This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Harvest States Cooperative,





Phillips & Temro Industries, Inc.,





Freightliner Corporation,



Filed June 13, 2000


Shumaker, Judge


Hennepin County District Court

File No. 9720466


Russell D. Melton, Thomas W. Pahl, Foley & Mansfield, 200 Lafayette Building, 1108 Nicollet Mall, Minneapolis, MN 55403 (for appellant)


Paul Dieseth, Dorsey & Whitney, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent Phillips & Temro Industries, Inc.)


George W. Soule, Steven L. Reitenour, Marlene A. Yoder,  Bowman and Brooke, LLP, 150 South Fifth Street, Suite 2600, Minneapolis, MN 55402 (for respondent Freightliner Corporation)


Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I ON


Appellant contends that the district court erred by granting summary judgment to respondent on the ground that appellant's expert evidence of causation of a fire that damaged appellant's property was too speculative to create a genuine issue of material fact for trial.  We affirm.


Appellant Harvest States Cooperative leased a used 1994 semi-tractor manufactured by respondent Freightliner Corporation.  The engine had a block heater and a plug-in cord.

Harvest States parked the semi-tractor at its seed plant on December 31, 1996, and it remained there over the New Year's holiday with the block heater plugged in.  On the morning of January 2, 1997, a driver found the seed plant on fire.

The plant was substantially damaged, and Harvest States brought a products liability action against Freightliner and the manufacturer of the block heater and cord.  Harvest States contended that the block heater cord became abraded from friction and the inner copper conductors became exposed.  Various chemical solutions from the roads splashed onto the exposed conductors.  When the cord was plugged in to turn the block heater on, the exposed conductors produced heat sufficient to ignite combustible materials located near the cord.  The semi-tractor caught on fire and the fire spread to the seed plant.

Contending that there existed no genuine issue of material fact as to causation, Freightliner moved for summary judgment.  Harvest States offered two explanations of causation that the parties have characterized respectively as the "two conductor theory" and the "one conductor theory."  Harvest States’ initial causation premise was the two-conductor theory.  In its response to Freightliner's summary judgment motion, Harvest States offered the one-conductor theory as an alternative causation premise.  Because this theory was new and was disclosed after the discovery cut‑off, Freightliner objected to the court considering it.

The court granted Freightliner's summary judgment motion, ruling that the evidence as to causation was too speculative to create a genuine fact issue.  Even though the court stated that Harvest States’ disclosure of the one-conductor theory was untimely and could not be considered, the court described the theory nevertheless and ruled that it also was "impermissibly speculative."

On appeal, Harvest States argues that the district court erroneously adopted the Daubert standard, erred in refusing to consider newly conducted tests, and erred in concluding that the new tests were insufficient evidence of a genuine fact issue on causation.


On appeal from summary judgment, we review the record and decide whether there are any genuine issues of material fact to be determined, and whether the trial court erred in its application of the law.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Summary judgment on a claim is mandatory against a party with the burden of proof who fails to show that it can establish an essential element of its claim, because that failure renders all other facts immaterial.  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).  This court will affirm a grant of summary judgment if it can be sustained on any ground.  Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), reviewed denied (Minn. Feb. 13, 1996).

            1.         Harvest States contends that the district court adopted and applied the federal standard in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), in testing the adequacy of Harvest States' experts' opinions on causation.  Minnesota has not formally adopted the Daubert standard.  State v. Alt, 504 N.W.2d 38, 46 (Minn. App. 1993)

In its summary judgment memorandum of July 21, 1999, the court cited Daubert for the proposition that expert evidence admitted under Minn. R. Evid. 702 must be relevant and reliable.  That is consistent with Minnesota law.  See State v. Moore, 458 N.W.2d 90, 97 (Minn. 1990) ("The proponent of a scientific test has the burden of demonstrating its reliability.").  The court did not make the multi-factor analysis required by Daubert and did not rely on that case for any other purpose in ruling on Freightliner's summary judgment motion.  The court did not err by applying an improper standard for the admissibility of expert evidence.

2.         Harvest States next argues that the district court erred in ruling that the causation evidence – under either of the alternative theories – was too speculative to create a genuine issue of material fact.

An "expert must base his opinion on facts sufficient to form an adequate foundation for an opinion and should not be allowed to speculate."  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (1982).  Expert opinions cannot be based on assumptions that cannot be supported by the evidence.  Rochester Wood Specialties, Inc. v. Rions, 286 Minn. 503, 509, 176 N.W.2d 548, 552 (1970).

Harvest States has offered no direct evidence that the block heater cord on the Freightliner semi-tractor caused the fire.  The expert opinions as to causation are posited entirely on circumstantial evidence.  To survive summary judgment, inferences must be "reasonably supported by the available evidence; sheer speculation is not enough, and the inference of * * * causation must outweigh contrary inferences."  Illinois Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216, 221 (Minn. App. 1993).  A fact inference may not depend on the existence of unproved facts.  Johnson v. Lorraine Park Apartments, Inc., 268 Minn. 273, 279, 128 N.W.2d 758, 762 (1964). Liability for a fire "must be based upon inferences reasonably supported by the evidence and not upon speculation based solely on the occurrence of the fire."  Rions, 286 Minn. at 509, 176 N.W.2d at 552.

Either causation theory offered by Harvest States depended on the assumptions that the block heater cord was frayed to such a degree that one or more conductors were exposed, that the fraying occurred not by mishandling the cord but by exposure to chemical abrasives from the road, and that the cord was located closely enough to combustibles to ignite them.  Harvest States offered the inspection of "exemplar" semi-tractors and block heater cords to support the assumptions.  But the exemplar evidence begged the question because the same assumptions had to be made about it.  As the district court noted, the Harvest States' experts did not simulate the conditions that allegedly caused the semi-tractor to catch on fire.  They did not account for differences between the exemplars and the subject semi-tractor and cord.  For the two-conductor theory, they did not test exemplar cords, and they demonstrated combustibility by using an open flame rather than duplicating the arcing process that they theorized.  In support of the one-conductor theory, the electrical engineering expert purports to have tested exemplar cords, and he explains his theory as a possibility of how the fire was caused.  But he does not describe his tests with particularity and does not show how the test conditions simulated the conditions existing in the semi-tractor at the time of the fire.

Although tests and simulations can be admissible to support inferences, the circumstances and conditions must be shown to be substantially similar to those existing at the time of the occurrence.  State v. Darrow, 287 Minn. 230, 234, 177 N.W.2d 778, 781 (1970).

Even if the one-conductor theory may be said to be more plausible as a theory, it is still based on assumptions unsupported by particular facts.  Whether one or two conductors were involved, Harvest States has failed to show anything more than theoretical possibilities to prove causation.  To accept either theory the trier of fact would have to assume facts not proved.  In other words, the trier would have to speculate.  The district court did not err by ruling that Harvest States failed to show the existence of a genuine issue of material fact as to the cause of the fire.