Thomas Dunn, et al v. Nexgrill Industries, Inc.

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, DAVID R. HANSEN and DIANA E. MURPHY. David R. Hansen, Authoring Judge (PUBLISHED) [3759391] [09-2722]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 09-2722
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Thomas Dunn; Thelma Dunn,

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Appellants,
v.
Nexgrill Industries, Inc.,
Appellee.

Appeal from the United States
District Court for the
Eastern District of Missouri.
[PUBLISHED]

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Submitted: April 12, 2010
Filed: February 25, 2011
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Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
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HANSEN, Circuit Judge.
Following a fire at the residence of Thomas and Thelma Dunn (the Dunns), the
Dunns filed a complaint against Nexgrill Industries, Inc. (Nexgrill), the manufacturer
of the propane fired gas grill they used on the night of the fire, claiming that the fire
was caused by a design defect in the cabinet of the grill which allowed a rubber
regulator hose to come in contact with a heated grease tray, then to melt and become
breached, thereby allowing propane vapors to escape and become ignited by the grill's
burners. As part of their case, the Dunns wanted to establish that the grill was
defective by presenting the expert testimony of Randy Bicknese, including evidence

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of certain tests he had performed. Nexgrill filed a motion to bar the testimony and
opinions of Bicknese (Bicknese evidence), which the district court granted. Nexgrill
then filed a motion for summary judgment, which the district court also granted. The
Dunns appeal, arguing that the district court abused its discretion in excluding the
expert testimony of Bicknese and erred in granting the motion for summary judgment.
After a careful review of the record, we affirm the district court's judgment.
I.
In May 2006, the Dunns purchased a new Jenn-Air gas grill (the grill) that was
designed, manufactured, and sold by Nexgrill. The grill produces heat for cooking by
the combustion of propane vapors. A portable replaceable cylinder shaped tank
located in the bottom of the grill cabinet stores liquid propane under pressure until the
propane is delivered to the grill's manifold through a regulator and hose assembly.
The propane tank is equipped with a pressure relief valve which allows propane to be
released in substantial quantity from the tank when the tank's internal pressure rises
to the point where the tank might explode. In normal operation, propane vapors are
delivered to the three main burners via control valves located on the front panel. A
heat shield is located above the propane tank to protect the tank from the heat
emanating during normal cooking from the bottom of the burners and from the grease
tray located underneath the burners.
On the evening of August 24, 2006, Mrs. Dunn used the grill to cook dinner for
herself, her husband, their daughter, and their granddaughter. She testified that she
started the grill around 6:45 p.m. that evening, stopped grilling around 7:00 p.m., and
at that time turned the burner control knobs to the "off" position on the grill. Mrs.
Dunn then testified that her daughter and granddaughter left at approximately 8:30
that evening and the Dunns went to bed at approximately 8:45 p.m. She then awoke
to "glass popping and breaking and trees popping and cracking" and "a big ball of

