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From Products Liability Law Daily, July 30, 2014

Trial court misfired in excluding expert’s testimony in revolver accident

By Susan Lasser, J.D.

In a products liability action against the manufacturer of a revolver, which misfired when a gun owner-user pulled its trigger, the trial court’s exclusion of the user’s expert’s testimony because the expert’s theory was not consistent with aspects of the user’s own memory of the incident was improper, the U.S. Court of Appeals for the Sixth Circuit ruled. The user alleged a defect in the revolver caused the misfiring and his resulting injuries. Because the cause of the user’s injury was the fact at issue in the case, notwithstanding that the user’s memory contradicted his own expert’s theory of the occurrence, the appellate court reversed the lower court’s exclusion of the expert’s testimony and remanded the matter for further proceedings (Lee v. Smith & Wesson Corp., July 29, 2014, Rogers, J.).

Background. Mark Lee was injured in an accident while target shooting with a 460XVR revolver, which was designed, manufactured, and distributed by Smith & Wesson Corporation. Lee successfully fired the gun twice, but on his third shot, the gun discharged improperly, seriously injuring his right eye, face, and nose. According to Lee, the gun cylinder swung open and caused the blast from the shot to knock off his safety glasses and damage his right eye, leading to loss of vision and significant eye pain. Lee and his wife, Cynthia Lee, brought suit against Smith & Wesson in Ohio state court, under the Ohio Product Liability Act, alleging that he was permanently injured from the shooting accident, and that the revolver was defective in its manufacture, design, lack of adequate warnings, and in not conforming to representations made by Smith & Wesson. Smith & Wesson claimed that Lee’s injuries were caused by recoil, and the company removed the action to a federal district court in Ohio.

Expert testimony. In support of his claims, Lee sought to introduce the expert testimony of mechanical engineer, Roy Ruel. After examining Lee’s revolver and reviewing all relevant material, Ruel concluded that Lee’s accident was the result of the revolver’s firing without its cylinder being fully closed and locked—a condition which he said caused hot, high pressure gas to be expelled from the revolver when fired, striking Lee in the face and causing his injuries. Ruel concluded that the revolver was defective in both manufacture and design because (1) it could be cocked and fired with a pull of the trigger without its cylinder closed and locked, and (2) its ejector rod could become loose, thereby preventing its cylinder from closing and locking due to mechanical interference.

The expert explained that the evidence of the gun’s cylinder falling open after the accident supported the assertion that the gun’s cylinder was not closed and locked during the incident. Also, he said, “That chamber pressure exceeded design was evidenced by the spent case being difficult to remove and had to be pried out after Mr. Lee’s accident.” When Ruel examined the accident revolver, he found that it “could be cocked ready to fire by a pull of the trigger without its cylinder being fully closed.” Ruel further determined that Lee’s revolver’s ejector rod, even though it was screwed in place, was not secure and could be loosened easily by fingers alone. He said that the ejector rod had become loose on Lee’s revolver prior to the accident, and then when the ejector rod loosened, “it initially caused the cylinder and yoke to bind making closing of the cylinder difficult and then prevented it from fully closing and locking.” Ruel found that this was what occurred and what caused the accident. Ruel additionally determined that Smith & Wesson failed to provide adequate warnings about the allegedly defective condition.

Federal district court ruling. Smith & Wesson sought to exclude the expert’s testimony, arguing that it did not satisfy the relevancy requirement of Federal Rule of Evidence 702. The manufacturer asserted that there were inconsistencies between the expert’s reconstruction of the incident and the gun user’s testimony. The district court agreed that the expert’s testimony failed to satisfy the relevancy requirement set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, codified in Rule 702. The court based its ruling on the following inconsistencies between the user’s deposition testimony and the expert’s opinion: (1) the user testified that he had no difficulty firing the gun the third time, whereas the expert stated that the gun did not immediately fire because the cylinder failed to close fully; (2) the user testified that the cylinder was closed when he fired the gun, whereas the expert stated that it was open but appeared to be closed; and (3) the user’s demonstration of his grip on the gun showed that he did not touch the thumb latch, whereas the expert stated that the user pushed on the thumb latch. Also, the user testified that he was able to close the cylinder “when [he] rechambered the third round,” that it opened and closed normally, that he noticed nothing different when loading the third round, and that the gun fired just as it had every other time, except that the result was different.

Exclusion of expert testimony reversed. The Sixth Circuit held that the expert’s testimony should have been admitted. The appellate court found that the expert had the appropriate qualifications and used reliable methods. Also, his opinion was based on physical evidence from the accident. The court found that the expert’s theory was based on the facts conveyed by the physical evidence (the gun), and that he used reliable scientific methods in rendering his opinion. Moreover, he reviewed the revolver itself, many reports and witness accounts of the accident, the user’s medical reports, and photos of the weapon in preparing his report.

Although the user’s testimony differed from the expert’s opinion in their descriptions of the mechanics of the firing of the weapon (the user testified that he closed the cylinder, locked it into place, cocked the hammer, pulled the trigger, and fired; while the expert opined that the cylinder was open when the gun was fired), under Ohio law, a party is not precluded from proving his or her case “by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him.”

In the appellate court’s assessment, the expert planned to testify that the gun was defective in design and manufacture because it could be cocked and fired with a pull of the trigger while the cylinder was not closed and locked; that its ejector rod could become loose, preventing its cylinder from closing and locking; and that the gun maker failed to provide adequate warning that the gun could be fired without the cylinder closed and locked and of the hazard of hot gases being ejected by the gun when it was fired without the cylinder closed and locked. According to the appellate court, if the user was mistaken about whether he fully closed the cylinder, the expert’s testimony would be “highly relevant” in determining whether the gun was defective. Further, the court noted that a jury presented with no believable alternative explanation could believe that the user’s testimony was wrong—that the user thought he had closed the chamber but in fact did not and had overlooked the opening. Other evidence supporting the expert’s theory was testimony by the user’s friend, to whom the user handed the gun after the misfire, that the cylinder was open when the gun was handed to him. Another witness confirmed that the chamber was open after the incident. Under these circumstances, the court of appeals ruled that the expert’s evidence should have been admitted, a conclusion supported by a prior Sixth Circuit decision.

Finally, the appellate court observed that both the user’s memory of the incident and the expert’s conclusions were contrary to the manufacturer’s argument that the injury was caused by heavy recoil. Therefore, the court found that the central factual issue in the case—the cause of the user’s injury—still was in dispute, and that “the mismatch” between the user’s testimony and the expert’s theory of whether the cylinder was fully closed should not have precluded the admissibility of the expert’s opinion. Therefore, the court of appeals reversed the trial court’s judgment and remanded for further proceedings.

Dissent. Circuit Judge Damon Keith dissented, finding that the district court judge properly exercised his discretion in exercising his “gatekeeping duties” required under Rule 702 and Daubert when he excluded the expert’s testimony on the basis that it did not “fit” the facts of the case. Thus, he determined that the expert’s testimony did not satisfy the relevancy requirement under the federal rules of evidence.

The case number is 13-3597.

Attorneys: Brittany L. Lee for Mark D. Lee. Clem C. Trischler, Jr. for Smith & Wesson Corp.

Companies: Smith & Wesson Corp.

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