Risie Howard, as Personal Representative of the Estate of Mrs. George Howard, Jr. v. Hormel Foods Corporation, Jim Snee, Chairman of the Board

United States Court of Appeals
For the Eighth Circuit
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No. 24-1298
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Risie Howard, as Personal Representative of the Estate of Mrs. George Howard, Jr.
Plaintiff - Appellant
v.
Hormel Foods Corporation, Jim Snee, Chairman of the Board
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: April 17, 2025
Filed: August 8, 2025
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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KELLY, Circuit Judge.
In October 2019, Vivian Howard passed away after a brief hospitalization.
Risie Howard, Howard’s daughter and personal representative of her mother’s estate
(the Estate),1 brought various state law claims against Hormel Food Corporation
1 Vivian Howard was also known as Mrs. George Howard, Jr., so the Estate’s
name was the Estate of Mrs. George Howard, Jr.

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(Hormel), alleging its products were the cause of death. The district court2 excluded
one of the Estate’s expert reports and granted Hormel’s motion for summary
judgment. The Estate appeals,3 and we affirm.
I.
In September 2019, Howard, 93 years old, was admitted to the hospital, where
she was diagnosed with dysphagia, a condition that makes it difficult to swallow. A
speech therapist recommended that she eat Hormel’s puree-based meals and drink
liquid additives. After discharge, Howard’s caretakers, including her daughter, gave
Howard six Hormel meals every day for the next month, as well as four daily
servings of Hormel additive4 in her water (collectively the “subject products”). The
subject products contained labels that showed the nutritional value of each product,
including the amount and percent recommended daily value of sodium.
On October 15, Howard experienced two cardiac arrests at home and one in
the ambulance on her way to the hospital. At the hospital, she experienced a fourth.
Doctors diagnosed Howard with, among other things, hypernatremia—increased
sodium concentration in the blood. Records showed that Howard’s sodium levels
had been consistently in the normal range prior to her hospitalization. After five days
in the hospital, Howard died on October 20. Risie Howard hired a forensic
pathologist who concluded, after conducting an autopsy, that the cause of death was
bronchopneumonia.
The Estate sued Hormel, alleging claims of strict products liability, breach of
implied warranty, negligence, and wrongful death. The Estate and Hormel each
2 The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
3 We grant the Estate’s uncontested motion to supplement the record.
4 The additive was meant to thicken the water.

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moved to exclude the other’s expert reports, and filed cross-motions for summary
judgment. The district court granted Hormel’s motion to exclude one of the Estate’s
expert reports—Dr. Adel Shaker’s—but denied it as to the rest. The district court
later denied the Estate’s motion for summary judgment and granted Hormel’s
motion for summary judgment on all claims. The Estate appeals.
II.
A.
We begin with the expert evidence. The district court found that the Estate
had failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B) with regard
to Dr. Shaker’s report. Specifically, the district court concluded the report “[did] not
contain an opinion,” and instead “[was] merely a short recitation of facts.” We
review its decision to exclude the report for abuse of discretion. Johnson v. Friesen,
79 F.4th 939, 943 (8th Cir. 2023).
Under Rule 26(a)(2)(B), litigants who retain witnesses to provide expert
testimony must produce a written report containing, among other items, “a complete
statement of all opinions the witness will express and the basis and reasons for
them.” Fed. R. Civ. P. 26(a)(2)(B)(i). A party who fails to timely disclose this
required information may not use the expert’s testimony in a summary judgment
motion, unless such “failure was substantially justified or harmless.” See Fed. R.
Civ. Proc. 37(c)(1); Vandeberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698,
702–04 (8th Cir. 2018) (affirming exclusion of expert report at summary judgment
stage for failure to satisfy Rule 26(a)(2) disclosure requirements).
On appeal, the Estate does not meaningfully challenge the district court’s
finding that Dr. Shaker’s report did not comply with Rule 26. Rather, the Estate
argues Rule 26’s requirements do not apply because it offered the report only for
rebuttal and impeachment purposes. But Rule 26(a)(2)(B)’s disclosure requirements
apply to expert reports used in rebuttal, too. See Fed. R. Civ. P. 26(a)(2)(D) (noting