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orange." (J.A. at 493.) Mrs. Dunn then called 911 and escaped their home. The
record indicates that the fire alarm was activated at 9:42 p.m.
Following the fire, Richard Hewitt, a senior investigator from Grinnell Mutual
Reinsurance Company (Grinnell), the Dunns' insurer, carried out an initial
investigation of the fire on August 28, 2006. Hewitt examined the fire scene a second
time on October 3, 2006, and was accompanied by Dr. Lloyd Brown, an electrical
engineer retained by Grinnell; Alan Dudden, an engineer from Nexgrill; Randy
Bicknese, of Schaeffer Engineering, Inc., a mechanical engineer retained by the
propane cylinder's supplier; and Gary Railing, an insurance adjustor.
According to Hewitt's report, at the time of the fire, the grill had been located
on a deck near the exterior west wall of the Dunns' home. There was no fire, heat, or
smoke damage on the exterior south, east, and north sides of the home. The exterior
west side, however, "received a severe amount of fire and heat damage." (J.A. at 315.)
Hewitt reported that the other heat producing devices located on the outside of the
home and in the garage, basement, and kitchen/dining area were eliminated as possible
causes of the fire. In his report, Hewitt stated that "[t]he burn patterns exhibited to the
grill, structure, and deck along with the fire movement and intensity patterns all
indicate that the fire originated in the bottom cabinet located beneath the burners of
the grill" and concluded that "[t]he fire was most probably caused from fugitive
[liquid propane] gas escaping from the grill[']s fuel delivery system located in the
lower or bottom cabinet of the grill." (Id. at 316.) Brown agreed with Hewitt's
conclusion that the fire originated from inside the grill.
During the October 3 investigation, Bicknese observed that all of the grill's
burner control valves were in the off position, the propane tank was empty, and the
tank had a pressure relief valve. Bicknese theorized that the pressure relief valve was
triggered during the fire and released a substantial amount of propane gas, which
contributed to the magnitude of fire damage to the exterior west wall of the home and
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its deck. Agreeing with Hewitt and Brown, Bicknese determined that the fire
originated inside the lower compartment of the grill. During his observation, he
hypothesized that "it [was] probable that the pressure relief valve in the cylinder's
service valve operated during the fire," and "the release of propane from the cylinder's
pressure relief valve contributed to the magnitude of fire damage to the west exterior
wall and wood deck of the structure." (Id. at 742.)
Bicknese's services were then retained by the Dunns' counsel "to perform
additional analysis and testing and to render professional opinions regarding what
role, if any, the Jenn-Air grill had in the cause of the fire." (Id. at 743.) The model
of Jenn-Air grill the Dunns had used was no longer available in retail stores, so
Bicknese purchased a used grill (test grill) to perform certain tests. According to
Bicknese's report, the test grill's original owner stated that "the [test] grill was in its
original configuration and no repairs had been made, other than normal cleaning, since
it was purchased." (Id.) Bicknese stated in his affidavit that the testing was done
to establish certain scientific principles: (1) to determine whether or not
the propane hose can deteriorate sufficiently to leak when in contact with
the grease tray during grill operation; (2) to determine if propane leaking
from the deteriorated hose can be ignited by the operating burner; (3) to
determine if a propane hose fire in the cabinet can be sustained after the
burner controls are turned off; (4) to determine if a propane hose fire in
the cabinet is readily detectable from outside the grill with the grill lid
open and the cabinet door closed; (5) to document the operating
characteristics of the grill's propane distributing system; (6) to determine
the consumption rate of the propane hose as a result of the ignited leak.
(Id. at 737.)
While installing a propane tank in the test grill's cabinet (in the position
indicated on the sliding tray that supports the tank located in the very bottom of the
grill), Bicknese observed that on the test grill, the propane hose between the regulator
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and the manifold that connects the two devices could come into contact with the
grease tray as the propane tank was pushed into its stowed position within the grill
cabinet, and that the grill had no retainer clip or other device to prevent the hose from
coming into contact with the grease tray. He attributed the hose's tendency to ride up
and touch the grease tray to a "slight curl" in the hose that occurred when the
regulator, to which the hose is attached, was attached to the tank. He fired up the
burners and measured the temperature of the grease tray (located beneath the burners
but above the propane tank, regulator, and hoses). He observed some melting of the
regulator's hose where it was touching the grease tray. Based on safety concerns,
Bicknese then removed the propane tank from the grill, leaving the regulator and its
hose assembly in the cabinet. He attached an extension hose between the removed
propane tank and the regulator's intake connector and then intentionally placed the
hose connecting the regulator with the manifold up against the grease tray by using
a nylon tie-down to secure the hose to an existing metal horizontal "barrier bar"
located within the cabinet. Bicknese explained that because he had removed the
propane tank, he secured the propane hose to the horizontal bar barrier at a location
consistent with where it would have been if the propane regulator were attached to a
properly oriented and stowed propane tank and that the propane hose as secured by
the tie-down was in a position consistent with where it would naturally come into
contact with the grease tray as a result of sliding the propane tank to the indicated
stowed position within the grill cabinet.
During his testing, Bicknese determined that the grease tray could reach
temperatures sufficient to melt and breach the propane hose while food was being
cooked on the grill. When the hose was breached while in contact with the grease
tray, the operating burners ignited the escaping propane, starting a fire. According to
Bicknese's report, "[t]he fire that existed at the location of the hose breach within the
cabinet was not readily detectable from the exterior of the grill with the cabinet door
closed" and the "fire continued until the service valve of the propane tank was closed."

