Gilliland et al v. Harley-Davidson Motor Company Group, LLC

Filing 122

ORDER - The Motion to Exclude Any Testimony or Evidence Relating to the Pinch Bolts on the Subject Motorcycle 101 filed by Defendant Harley Davidson Motor Company Group, LLC ("Harley-Davidson") is denied, without prejudice to Defendant& #039;s assertion of objections at trial; The Motion to Exclude the Testimony of Plaintiffs' Expert Witness James M. Weaver, P.E. 103 filed by Harley-Davidson is denied; The Motion for Summary Judgment 94 filed by Harley-Davidson is denied; and The Motion for Hearing and Request for Oral Argument on Pending Motions 114 filed by Harley-Davidson is denied. Ordered by Chief Judge Laurie Smith Camp. (SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRENCE N. GILLILAND, DENISE M.
GILLILAND, and LUIS S. GALLEGOS,
8:12CV384
Plaintiffs,
vs.

MEMORANDUM AND ORDER

HARLEY-DAVIDSON MOTOR COMPANY
GROUP, LLC,
Defendant.

This matter is before the Court on the following motions filed by Defendant
Harley Davidson Motor Company Group, LLC (“Harley-Davidson”): the Motion for
Summary Judgment (Filing No. 94); the Motion to Exclude Any Testimony or Evidence
Relating to the Pinch Bolts on the Subject Motorcycle (Filing No. 101); the Motion to
Exclude the Testimony of Plaintiffs’ Expert Witness James M. Weaver, P.E. (Filing No.
103), and the Motion for Hearing and Request for Oral Argument on Pending Motions
(Filing No. 114). For the reasons stated below, the Motions will be denied.
FACTUAL BACKGROUND
I.

Uncontroverted Facts
Unless otherwise indicated, the following facts were presented in the parties’

briefs and were supported by pinpoint citations to admissible evidence in the record that
the parties have admitted, or that the parties have not properly resisted 1 as required by
NECivR 56.12 and Fed. R. Civ. P. 56.
1

“Properly referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1).
2

None of Harley-Davidson’s briefs includes a numbered statement of facts as required by
NECivR 56.1(a)(1). In its brief in support of its Motion for Summary Judgment (Filing No. 95), Harley-

A.

The Parties

Plaintiffs Terrence Gilliland (“Gilliland”) and Denise Gilliland (“Mrs. Gilliland”)
reside in Glenwood, Iowa. Plaintiff Luis Gallegos (“Gallegos”) resides in Council Bluffs,
Iowa. Harley-Davidson is a Wisconsin corporation with its principal place of business in
Milwaukee, Wisconsin. Defendant removed this action from the District Court of Dodge
County, Nebraska, invoking the Court’s diversity jurisdiction, and asserting that venue is
proper in this Court because the motorcycle at issue in this case was purchased from a
Harley-Davidson dealership in Omaha, Nebraska.
B.

The Accident

This case arises out of a motorcycle accident that occurred on April 22, 2010, in
Mills County, Iowa. Gilliland purchased the motorcycle, a 2007 Harley-Davidson
VRSCAW V-Rod (“subject motorcycle”), from Dillon Brothers Harley-Davidson in
Omaha on or about July 23, 2007. At the time of the accident, Gilliland was operating
the subject motorcycle, which had approximately 1,500 miles on the odometer.
Gallegos was a passenger. Neither Gilliland nor Gallegos can recall, or knew at the
time, what caused the accident. Plaintiffs claim the accident occurred because the
center post of the subject motorcycle’s triple-tree assembly came apart, causing the
crash.

Davidson incorporates by reference the statement of facts contained in its brief in support of its Motion to
Exclude the testimony of James Weaver (Filing No. 102). The statement of facts in that brief does not
contain short numbered paragraphs as required by NECivR 56.1(a)(2), but does include citations to the
record. Harley-Davidson separately filed a “Proposed Findings of Fact” that included separately
numbered paragraphs with citations to the record. (Filing No. 105.) Plaintiffs responded to HarleyDavidson’s statement of facts in separately numbered paragraphs, but it is unclear as to which set of
facts Plaintiffs responded. (Filing No. 113.) The Court has attempted to discern the undisputed facts, but
because of noncompliance with NECivR 56.1, ambiguities must be resolved in favor of Plaintiffs as the
non-moving party.

