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From Products Liability Law Daily, July 11, 2014

Exceptions to Indiana repose period did not save hunter’s rifle defect claims

By Pamela C. Maloney, J.D.

The Indiana statute of repose barred a products liability action brought by a hunter against the maker of a muzzleloading rifle because the hunter failed to prove that one of two exceptions that could reset the limitations period applied in this case, the U.S. Court of Appeals ruled, affirming the decision of the district court. The 7th Circuit also affirmed the trial court’s exclusion of testimony by the hunter’s gunsmith expert (Hartman v. EBSCO Industries, Inc., July 10, 2014, Flaum, J.).

Background. The hunter, Adam Hartman, had been given an LK-93 Wolverine muzzleloading rifle manufactured by KR Warranty, Inc., when he was 10 years old and had used the rifle for many years without incident. Thirteen years after he first received the rifle, Hartman purchased and installed on the rifle a telescopic lens and a conversion kit, which included a breech plug and a bolt and dual safety system. The purpose of the conversion kit was to deliver a hotter spark to more reliably ignite Pyrodex pellets that were used as an alternative to black gunpowder. During a reloading conducted by the hunter after he had fired two shots, the rifle unexpectedly discharged as he was attempting to seat a patched round ball using a ramrod. The bullet and ramrod passed through the hunter’s left hand, right hand, and right forearm. In the ensuing products liability action, the firearms manufacturer argued that the hunter’s claims were barred by the statute of repose. The federal court in Indiana agreed, dismissing the hunter’s claims.

Statute of repose. The Indiana statute of repose bars products liability claims seeking damages for injuries that occurred more than 10 years after the product was first placed into commerce. The Indiana courts have recognized two exceptions to the repose period. First, any reconstruction or recondition that had the effect of lengthening the useful life of a product beyond what was contemplated when the product was first sold will restart the statute of repose period anew. Second, the incorporation of a defective component into an old product will remove the protection that the statute of repose provided the old product.

Useful safe life exception. The 7th Circuit, like the district court, rejected the hunter’s argument that the installation of the conversion kit radically altered the rifle so as to reconstruct or recondition it to the point that it became an entirely new rifle. According to the hunter’s expert, the only useful metric of the muzzleloader’s lifespan was its barrel and bore. In light of this testimony, the appellate court concluded that even though the conversion kit might have made the rifle more powerful, it had no effect on either the barrel or the bore and, thus, had no effect on how long the rifle would be usable.

The court further determined that the modifications made by the conversion kit qualified as upgrades to the product, not as a reconstruction or recondition that would extend the gun’s useful life. Finally, the court noted that the usual cases involving this exception involve a manufacturer-refurbished product. The court was unaware of any cases in which a manufacturer was held responsible for selling a non-defective new component that was installed incorrectly by the consumer or a third party. Thus, the first exception did not apply to extend the repose period.

Defective new component exception. The appellate court also found that the facts did not support the hunter’s argument under the second exception, which required a finding that the conversion kit itself was defective. The hunter argued that the conversion kit contained two product defects: a failure to warn and a design defect. In support of his failure-to-warn claim, the hunter argued that the manufacturer should have warned him about the dangers of latent embers when it sold him the conversion kit. To succeed on this claim and on the design defect claim, the court explained that the hunter was required to prove that the conversion kit increased the risk of latent embers or unexpected discharge beyond what already existed in the rifle. If he could not prove an increased risk, then the manufacturer’s duty to warn, if any, arose at the time the kit was sold and the hunter’s warning claim would be barred by the statute of repose.

In order to determine whether the conversion kit actually increased the risk, the appellate court reviewed the district court’s exclusion of testimony by the hunter’s expert—a gunsmith—who opined that either the conversion kit itself was defective or that its installation rendered the rifle defective. The 7th Circuit found no abuse in the lower court’s determination that the gunsmith’s testimony was unreliable on this issue because he offered no evidence that his opinion had been tested, had been subjected to peer review or publication, or had been accepted in the relevant community. For these same reasons, the district court’s exclusion of the expert’s alternative design theory was proper as well. Finally, it was undisputed that on the date of the accident, the hunter had not swabbed the barrel of his rifle using a jag. Thus, even if the alternate jag had extinguished the latent embers believed to be the cause of the unexpected discharge, a different jag would not have prevented the accident.

Because the exclusion of the gunsmith’s testimony was proper, the hunter offered no evidence to support his theory that the rifle and or the conversion kit were defective. Thus, the second exception to the Indiana statute of repose did not apply.

Claims against EBSCO. The appellate court added that even if the hunter were able to survive summary judgment against KR Warranty, his claims against EBSCO, the company that had acquired the stock of KR Warranty’s corporate predecessor, failed because EBSCO had nothing to do with the rifle or the conversion kit.

The case number is 13-3398.

Attorneys: Gary A. Eaton (Eaton & Sparks) for Adam Hartman. James Ronald Shaw (Huie Fernambucq & Stewart), Douglas K. Dieterly (Barnes & Thornburg LLP), and Mark D. Gerth (Kightlinger & Gray LLP) for EBSCO Industries, Inc., and KR Warranty, Inc.

Companies: EBSCO Industries Inc.; KR Warranty, Inc.

MainStory: TopStory SofLReposeNews DesignManufacturingNews WarningsNews WeaponsFirearmsNews IllinoisNews IndianaNews WisconsinNews

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