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that “[a] party must make [Rule 26(a)(2)] disclosures” at certain times, and setting a
default deadline of 30 days5 for expert reports “intended solely to contradict or rebut
evidence on the same subject matter identified by another party” (emphasis added)).
And while “Rule 26 does not require the disclosure of evidence used solely for
impeachment purposes,” Wegener v. Johnson, 527 F.3d 687, 690 (8th Cir. 2008),
the Estate has not articulated how Dr. Shaker’s report could have served as
impeachment evidence. Instead, the Estate offers cursory assertions that Dr. Shaker
“was scheduled to provide . . . impeachment testimony” and “[t]herefore . . . no
disclosure of his impeachment evidence” was needed. A review of Dr. Shaker’s
report and Hormel’s retained expert’s report shows that, at times, they are consistent
and, at other times, they address entirely different matters. In short, the Estate has
failed to show how “facts asserted or relied upon in [Hormel’s expert] testimony are
false.” Id. at 691. Therefore, Rule 26(a)(2)(B)’s disclosure requirements applied to
Dr. Shaker’s report, and the Estate did not sufficiently explain why its failure to
comply was substantially justified or harmless. The district court did not abuse its
discretion in excluding the report.6
B.
Next, we turn to the district court’s grant of summary judgment to Hormel.
We review this decision de novo, viewing the record in the light most favorable to
5 Of course, if a report is offered solely for rebuttal purposes, then the default
deadline for when the disclosure is due changes accordingly. Compare Fed. R. Civ.
P. 26(a)(2)(D)(i), with Fed. R. Civ. P. 26(a)(2)(D)(ii). But even if Dr. Shaker’s report
was properly classified as rebuttal evidence, the Estate also failed to meet the 30-
day deadline, as the Estate did not comply with the disclosure requirements at all.
6 We need not address the Estate’s arguments that Dr. Shaker’s opinions, to
the extent he offered any, would be admissible under Federal Rule of Evidence 702.
The requirements under Federal Rule of Civil Procedure 26(a)(2)(B) must be
satisfied regardless of whether an expert’s opinions are ultimately admissible under
Federal Rule of Evidence 702. Cf. Friesen, 79 F.4th at 941 n.2, 943–44 (noting one
expert was excluded under Rule 702 and another expert was excluded under Rule
26(a)(2)(B)).

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the Estate and giving the Estate the benefit of all reasonable inferences. Richardson
v. Omaha Sch. Dist., 957 F.3d 869, 876 (8th Cir. 2020). “Summary judgment is only
appropriate if ‘there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Cincinnati Ins. Co. v. Jacob Rieger & Co.,
58 F.4th 386, 390 (8th Cir. 2023) (quoting Fed. R. Civ. P. 56(a)). In this diversity
suit, we apply Arkansas substantive law and follow the decisions of the Arkansas
Supreme Court. See Olmsted Med. Ctr. v. Cont’l Cas. Co., 65 F.4th 1005, 1008 (8th
Cir. 2023).
1.
We first consider the Estate’s products liability claims. Under Arkansas law,
to prove a products liability claim, the Estate must show, among other things, that
the product was defective. See Lakeview Country Club, Inc. v. Superior Prods., 926
S.W.2d 428, 431 (Ark. 1996); Pilcher v. Suttle Equip. Co., 223 S.W.3d 789, 794
(Ark. 2006) (listing elements of product liability claim). Even if the product was
defective, the Estate must also show the defect rendered the product “unreasonably
dangerous.” Farm Bureau Ins. Co. v. Case Corp., 878 S.W.2d 741, 744 (Ark. 1994);
see also Ark. Code. Ann. § 16-116-202(7)(A) (2016) (defining “unreasonably
dangerous”). Arkansas law generally recognizes “three varieties of product defects:
manufacturing defects, design defects, and inadequate warnings.” West v. Searle &
Co., 806 S.W.2d 608, 610 (Ark. 1991) (“West I”). The Estate alleged manufacturing
defect and failure to warn claims.
Starting with the manufacturing defect claim, the Estate argues the subject
products are defective because they “are unreasonably dangerous due to the high
level of sodium in them.” Here, the record shows that each of the individual subject
meals contained roughly twenty percent of the daily recommended sodium intake,
and that one serving of the additive contained less than ten percent, at most. The
Estate has not presented any evidence or expert testimony to show that these amounts
made the products defective, or that any such defect was unreasonably dangerous.
See Lakeview, 926 S.W.2d at 431; Farm Bureau, 878 S.W.2d at 744. The Estate also