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(Id. at 743.) He reported that it took approximately 20 minutes for the fire to start, and
he stopped the test once the fire started.
Several months after the first test, Bicknese conducted a second round of testing
in response to tests conducted by Dudden on behalf of Nexgrill that challenged
Bicknese's initial test and to reconfirm what he had observed during his test. In the
second test, he used the compromised hose from the first test, and he allowed the test
to run for an additional amount of time. He testified that he effectively recreated the
conditions of the first test but instead of ending the test after approximately twenty
minutes, he allowed the hose fire to continue burning. According to his report on the
second test, the propane that escaped from the hose was ignited within a minute by the
burners above, and was allowed to burn for approximately 50 minutes. The hose
burned back toward the regulator and was being consumed by the fire. Bicknese
reported that "[t]he [second] test was stopped before any visible exterior damage to
the regulator occurred." (Id. at 38.) Bicknese reported that the second test continued
to support his theory that the fire was the result of the deterioration of the rubber
propane hose caused by contact with the heated grease tray.
Nexgrill filed a motion to exclude the Bicknese evidence. The district court
granted that motion, finding that the experiment was done to recreate the fire at the
Dunns' residence to determine the cause of the fire, not to test scientific principles.
The district court also held that the test was not substantially similar to what occurred
at the Dunn residence because the regulator hose was rerouted and was secured in
place with a tie-down. The court also noted the difference in timelines between
Bicknese's second test and the fire at the Dunns' home. The grill stopped being used
at 7:00 p.m., and the fire was not detected until 9:42 p.m. The district court noted that
Bicknese's test showed that "the regulator hose on the [test] grill nearly was engulfed

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in flames after just 50 minutes of testing." (Add. at 8.)1 Following the exclusion of
the Bicknese evidence, Nexgrill filed a motion for summary judgment. The district
court granted this motion, finding that the Dunns could not prove a product defect.
The Dunns appeal both the exclusion of the Bicknese evidence and the grant of
Nexgrill's motion for summary judgment.
II.
A. Bicknese Evidence
We review the district court's exclusion of expert testimony for an abuse of
discretion. DG&G, Inc. v. FlexSol Packaging Corp., 576 F.3d 820, 827 (8th Cir.
2009). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
testimony. It states that
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702.

1

In fact, when one includes data from the initial test establishing that it took 20
minutes for the propane hose to be breached and the hose fire to commence, the
second test showed that the actual total elapsed time for the second test would have
been 70 minutes.
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We have said that "'[t]he admissibility of evidence of experimental tests rests
largely in the discretion of the trial judge and [its] decision will not be overturned
absent a clear showing of an abuse of discretion.'" McKnight v. Johnson Controls, 36
F.3d 1396, 1401 (8th Cir. 1994) (quoting Champeau v. Fruehauf Corp., 814 F.2d
1271, 1278 (8th Cir. 1987)). When a district court has discretion, "'we do not mean
that the district court may do whatever it pleases.'" Verizon Commc'ns., Inc., v.
Inverizon Int'l, Inc., 295 F.3d 870, 872-73 (8th Cir. 2002) (quoting Kern v. TXO Prod.
Corp., 738 F.2d 968, 970 (8th Cir. 1984)). Instead, the district court has a "'range of
choice,'" and "'its decision will not be disturbed as long as it stays within that range
and is not influenced by any mistake of law.'" Id. at 873 (quoting Kern, 738 F.2d at
970). A district court abuses its discretion when it (1) fails to consider a relevant
factor that should have been given significant weight; (2) considers and gives
significant weight to an irrelevant or improper factor; or (3) considers only proper
factors but commits a clear error of judgment in weighing those factors. Id.
Previously, we have explained that "experimental evidence falls on a spectrum
and the foundational standard for its admissibility is determined by whether the
evidence is closer to simulating the accident or to demonstrating abstract scientific
principles." McKnight, 36 F.3d at 1402. "In this case, like many others, the
distinction between evidence offered as a reconstruction of the accident and evidence
offered to demonstrate scientific principles is very difficult to draw. There is no
bright line distinguishing these two categories of evidence." Id. (internal citation
omitted). "'A court may properly admit experimental evidence if the tests were
conducted under conditions substantially similar to the actual conditions.'" Id. at 1401
(quoting Champeau, 814 F.2d at 1278). However, if "the experimental tests do not
purport to recreate the accident, but instead the experiments are used to demonstrate
only general scientific principles, the requirement of the substantially similar
circumstances no longer applies." Id.