2

C.

Relevant Components of the Subject Motorcycle

This case relates to steering components of the subject motorcycle Plaintiffs refer
to as the “triple tree assembly,” also referred to as the “front fork assembly.” A diagram
of the triple tree assembly appears below:
Part no. 6: fork stem cap;
Part no. 8: fork stem nut;
Part no. 7: fork stem lockwasher;
Part no. 27: upper triple clamp;
Part no. 2: pinch bolts (4);
Part no. 34: upper adjusting nut or seat upper head cone;
Part no. 26: fork stem, lower triple clamp; and
Part nos. 28-29: fork tube and slider assembly or fork
assembly (left and right).

Plaintiffs specifically allege that the fork stem nut (part no. 8) and pinch bolts (part no. 2)
on the triple tree assembly were loose and not properly fastened or installed at the time
the motorcycle was manufactured. Plaintiffs allege that the loose stem nut and pinch
bolts reduced the steering resistance, and caused steering instability during operation of
the subject motorcycle. (Filing No. 112-1 ¶ 6.)
II.

Procedural and Discovery History
Plaintiffs initially filed a complaint (“Original Complaint”) on December 13, 2010,

in the District Court of Douglas County, Nebraska, alleging theories of recovery
including negligent manufacturing, negligent failure to warn, negligent inspection/testing,
negligent training and strict liability, with respect to the subject motorcycle. Specifically,
Plaintiffs alleged that “a metal nut on or near the top of the center post of the
3

motorcycle’s triple tree assembly” was not adequately and properly secured such that
the triple tree assembly came apart and caused Gilliland to crash. (Filing No. 100-1 at
3.) The nut at issue in the Original Complaint and discovery responses is depicted as
part no. 8 above. The parties and several party representatives inspected the subject
motorcycle on February 18, 2011, at Holstein’s Harley-Davidson in Omaha. At that time,
the motorcycle was examined with no further disassembly or destruction.
At some point after the nondestructive inspection of the subject motorcycle, Jack
Vaughn (“Vaughn”), a mechanic and friend of Gilliland, performed repairs to the subject
motorcycle. During the repairs, the original lower triple clamp/stem assembly, stem nut,
and upper triple clamp were unaltered. However, Vaughn removed the pinch bolts and
reused them in the new assembly, tightening them in place.3 Gilliland testified that
“after the accident I let [Vaughn] know that I relinquish myself from the bike. I had no
interest in it whatsoever. None. As far as I was concerned, he could have the bike.”
(Filing No. 96-3, Gilliland Dep. at 104:12-16.)
Plaintiffs moved to dismiss the Original Complaint on October 3, 2011, and
neither the parties nor the Douglas County District Court took any further action in the
matter until the case was dismissed, without prejudice, for lack of prosecution on June
7, 2012.
On October 12, 2012, Plaintiffs filed their Complaint in this case (Filing No. 1 at
ECF 5-16) in Dodge County, Nebraska District Court, alleging nearly identical claims.
Harley-Davidson removed the action to this Court on October 30, 2014. (Filing No. 1.)
3

As discussed below, Harley-Davidson argues that Plaintiffs’ claims and expert testimony in its
second lawsuit rely upon the torque measurements of the pinch bolts on the subject motorcycle, and that
it had no reason to measure the torque of the pinch bolts during the first inspection on February 18, 2011.

