Shearouse v. Remington Arms Company, LLC, No. 4:2017cv00107 - Document 54 (S.D. Ga. 2019)
Court Description: ORDER denying 32 Motion to Exclude the Testimony and Causation Opinion ofPlaintiff's Liability Expert and Incorporated Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 10/11/2019. (evk)
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Shearouse v. Remington Arms Company, LLC Doc. 54 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA^ np.T Ifl SAVANNAH DIVISION CODY SHEAROUSE, Plaintiff, CASE NO. CV417-107 V. REMINGTON ARMS COMPANY, LLC, Defendant. ORDER Before the Court is Defendant's Motion to Exclude the Testimony and Causation Opinion of Plaintiff s Liability Expert and Incorporated Motion for Summary Judgment. (Doc. 32.) For the following reasons. Defendant's motion (Doc. 32) is DENIED. BACKGROUND This case involves an alleged product defect in Defendant's Remington Model 770 rifle. (Doc. 1.) Plaintiff, at the time of the incident, was twenty years old and had been hunting with his father from a young age. (Doc. 38 at H 13; Doc. 45 at f 13.) On July 26, 2015, Plaintiff planned to shoot a turtle that had been eating the fish in a pond behind his house and went to retrieve his Remington Model 770 (the "Shearouse gun") from the gun case. (Doc. 38 at SI 14-15; Doc. 45 at SI 14-15.) Plaintiff claims that he loaded the magazine, put the magazine in the gun, walked to the back porch, closed the bolt to chamber a round and then the Dockets.Justia.com rifle discharged without Plaintiff pulling the trigger. (Doc. 38 at K 15; Doc. 45 at f 15.)^ The bullet from the Shearouse gun fired through Plaintiff's right foot. (Doc. 38 at 1 16; Doc. 45 at f 16.) Plaintiff seeks recovery in this products liability action under theories of strict liability, negligence, and a breach of the duty to warn. (Doc. 1.) Plaintiff pursues theories of manufacturing defect, design defect, and breach of the duty to warn. (Id.) Both parties have retained experts to testify. Plaintiff has retained Jack Belk as a liability expert. (Doc. 38 at 31 20.) Plaintiff and Plaintiff's liability expert. Jack Belk, believe that the rifle was defectively manufactured and designed. (Doc. 38 at 31 20; Doc. 45 at 31 20.) Specifically, they contend that the Shearouse gun contained a manufacturing defect in that the trigger spring was misaligned which "resulted in the adjoining parts interfering misaligned with trigger the spring spring." (Doc. "created a 38 at 31 22.) situation The where interference would ultimately cause the trigger spring to fail to fully push the trigger into a safe engagement after firing, 1 Defendant objects to Plaintiff's factual assertion that he did not pull the trigger because Plaintiff allegedly admitted to an officer on the day of the injury that he did pull the trigger to see if the safety was on. (Doc. 45 at 31 13.) However, for purposes of evaluating a motion for summary judgment, this Court does not weigh the evidence and must take the non-movants facts as true. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 577-78 (1986). causing (Id.) the rifle Plaintiff contained two to fire and Belk design without the trigger also contend defects. that being the pulled." Shearouse The first design gun defect is the "absence of a recess or lug to hold the trigger return spring in place and prevent it from becoming misaligned and interfering with the surrounding parts." (Id. at 1 23.) The second design defect is "the use of a square nosed trigger pull screw instead of a round or domed friction and the edge a of concluded which risk square the pull screw, of interference nosed that these caused trigger pull rifle to with screw." defects "resulted fire on which the (Id. in an bolt would spring at I on 24.) unsafe closure reduce the Belk engagement without the trigger being pulled." (Id. at SI 25.) Defendant, of course, rejects these contentions and moves to exclude Belk's opinion as to causation. Specifically, Defendant contends that Belk's opinion that the misalignment of the trigger spring in the rifle's trigger mechanism caused the sear and the trigger to disengage which led to a fire on bolt closure is inadmissible Pharmaceuticals, 509 U.S. under 579 Daubert (1993). v. (Doc. Merrell 35 at Dow 12-17.) Defendant asserts that Belk's opinions are inadmissible because "Belk has testing, no to reliable validate basis, his let alone hypothesis supportive that, at the scientific moment of Plaintiff s shooting, the