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The Dunns assert that the Bicknese evidence was not intended to show how the
fire began but was instead intended to show general scientific principles: that is, it was
designed to show that the heated grease tray could breach the hose and the thenleaking propane could be ignited by the burner above to cause a fire. Nexgrill,
however, argues that the district court properly excluded the Bicknese evidence
because Bicknese's experiments were designed not to demonstrate scientific principles
but to attempt to recreate the fire, because the tests were not substantially similar to
the actual fire conditions, and because Bicknese did not provide the propane hose to
Nexgrill, which prevented Nexgrill from reviewing and analyzing his work.
The Dunns' main argument is that the tests were conducted to test scientific
principles and Bicknese's hypotheses, not to show exactly how the accident occurred.
As explained in McKnight, when the purpose of the test is to demonstrate general
scientific principles, the substantially similar requirement does not apply. Bicknese
testified that the testing was designed "to establish certain scientific principles"
including whether "the propane hose [could] deteriorate sufficiently to leak when in
contact with the grease tray during the grill operation" and whether "propane leaking
from the deteriorated hose can be ignited by the operating burner." (J.A. at 737.) He
also testified that his photographs of the burning hose showing it had been
compromised by contact with the heated grease tray was "what happened in this case,"
and that the pictures taken during his tests showed what he believed had occurred
inside the grill cabinet during the period from approximately 7:00 p.m. to 9:42 p.m.
The district court's determination that Bicknese was not just testing scientific
principles but instead was trying to recreate the cause and origin of the fire is one that
we review for a clear abuse of discretion. Having reviewed the record carefully, we
are unable to say that the district court clearly abused its discretion. Mr. Bicknese did
not have to position the propane hose against the grease tray with a tie-down in order
to test his theory that a heated grease tray could compromise the hose. Positioning the
hose as he did is, in our view, a strong indicator that he was, in fact, trying to recreate
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how and why the fire happened, and supports the district court's determination. As
in McKnight, we find this to be a case "where some principles of some kind may be
demonstrated but in a fashion that looks very much like a recreation of the events that
gave rise to the trial." Id. at 1402 (quoting Fusco v. Gen. Motors Corp., 11 F.3d 259,
264 n.5 (1st Cir. 1993)). In McKnight, we relied on the fact that "[t]he experiments
were conducted on the same type and make of battery as the accident battery, and the
experiments were used to explain what probably happened during the accident," in
holding that the "tests clearly were not limited to a demonstration of scientific
principles in the abstract." McKnight, 36 F.3d at 1402, 1403. Much the same is true
here, given the efforts by the Dunns to obtain and use an identical grill for the testing,
including cooking food on the grill during the testing, and Bicknese's testimony that
the tests and photographs showed "what happened in this case." As a consequence,
in order for the Bicknese evidence to be admissible, the circumstances of the
experiments must be "substantially similar" to those existing at the time of the fire.
The Dunns do argue in the alternative that the circumstances of Bicknese's
experiments were substantially similar to the conditions existing at the time of the fire.
The district court's contrary determination is reviewed for an abuse of discretion.
McKnight, 36 F.3d at 1403. In resisting Nexgrill's argument that he was really
attempting to recreate the fire (as opposed to testing scientific principles), Bicknese
himself pointed out dissimilarities between his experiments and the fire, including his
removal of the propane tank with its pressure relief valve from the cabinet and his use
of a tie-down to secure the hose against the grease tray, conditions that obviously
would not have existed in the Dunns' grill at the time of the fire. The district court
relied on his "re-routing" of the regulator hose and his use of a "plastic tie-down" to
hold it in what the court called an "unnatural position" for his experiments in
determining the lack of substantial similarity. The district court also concluded that
Bicknese's experiment was not substantially similar because it did not "comport" with
the time line of the fire. Bicknese's experiment took only 70 minutes of elapsed time
between the compromising of the hose, its ignition, and the resulting escaping
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propane-fueled 1000-degree flames imperiling the regulator when other evidence
showed that over two and a half hours elapsed between the time the grill ceased to be
used and the discovery of the fire. The district court was of the opinion that the lack
of substantial similarity would tend to confuse rather than enlighten the jury, a
quintessential judgment call committed to a trial judge's sound discretion.
We pause to remind ourselves that the questions presented are not to be
measured by what we may have done were we the district court. The question for us
is whether or not the district court's decisions were a clear abuse of its discretion.