4

Harley-Davidson now moves to exclude any evidence regarding the pinch bolts on the
subject motorcycle because they were removed and replaced by Vaughn after the
accident. Harley-Davidson also moves to exclude the testimony of Plaintiffs’ expert,
James M. Weaver (“Weaver”), on the grounds that Weaver’s testimony is unreliable.
Harley-Davidson argues that if its motions are granted, it is entitled to summary
judgment on Plaintiffs’ claims.
MOTION FOR ORAL ARGUMENT ON DEFENDANT’S MOTIONS
The Court will not grant Harley-Davidson’s request for a hearing. “In general the
court does not allow oral argument or evidentiary hearings on motions.” NECivR 7.1(d).
Thus, there is no right to a hearing on the civil motions at issue here, including HarleyDavidson’s Daubert challenge. The Supreme Court has stated that a district court “must
have the same kind of latitude in deciding how to test an expert's reliability, . . . as it
enjoys when it decides whether or not that expert's relevant testimony is reliable.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Courts have interpreted this
statement to mean that a district court is not required to hold a hearing to satisfy its
responsibilities under Daubert. See e.g. Hanford Nuclear Reservation Litigation v.
Jeanne Jaros, 292 F.3d 1124, 1138–39 (9th Cir. 2002) (affirming the district court's
decision to refuse a Daubert hearing where the district court had the experts' reports,
deposition testimony, and the experts' affidavits). The parties have indicated to the
Court that they do not plan to introduce any additional evidence or examine witnesses
or experts should a hearing be held. The record is sufficient to allow the Court to decide
the Motions for Summary Judgment and In Limine, as well as to perform its gatekeeping

5

function under Daubert. Accordingly, a hearing would not be helpful to the Court on
Harley-Davidson’s Motions.
MOTION TO EXCLUDE EVIDENCE OF PINCH BOLTS
I.

Standard for Spoliation Sanctions
The Eighth Circuit recently held that “federal law applies to the imposition of

sanctions for the spoliation of evidence.” Sherman v. Rinchem Co., 687 F.3d 996, 1006
(8th Cir. 2012). “Under federal law, ‘there must be a finding of intentional destruction
indicating a desire to suppress the truth.’” Id. (quoting Stevenson v. Union Pac. R.R.
Co., 354 F.3d 739, 746 (8th Cir. 2004)). However, a district court may impose sanctions
“even absent an explicit bad faith finding, where a party destroys specifically requested
evidence after litigation has commenced.” Gallagher v. Magner, 619 F.3d 823, 845 (8th
Cir. 2010) (citing Stevenson, 354 F.3d at 749–50).
II.

Appropriateness of Sanctions Against Plaintiffs
Harley-Davidson argues that any evidence related to the pinch bolts should be

excluded because the subject motorcycle was disassembled, repaired, and then
reassembled by Vaughn after the original lawsuit was commenced. When Vaughn
performed the repairs, he took torque measurements of the pinch bolts in their postaccident condition. He removed the bolts and reused them when he replaced certain
parts of the triple tree assembly. Harley-Davidson argues that the measurements of the
pinch bolts cannot be replicated, verified, or checked for accuracy. Harley-Davidson
also asserts that Vaughn cannot produce the tool he used to take the measurements,
so the accuracy and calibration of the tool cannot be verified.

6

Although Gilliland admits he gave the subject motorcycle to Vaughn, there is
insufficient evidence at this time from which to conclude that he or any Plaintiff was
motivated by a desire to suppress the truth. Harley-Davidson admits that Gilliland
delivered the subject motorcycle to Vaughn after both parties had inspected it during the
first lawsuit. Further, in October 2011, nearly eight months after the initial inspection,
Plaintiffs moved to dismiss the original lawsuit. There is no evidence that at the time
Plaintiffs moved to voluntarily dismiss, they did so with the intention of refiling. Even if
Plaintiffs did intend to refile, “[t]he ultimate focus for imposing sanctions for spoliation of
evidence is the intentional destruction of evidence indicating a desire to suppress the
truth, not the prospect of litigation.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032,
1035 (8th Cir. 2007) (citing Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8th Cir.
2004)). Based upon the record, the Court cannot conclude at this time that Gilliland
acted with desire to suppress the truth.
The importance of the torque measurements to Plaintiffs’ case is unclear. HarleyDavidson’s primary concern appears focus on statements contained in Weaver’s expert
report (Filing No. 98-1). In the report, Weaver states that a review of attorney-provided
documents revealed: “Testing performed by Mr. Jack Vaughan using a beam torque
wrench revealed that all four triple tree pinch bolts was (sic) tightened to a level well
below that required during factory assembly (41--47 Newton meters).” (Filing No. 98-1
at 2.) The report further stated that “[i]nadequate pinch bolt torque during assembly
combined with looseness in the fork stem nut would contribute to both play and
inadequate steering damping during normal motorcycling conditions.” (Id. at 3.) The
degree to which pinch bolt torque contributed to inadequate steering damping is not
7

