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From Products Liability Law Daily, August 13, 2013

Evidence of similar incidents was properly excluded in exploding rifle suit, but not plaintiffs’ experts

By Georgia D. Koutouzos, J.D.

A federal trial court did not abuse its discretion by excluding evidence of similar explosions involving a certain model of muzzleloading rifle in a products liability action involving the rifle, but the exclusion of the plaintiffs’ two experts was error, a federal appellate panel determined in an unpublished decision reversing and remanding the trial court’s grant of summary judgment favoring the gun maker (Palatka v. Savage Arms, Inc., August 9, 2013, Russell, T.).

Background. Rodney Palatka lost two fingers from his left hand and severely damaged his right thumb when a borrowed 10ML-II muzzleloading rifle exploded while he was “sighting-in” the gun while on a deer hunting trip. The trauma surrounding the accident allegedly caused Rodney’s wife, Joanie, who was pregnant at the time, to miscarry and lose their twin babies. The Palatkas filed suit in Michigan federal court against the rifle’s manufacturer, Savage Arms, Inc., and Savage Arms Company (hereinafter “Savage Arms”), asserting claims for design defect, manufacturing defect, failure to warn, and breach of express and implied warranties. Joanie also filed a claim for loss of consortium. Savage Arms denied all liability, arguing that Rodney’s injuries likely had resulted from user error.

The trial court granted summary judgment in favor of Savage Arms after having excluded two categories of evidence proffered by the Palatkas: (1) allegedly similar incidents involving other 10ML-II rifles; and (2) causation experts Dr. Clarke Radcliffe and Dr. Martin Crimp. The Palatkas appealed those exclusions, contending that had the evidence in question been admitted, it would have established genuine issues of material fact that precluded summary judgment.

Similar incidents. The trial court did not abuse its discretion by excluding evidence of allegedly similar incidents involving other 10ML-II rifles, the appellate panel determined. In that regard, the Palatkas had identified two cases in which Savage Arms had been sued by individuals who allegedly sustained personal injuries when their 10ML-IIs exploded during use as well as eight other incidents in which 10ML-II barrels had failed that they had proffered for the purpose of proving that the rifle was defective, that Savage Arms knew that it was defective, and that the manufacturer had failed to warn users of the defect. The trial court excluded the evidence as inadmissible on the basis that: (1) the Palatkas failed to demonstrate that the other incidents were substantially similar to the facts of the instant case; (2) even if the other incidents were similar, the probative value of the evidence was substantially outweighed by a danger of unfair prejudice, confusion, or misleading the jury, etc.

None of the incidents cited by the Palatkas had been reduced to a judgment, nor had the incidents’ cause been determined, the appellate panel remarked. Furthermore, if the evidence at issue was admitted, mini-trials would have been necessary in order to determine causation. As such, the trial court appropriately reasoned that trying those incidents within the context of the case at bar would have delayed the trial, misled the jury, and directed them away from the dispositive issue in the Palatkas’ case, the appeals court observed, concluding that the trial court did not abuse its discretion by excluding the allegedly similar incidents.

Expert testimony. The trial court did abuse its discretion by excluding the testimony of Dr. Radcliffe and Dr. Crimp, however, the appellate panel found, reasoning that the Palatkas’ two experts were qualified and offered reliable opinions that would have helped the jury weigh the issues and apply Michigan’s products liability law.

The trial court erroneously excluded Dr. Radcliffe’s viewpoint as to the design and manufacturing of the 10ML-II rifle on the grounds that it would not assist the jury in determining whether the rifle had been defectively designed or manufactured, the appellate panel said. Upon examination, Radcliffe found that the rear sight hole in the 10ML-II at issue was deeper than specified, and he reasoned that the additional depth had increased stress on the rifle’s barrel, resulting in its failure and Rodney’s injuries. This opinion complied with the requirements of Michigan law and should have been admitted, the panel advised, noting that Michigan requires a plaintiff to prove a manufacturing defect by showing that the product was not manufactured in conformity with the manufacturer’s specifications and that the nonconformity caused the plaintiff’s injuries.

Moreover, the trial court’s issue with Radcliffe’s purported lack of testing of his design alternative and his lack of knowledge concerning the amount of pressure generated in the barrel during firing did not justify excluding of his opinion, the appellate panel held, adding that how the expert had arrived at that theory could be explored during the process of witness examination and cross-examination at trial.

Similarly admissible were the opinions of Dr. Crimp, the appeals court opined, ruling that the trial court erred in determining that Crimp’s testimony should be excluded because he could not identify the proximate cause of the barrel’s failure and because he did not propose a feasible alternative design that would have prevented the accident. After examining the barrel, Crimp found that the stainless steel used in the barrel was anisotropic (i.e., possessing different properties throughout the body of the material) and had greater levels of sulfur than recommended for that type of stainless steel, resulting in “intergranular fractures” that rendered the material flawed from a metallurgical standpoint. Thus, the proximate cause of the barrel’s failure was the use of a metal that was inappropriate for gun barrels, the appeals court instructed, noting that Crimp’s testimony that other, less anisotropic stainless steel would be less likely to fail constituted an opinion as to alternate design.

Because the trial court improperly excluded Palatka’s two experts, the grant of summary judgment favoring Savage Arms on the design defect, manufacturing defect, and failure to warn claims was reversed and remanded, the appellate panel ruled.

The case number is 12-1475.

Attorneys: Timothy Henry McCarthy, Jr., for Palatka. Anthony M. Pisciotti (Pisciotti, Malsch & Buckley) and Anthony G. Arnone (Kitch, Drutchas, Wagner, Valitutti & Sherbrook) for Savage Arms, Inc. and Savage Arms Co. Companies: Savage Arms, Inc.; Savage Arms Co.

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