Having studied the record in depth, including a complete reading of both of
Bicknese's depositions and a careful examination of the color photographs he took of
his tests, we conclude that the district court considered the proper relevant factors, did
not give weight to any improper factors, and committed no clear error of judgment in
its evidentiary rulings; consequently, it did not clearly abuse the discretion committed
to it.
B. Motion for Summary Judgment
The Dunns next appeal the district court's grant of Nexgrill's motion for
summary judgment. "'We review a district court's grant of summary judgment de
novo, drawing all reasonable inferences, without resort to speculation, in favor of the
non-moving party.'" Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008)
(quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005)).
"'Summary judgment is appropriate if the facts, viewed in the light most favorable to
the non-moving party, show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.'" Id. (quoting Peterson v. Scott
Cnty., 406 F.3d 515, 520 (8th Cir. 2005)).
Under the doctrine of strict liability in tort, which Missouri applies, "one who
sells a product in a defective condition unreasonably dangerous to the user or
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consumer is subject to liability for injury to the user or the user's property caused by
the defect." Winters v. Sears, Roebuck & Co., 554 S.W.2d 565, 569 (Mo. Ct. App.
1977) (alteration and quotation marks omitted). The district court granted summary
judgment because it found that after the Bicknese evidence was excluded, the Dunns
lacked any evidence of a product defect. (See Add. at 12 ("Plaintiffs have no expert
to testify that a defect in the grill caused the fire.").)
Under Missouri tort law, in order to establish a products liability claim, a
plaintiff must demonstrate:
(1) the defendant sold a product in the course of its business; (2) the
product was then in a defective condition, unreasonably dangerous when
put to a reasonably anticipated use; (3) the product was used in a manner
reasonably anticipated; and (4) the plaintiff was damaged as a direct
result of such defective condition as existed when the product was sold.
Columbia Mut. Ins. Co. v. Epstein, 239 S.W.3d 667, 671 (Mo. 2007).
The Dunns have failed to offer an expert witness to support a claim that the grill
was in a "defective condition, unreasonably dangerous" when they put it "to a
reasonably anticipated use." See id. Initially the Dunns offered Randy Bicknese's
expert testimony, but as discussed above, the district court correctly excluded it. The
Dunns were then left with the expert testimony of Richard Hewitt and Dr. Lloyd
Brown. However, neither Hewitt nor Brown were able to testify that the grill was in
a defective condition or that a defect caused the fire. Nexgrill offered the testimony
of Alan Dudden, who asserted that "[t]here [was] no evidence of a design of
manufacturing defect with respect to the involved grill." (Appendix at 145.) Because
the Dunns failed to offer any admissible evidence to contest this, there is no genuine
issue of material fact as to whether the grill was in a "defective condition,
unreasonably dangerous when put to a reasonably anticipated use." See Columbia
Mut. Ins. Co, 239 S.W.3d at 671.
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The Dunns assert that they should have been allowed to prove product defect
from circumstantial evidence. The Dunns acknowledge that they did not plead a res
ipsa loquitur theory of liability. Because they did not plead res ipsa, and because they
pled specific acts of negligence on the part of Nexgrill, they cannot recover under a
res ipsa theory. See England v. Downey, 589 F.3d 374, 377 n.5 (8th Cir. 2009) ("Res
ipsa is applicable only when the plaintiff does not know the cause of the accident. By
delineating specific acts of negligence on [defendant's] part in [plaintiff's] complaint,
[plaintiff indicated that he knew the cause of the accident." (internal citation omitted)).
However, the Dunns argue that this does not prohibit them from proving the
existence of a product defect through circumstantial evidence under a "res-ipsa type"
theory of liability. Yet even if they could assert this type of claim without pleading
res ipsa loquitur and with pleading specific acts of negligence from Nexgrill, they
have failed to establish that they could offer sufficient evidence to prove a product
defect through circumstantial evidence. "To prove a product liability claim by
inference from circumstantial evidence without proof of a specific defect, a plaintiff
must offer evidence that (1) tends to eliminate other possible causes of the injury or
property damage, (2) demonstrates that the product was in the same basic condition
at the time of the occurrence as when it left the hands of the defendants, and (3) the
injury or damages is of a type that normally would not have occurred in the absence
of a defect in the product." Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252,
1258 (8th Cir. 2006).
The Dunns identify several cases they claim support their contention that they
can prove a product defect in the grill through circumstantial evidence. They point
to Hickerson, Klein v. General Electric Co., 714 S.W.2d 896 (Mo. Ct. App. 1986),
Fain v. GTE Sylvania, Inc., 652 S.W.2d 163 (Mo. Ct. App. 1983), and Winters v.
Sears, Roebuck & Co., 554 S.W.2d 565 (Mo. Ct. App. 1977), in support of their
argument. However, all of those cases are inapposite.