immediately apparent from Weaver’s report. Accordingly, it is difficult to determine the
extent to which Plaintiffs’ claims depend on Vaughn’s torque measurements at this
stage. The Court agrees with the court in Victor v. Lawler, No. 3:08-CV-1374, 2011 WL
3664741, at *5 (M.D. Pa. Aug. 19, 2011):
Many of the considerations which determine whether a spoliation sanction
is appropriate, however, are factual matters which are best decided by a
trial judge in the context of a trial, where the court can consider the precise
nature of the proof at trial, and the credibility of various witnesses.
The reliability of the torque measurements and admissibility of those measurements will
depend upon the credibility and context of the evidence to be adduced at trial. Further,
any appropriate sanction for the failure to preserve the subject motorcycle will best be
determined after the Court has considered that evidence in context. Accordingly, the
Court will deny Harley-Davidson’s Motion to Exclude Pinch Bolt Evidence, without
prejudice to reassertion of objections at trial.
MOTION TO EXCLUDE WEAVER’S TESTIMONY
I.

Standard of Review Under Fed. R. Civ. P. 702
Harley-Davidson argues that Weaver should be precluded from offering any

testimony at trial under Federal Rule of Evidence 702. Fed. R. Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
8

District

courts

“in

admitting

expert

testimony,

[have]

the

gatekeeping

responsibility to ‘ensur[e] that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand.’” First Union Nat. Bank v. Benham, 423 F.3d 855,
861 (8th Cir. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999));
see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). “The
proponent of the expert testimony must prove its admissibility by a preponderance of
the evidence.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing
Daubert, 509 U.S. at 592).
District courts have “broad discretion” in determining whether an expert's
testimony is admissible. Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir. 1999).
Regardless of the factors the court evaluates in determining the admissibility of expert
testimony, “the main inquiry is whether the proffered expert's testimony is sufficiently
reliable.” First Union Nat. Bank, 423 F.3d at 861 (citing Unrein v. Timesavers, Inc., 394
F.3d 1008, 1011 (8th Cir. 2005) (“There is no single requirement for admissibility as
long as the proffer indicates that the expert evidence is reliable and relevant”). “An
expert's opinion should be excluded only if that ‘opinion is so fundamentally
unsupported that it can offer no assistance to the jury.’” Synergetics, Inc. v. Hurst, 477
F.3d 949, 956 (8th Cir. 2007) (quoting Bonner v. ISP Tech., Inc., 259 F.3d 924, 929 (8th
Cir. 2001)). “[D]oubts regarding whether an expert’s testimony will be useful should
generally be resolved in favor of admissibility.” Miles v. General Motors Corp., 262 F.3d
720, 724 (8th Cir. 2001).
Harley-Davidson argues Weaver (1) lacks the background and experience
necessary to offer opinions regarding motorcycle design, manufacture, stability or
9

operation, and (2) bases his opinions on guesswork and speculation and not supported
by any reliable evidence. The Court concludes that Harley-Davidson’s Motion should be
denied, without prejudice to the assertion of objections at the time of trial.
A.

