusion that the bruise

size and shape as

an injury which

"blunt object shaped like a Western

lift arm"

struck a human head, this does little to establish that, in

particular case, the lift

arm actually did strike Robert

Jr.
4.
4.

Dr. Ommaya
Dr. Ommaya
__________
-1515

this

Hayes,

Plaintiffs also attached the affidavit of Dr. Ayub Khan

Ommaya,

accident

neurosurgeon.
photographs,

Ommaya

medical

examined

the police

records, autopsy

report,

death

of the

other

certificate, witness

depositions,

experts.

this evidence, he concluded that

Based upon

injury was caused by

other
the

and affidavits

lift mechanism and [the]

fits the penetration path

from

other

passengers

in

the path of

Ommaya added

the head injury and that his

the dynamics

including the acceleration forces.

of the

accident,

Ommaya asserted that Robert,

minor injuries similar to those

the car

if

among

of the bruising

of the lift mechanism".

was inevitable

Jr. would have sustained

was seated in

type and location

there was no other source for

conclusion

the fatal

the snowplow lift mechanism because,

unnamed reasons, "the deceased

that

report,

the

lift

of the

mechanism was

not

present.
The

difficulty with

Dr. Ommaya's

opinion is

begins with one assumption, that the deceased was in

the

that he

the path of

lift mechanism; adds a further assumption, that there was no

other

object which could have caused the injury sustained by the

deceased, and then

injury.

As we

establish that

concludes that the lift

have seen,

there are

not

the lift mechanism entered

mechanism caused the

sufficient facts

to

the compartment where

Robert, Jr. was sitting, and Ommaya does not offer any additional
facts.

The assumption that there was

disregards the presence of all

truck,

in particular the piece

no other source of injury

other parts of the Tempo and

of the car
-16-

the

which Officer Porter

16

testified he found lying against the boy's head.

discuss

the

"dynamics of

the

accident"

Ommaya fails to

or the

"acceleration

forces", which he claims lend support to his conclusion.

Ommaya
minor

asserts that Robert,

injuries similar to those

Jr. would

of the other

car if

the lift mechanism was not present.

police

photographs that the primary

the

right

rear area

of

the

passengers in the

It is clear from the

damage to the

car.

The

driver

testified that the

right rear passenger area

of the collision.

Regardless

frame,

have sustained

of the presence

Tempo was in
of the

truck

received the brunt

of the

snowplow

therefore, it is likely that the passenger seated in that

compartment would have been more severely injured than any of the
other passengers.
V.
V.
Conclusion
Conclusion
__________
We hold that
fact

as to

whether the

there is no
defendant's

genuine dispute of
product was

cause of the fatal injury to Robert Hayes, Jr.

material

the proximate

The evidence does

not establish

that it is

more probable

than not that

the plow

frame came into contact, directly or indirectly, with the victim.

Given
more

the available facts, the

than

unsubstantiated

experts were able

conclusions.

correctly granted summary judgment.

-1717

The

Affirmed.
Affirmed
________

to provide no
district

court