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In all of the cases the Dunns identified, fires were alleged to have been caused
by items that do not ordinarily ignite or explode without product defects. For
example, in Hickerson, we allowed an expert to testify, without evidence of a specific
product defect, that the origin of a house fire was a motorized scooter chair.
Hickerson, 470 F.3d at 1257. However, in explaining the decision, we emphasized
that common experience suggests that spontaneous ignition of a scooter would not
occur in the absence of a defect. Id. at 1260. Likewise, in both Fain and Winters,
courts determined that a jury could have found that a television caused a fire without
proof of a specific defect in the television set based on the "common experience" that
some accidents do not happen absent a defect. Fain, 652 S.W.2d at 165; Winters, 554
S.W.2d at 570. Thus, Hickerson, Fain, and Winters all involved products that do not
normally combust without a product defect, as opposed to a grill, which is designed
to ignite as a part of normal use and contains a highly flammable substance—propane.
In fact, a grill is more like the cigarette lighter that allegedly started a fire in Willard
v. Bic Corp., 788 F. Supp. 1059 (W.D. Mo. 1991), than a motorized scooter chair or
a television set. In Willard, the district court distinguished Winters by noting that,
"unlike a television set, the very purpose of a cigarette lighter is to produce a flame."
Id. at 1069.
Finally, in Klein, a coffeemaker was alleged to have started a house fire. Klein,
714 S.W.2d at 899. However, in Klein, the plaintiffs offered expert testimony as to
specific potential defects in the construction and design of the coffeemaker that could
have caused the fire. Id. at 900. Here, the Dunns cannot offer any comparable expert
testimony as to specific potential defects in the construction and design of the grill.
Moreover, like in the previously discussed cases, a coffeemaker does not combust
without a product defect. Accordingly, the cases identified by the Dunns (Hickerson,
Fain, Winters, and Klein) are inapposite.
Ultimately, the Dunns have failed to establish any genuine issue of material fact
as to whether there was a product defect in the grill and whether such defect caused
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the fire. Without Bicknese's testimony, their experts' testimony is limited to the origin
and source of the fire and does not establish how the fire actually started. The Dunns
have further failed to offer any circumstantial evidence that the fire was caused by a
product defect within the grill. The cases the Dunns cite do not support their
argument because the products in those instances were completely different and
(unlike a grill) did not generally ignite without a defect. In contrast, grills are
designed specifically to ignite, like the cigarette lighter in Willard. Because the Dunns
have failed to raise a genuine issue of material fact, the district court did not err in
granting Nexgrill's motion for summary judgment.
III.
Accordingly, the judgment of the district court is affirmed.
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