Weaver’s Expertise in Motorcycle Dynamics

The Eighth Circuit has held that “an individual can qualify as an expert where he
possesses sufficient knowledge gained from practical experience, even though he may
lack academic qualifications in the particular field of expertise.” Fox v. Dannenberg, 906
F.2d 1253, 1256 (8th Cir. 1990).
Harley-Davidson argues that Weaver is not an expert in motorcycle dynamics
because he has no professional engineering experience related to motorcycle design,
nor does he have any professional experience directly related to motorcycle engineering
or repair. Weaver’s professional experience has related in large part to buildings such
as restaurants, houses, and manufacturing facilities. (Filing No. 97-2 at 10:6-12.)
However, Weaver has been a motorcycle enthusiast since 1965, and has extensive
knowledge of motorcycle systems and steering defects. He has also testified as an
expert in product liability cases involving motorcycle steering defects (id. at 14:5-9; 15:210), and has been retained as an expert in other cases involving motorcycles, including
one involving a Harley-Davidson motorcycle with steering problems (id. at 18:3-19:24).
Even if there are questions about Weaver’s qualifications, the Eighth Circuit has
explained that “[g]aps in an expert witness's qualifications or knowledge generally go to
the weight of the witness's testimony, not its admissibility.” Robinson v. GEICO Gen.
Ins. Co., 447 F.3d 1096, 1100 (8th Cir.2006) (citation omitted). Weaknesses in
Weaver’s qualifications and testimony may be addressed through vigorous cross10

examination. See Daubert, 509 U.S. at 596. Accordingly, the Court will not exclude
Weaver’s testimony merely because he is not an expert in motorcycle dynamics.
B.

Reliability of Weaver’s Testimony

Harley-Davidson also argues that Weaver’s opinions are not supported by
scientific methodology as required by Daubert and Rule 702. Harley-Davidson states
that Weaver cannot say with any degree of certainty that instability in the steering
components or “steering wobble” occurred at all. Harley-Davidson notes that Weaver’s
opinion is based largely on eliminating other potential causes. For example, Weaver
ruled out time of day, weather, and road conditions according to the testimony of
Gilliland and Gallegos. He also concluded that operator error was unlikely because
Gilliland was riding in a straight line at the time. (Filing No. 97-2 at 26:19-22.) Weaver
explained that “there seems to be no other apparent cause of a capsize in daylight, in
excellent riding conditions, excellent roadway conditions.” (Id. at 27:1-3.) Weaver also
notes that he eliminated partially deflated tires as a possible cause, because he
reviewed Gilliland’s deposition in which Gilliland testified that he regularly checked tire
pressure. (Filing No. 97-2 at 35:20-22.) Weaver opined that Weaver would have noticed
a deflated tire prior to the accident. (Filing No. 97-2 at 36:1-16.)
Although alternative explanations must be considered, Lauzon, 270 F.3d at 687,
it appears that Weaver performed an analysis of evidence and other sources in
reaching his opinion. Weaver reviewed various documents, including the depositions of
Gilliland and Gallegos; examined the damaged triple tree assembly; made
measurements and calculations; reviewed Harley-Davidson’s parts manual; reviewed
photographs taken by Defendant’s expert at the post-accident inspection of the
11

motorcycle, and assembly drawings for the bike; and applied engineering principles in
arriving at his opinions. He also relied on standard text used by experts in the field of
motorcycle dynamics.
Harley-Davidson disputes this methodology because Weaver failed to perform
certain tasks and take certain measurements. For example, Harley-Davidson argues
that Weaver did not perform his own calculations to determine whether the stem nut
was loose; failed to perform an accident reconstruction; did not calculate what clamp
loads were required to prevent unintended moment in the steering components; and did
not try to recreate the “wobble” with an exemplar motorcycle. Thus, Harley-Davidson
argues that Weaver’s deficient methods render his opinions unreliable.
The Eighth Circuit has found that a review of documentation, texts, and other
evidence can form a sufficient basis for an expert opinion. In Miles v. Gen. Motors
Corp., 262 F.3d 720, 724 (8th Cir. 2001), a product liability case involving a motorcycle
accident, the plaintiff argued the testimony of one of the defendant’s experts was
unreliable because at the time of the expert’s deposition the expert had not examined
the plaintiff, the x-rays taken of the plaintiff’s leg, the motorcycle, the truck, or the scene
of the accident. The Eighth Circuit disagreed, noting that the expert reconstructed the
accident by reviewing a police report; photographs of the scene; the plaintiff’s medical
records; the plaintiff’s radiology reports; witness statements and depositions; and
relevant medical literature. Id. The court concluded that the expert was not required to
use the methodology most suitable to the plaintiff, and that the expert was able to glean
the requisite information through the methods he used. Id. Weaver used a similar