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asserts “[c]onsumers use [the subject products] in combination” and that “their
combined effect is deadly.” But the Estate has failed to offer legal or evidentiary
support for its assertion that evaluating the subject products’ defectiveness, or
dangerousness, turns on the amount of sodium from the combined consumption, as
opposed to the amount consumed from one individual subject product. The district
court did not err in granting summary judgment on the Estate’s manufacturing design
claim.7
Turning to the Estate’s defective warning claim, generally “a manufacturer
has a duty to warn the ultimate user of the risks of its product.” West I, 806 S.W.2d
at 613. The Estate argues the subject products should have included a warning about
the products’ sodium levels, the number of meals to consume daily, and the
cumulative effects of consuming multiple products in one day. The Estate points out
that Hormel advertises many of the subject products for patients with difficulty
swallowing, and that Hormel’s expert agreed elderly patients with dysphagia are at
an increased risk of dehydration and hypernatremia. But the Estate failed to submit
expert testimony on whether the subject products’ sodium levels, even for
individuals with dysphagia, were unreasonably dangerous. Because making these
determinations is outside the ordinary common experience of a juror, the failure to
offer expert testimony in support is fatal to the claim.8 See Dancy v. Hyster Co., 127
F.3d 649, 653 (8th Cir. 1997) (applying Arkansas law and holding expert testimony
7 The district court alternatively evaluated the Estate’s claim based on res ipsa
loquitur principles. On appeal, the Estate makes only undeveloped, passing
references to res ipsa loquitur, so we do not consider this issue. See Sturgis
Motorcycle Rally, Inc. v. Rushmore Photo & Gifts, 908 F.3d 313, 324 (8th Cir.
2018).
8 Even if expert testimony may not be necessary to prove that food labels were
defective if the labels were inaccurate, cf. Watts v. St. Edward Mercy Med. Ctr., 49
S.W.3d 149, 410–11 (Ark. Ct. App. 2001) (holding plaintiff did not need to provide
expert testimony on her claim that her broken hip caused pain), the Estate does not
dispute that the subject products’ nutritional labels accurately reflected the sodium
levels in the subject products.

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was required to establish design defect because jurors do not likely have a “‘common
understanding’ about how products are designed”); see also Mitchell v. Lincoln, 237
S.W.3d 455, 460 (Ark. 2006) (collecting cases holding that expert medical testimony
is generally required in malpractice cases because “alleged medical negligence is not
within the comprehension of a [lay] jury”). Without sufficient evidence to show the
subject products were unreasonably dangerous for individuals with dysphagia, the
Estate cannot show it was unreasonably dangerous to not include additional
warnings. The district court properly granted summary judgment to Hormel on the
Estate’s failure to warn claim.
2.
Next, we address the Estate’s breach of implied warranty claim. To prove
breach of the implied warranty of merchantability, “a plaintiff must prove that [she]
sustained damages, that the product was not fit for its ordinary purpose, that the
unfitness was the proximate cause of h[er] damages, and that [she] is someone
reasonably expected to use the product.” Lakeview, 926 S.W.2d at 431. The Estate’s
argument on this claim is premised on the same argument it raised for the defective
manufacturing claim: that the subject products were defective and unreasonably
dangerous. See Madden, 481 S.W.3d at 460 (“[B]reach of warranty and strict
products liability claims are ‘essentially the same’ insofar as both require a product
defect attributable to the defendant.” (quoting Higgins v. Gen. Motors Corp., 699
S.W.2d 741, 743 (Ark. 1985))). Because the Estate failed to submit sufficient
evidence that the subject products were defective and unreasonably dangerous, the
district court did not err in granting summary judgment to Hormel on this claim.
3.
We turn to the Estate’s negligence claim. To prove negligence, a plaintiff must
establish “that the defendant owed a duty to the plaintiff, that the defendant breached
the duty, and that the breach was the proximate cause of the plaintiff’s injuries.”
Duran v. Sw. Ark. Elec. Coop. Corp., 537 S.W.3d 722, 726 (Ark. 2018). Ordinarily,

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Arkansas law requires a plaintiff to submit proof of negligence; it is not enough to
infer negligence simply from the fact that an accident occurred. See Mangrum v.
Pigue, 198 S.W.3d 496, 386–87 (Ark. 2004). Here, the Estate submitted no evidence
of how Hormel produced the subject products, much less whether Hormel failed to
exercise proper care in doing so. The district court properly granted summary
judgment to Hormel on the negligence claim.9
4.
We end with the Estate’s wrongful death claim. Because the district court
properly granted summary judgment on the Estate’s underlying tort claims—claims
based on products liability, breach of implied warranty, and negligence—summary
judgment was proper on the Estate’s wrongful death claim too. See Howard v.
United States, 964 F.3d 712, 718 (8th Cir. 2020) (applying Arkansas law and
explaining that “[i]n the absence of an underlying tort claim, we agree with the
district court that [the Estate] cannot sustain a wrongful death claim”).
III.
We affirm.
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9 As discussed above, we decline to evaluate whether res ipsa loquitur applies.

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