12

approach by reviewing evidence, texts, and other documentation to formulate his
opinions. The Court cannot conclude that this method is inherently unreliable.
Harley-Davidson also argues that Weaver’s opinions are based on shaky
evidence and speculation. For example, Weaver testified that he was “not totally
certain” whether the pinch bolt tension changed as a result of the accident and whether
the stem nut was not tightened in the factory or whether it was loosened after it left the
factory (Filing No. 97-3 at 23:4-15); Weaver stated that the stem nut was not sufficiently
threaded down onto the steering stem, based upon Weaver’s visual inspection rather
than any specific measurement (see id. at 58:23-59:7, 63:11-25); Weaver’s opinion was
based on an inaccurate count of the threads on the stem nut (id. at 43:11-44:2, 62:2463:4); and his conclusions regarding the torque measurements of the pinch bolts were
based upon Vaughn’s measurements when Vaughn repaired the subject motorcycle,
although Weaver admits that he could not confirm the accuracy of Vaughn’s
measurements (see id. at 87:22-88:10, 88:17-89:7).
The focus of Harley-Davidson’s argument appears to be that the factual basis for
Weaver’s testimony is unsupported and not properly verified. “As a general rule, the
factual basis of an expert opinion goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual basis for the
opinion in cross-examination.” Bonner, 259 F.3d at 929 (quoting Hose v. Chicago
Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) (internal citations and
quotations omitted)). In this case, Weaver’s testimony is “not so fundamentally
unsupported that it could offer no assistance to the jury.” Synergetics, Inc. v. Hurst, 477
F.3d 949, 956 (8th Cir. 2007). Although Harley-Davidson has identified several potential
13

weaknesses in Weaver’s methodology and conclusions, it may address these
weaknesses through cross-examination and its own experts. Id.; see also Daubert, 509
U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”). Even if the opinions proffered by Weaver
may be subject to challenge as to the weight they should be afforded, the Court cannot
conclude that Weaver’s testimony is inadmissible.
MOTION FOR SUMMARY JUDGMENT
I.

Motion for Summary Judgment Standard
“Summary judgment is appropriate when, construing the evidence most favorably

to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n. 2 (8th
Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) cert. denied, 132 S.Ct. 513 (2011)) (internal quotations omitted). In reviewing
a motion for summary judgment, the court will view “all facts and mak[e] all reasonable
inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom
Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will
bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper
summary judgment motion to be opposed by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party’s
14

claims by showing “the absence of a genuine issue of material fact.” Id. at 325. Instead,
“the burden on the moving party may be discharged by ‘showing’ . . . that there is an
absence of evidence to support the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting
Torgerson, 643 F.3d at 1042) (internal quotations omitted). “‘[T]he mere existence of
some alleged factual dispute between the parties’” will not defeat an otherwise properly
supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751
(8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotations omitted). Otherwise,
where the Court finds that “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party,” there is no “genuine issue for trial” and summary
judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557
U.S. 557, 586 (2009)) (internal quotations omitted).

15

II.

Choice of Law
The Court applies Nebraska’s choice-of-law rules to determine which substantive

law applies. See John T. Jones Constr. Co. v. Hoot Gen. Constr. Co., Inc., 613 F.3d
778, 782 (8th Cir. 2010) (“We apply the choice-of-law rules of the forum state in a
diversity action.”). Under Nebraska choice-of-law rules, the Court seeks guidance from
Restatement (Second) of Conflict of Laws. Erickson v. U-Haul Int’l, 767 N.W.2d 765,
772 (Neb. 2009). “Section 145(2) of the Restatement provides the contacts that a court
should consider when determining which state has the most significant relationship to
the parties and the occurrence under general conflict of law principles.” Id. at 773.
These contacts include: (1) the place where the injury occurred; (2) the domicile,
residence, nationality, place of incorporation and place of business of the parties; and
(3) the place where the relationship, if any, between the parties is centered.
Restatement (Second) of Conflict of Laws § 145(2). Section 147 of the Restatement
provides that “the local law of the state where the injury occurred determines the rights
and liabilities of the parties,” unless “some other state has a more significant
relationship under the principles stated in § 6 to the occurrence, the thing and the
parties.”
Based upon these factors, Iowa has the most significant relationship to this
action. The accident took place in Iowa, the Plaintiffs are residents of Iowa, and all of
the work on the subject motorcycle was performed in Iowa. Although the parties do not
appear to disagree that Iowa law applies, the Court includes this analysis because there
is a true conflict between Nebraska and Iowa law. Specifically, Nebraska follows the
“user-contemplation test” for product liability cases, in which a product is “unreasonably
16

dangerous” if it causes harm beyond “that which would be contemplated by the ordinary
user or consumer who purchases it, with the ordinary knowledge common to the
foreseeable class of users as to its characteristics.” Rahmig v. Mosley Mach. Co., 412
N.W.2d 56, 69 (Neb. 1987). Iowa does not follow the “user-contemplation test” as that
test was effectively dropped from section 2 of the Restatement (Third) of Torts. See
Wright v. Brooke Group, Ltd., 652 N.W.2d 159, 167, 168-69 (Iowa 2002). Under Iowa
law, Plaintiffs must demonstrate that (1) the product contained a manufacturing defect
or defects that departed from the product’s intended design at the time it left the
defendant’s control; and (2) that the manufacturing defect was a proximate cause of
plaintiff’s damages.4 Id. at 178.
III.

Discussion
Harley-Davidson argues that if Weaver is excluded as Plaintiffs’ expert, Plaintiffs

are left with no way to prove that the subject motorcycle contained a manufacturing
defect, or that the defect was the proximate cause of Plaintiffs’ damages. The Court
agrees that expert testimony will be necessary to prove Plaintiffs’ theory of the case—
that the accident was caused by “wobble” in the subject motorcycle’s steering
components and the “wobble” was caused by a manufacturing defect. However, as
discussed above, the Court cannot conclude at this time that Weaver’s testimony is
inadmissible under Federal Rule of Civil Procedure 702 and Daubert. Accordingly,
Harley-Davidson’s Motion for Summary Judgment is denied.

4

This law applies to all manufacturing defect claims, regardless of whether they are classified as
negligence or strict liability claims. Wright, 652 N.W.2d at 178.

17

CONCLUSION
For the reasons stated, there is no evidence in the record at this time of bad faith
on the part of the Plaintiffs sufficient to impose sanctions for spoliation. HarleyDavidson’s arguments with respect to Weaver’s testimony go to Weaver’s credibility and
may be attacked through presentation of their own evidence and through crossexamination. Because the Court will not exclude Weaver’s testimony at this time,
Harley-Davidson is not entitled to summary judgment.
Accordingly,
IT IS ORDERED:
1.

The Motion to Exclude Any Testimony or Evidence Relating to the Pinch
Bolts on the Subject Motorcycle (Filing No. 101), filed by Defendant Harley
Davidson Motor Company Group, LLC (“Harley-Davidson”) is denied,
without prejudice to Defendant’s assertion of objections at trial;

2.

The Motion to Exclude the Testimony of Plaintiffs’ Expert Witness James
M. Weaver, P.E. (Filing No. 103), filed by Harley-Davidson is denied;

3.

The Motion for Summary Judgment (Filing No. 94), filed by HarleyDavidson is denied; and

4.

The Motion for Hearing and Request for Oral Argument on Pending
Motions (Filing No. 114), filed by Harley-Davidson is denied.

Dated this 8th day of January, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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