rifle fired without a trigger pull due to any defect in the trigger mechanism, rather than" simply firing when the trigger was pulled. (Doc. 35 at 1.) Defendant contends trigger that Belk's spring is causation not theory reliable because about the his misaligned theory is not supported by physical evidence and testing. (Id. at 12.) Plaintiff objects to the exclusion of Belk's causation opinion and contends that Belk's expert testimony falls into the ^"technical" or ^'other specialized knowledge" categories of expert testimony permitted under Federal Rule of Evidence 702. (Doc. 37 at 12.) Plaintiff argues that Belk's opinion does rely on testing, namely the x-ray film of the internal parts of the Shearouse gun, and that the films clearly show that the trigger return spring is misaligned. (Id.) Plaintiff contends that Belk came to his opinion by his experience and knowledge as a gunsmith in that he can mechanically examine the rifle, examine the films showing the location of internal parts and determine if any parts are out of place, and then predict how the trigger will perform. (Id. at 14.) In conjunction with its motion to exclude the testimony of Belk, Defendant argues that, without admissible expert opinion testimony on the element of causation. Plaintiff lacks sufficient proof to take his case to trial and that Defendant is entitled Plaintiff to summary opposes judgment summary in its judgment favor. and (Doc. argues 35 that at 17.) Belk's opinion is admissible under Daubert. {Doc. 37 at 17.) Plaintiff also argues that, even if Belk's testimony is excluded, summary judgment is not proper because Defendant's expert admitted that the Shearouse gun would only fire because the trigger was pulled or because of a defect. (Id.) Thus, as Plaintiff has testified in his deposition that he did not pull the trigger, the "determination of whether or not Plaintiff pulled the trigger is a fact question that must be decided by a jury." (Id. at 17-18.) STANDARD OF REVIEW Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The "purpose of summary judgment is to ^pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d committee 538 (1986) notes). (citing Summary Fed. judgment R. is Civ. P. 56 appropriate advisory when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that Celotex party Corp. v. will bear Catrett, 477 the burden U.S. 317, of 322, proof at 106 S. trial." Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The substantive law governing the action determines whether an element is essential. DeLong Equip. Co. V. Mash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989). As the Supreme Court explained: [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The Court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587-88, 106 S. Ct. at 1356. However, the nonmoving party ^'must do more than simply show that there is some material facts." Id., 475 U.S. metaphysical at 586, doubt 106 S. Ct. as at to the 1356. A mere "scintilla" of evidence, or simply conclusory allegations, will not suffice. See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir. fact finder may "draw 1998). Nevertheless, where a reasonable more than one inference from the facts. and then that inference the Court creates a should genuine refuse to issue grant of material summary fact, judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989). ANALYSIS I. DEFENDANT'S MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFF^S LIABILITY EXPERT The admission of expert testimony is controlled by Federal Rule of Evidence 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. "As the Supreme Court made abundantly clear in Daubert, Rule 702 compels function district concerning evidence." Cir. to the perform the admissibility critical of expert gatekeeping scientific United States v. Frazier, 387 F.3d 1244, 1260 (11th 2004) function courts (internal equally quotation applies to omitted). the This admissibility gatekeeping of expert technical evidence. Id.; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S. Ct. 1167, 1174-75, 143 L. Ed. 2d 238 (1999). The Eleventh Circuit Court of Appeals has explained that district courts fulfill that function by engaging in a threepart inquiry, considering whether (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as to be determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific . . . expertise, to understand the evidence or to determine a fact in issue. Frazier, 387 F.3d at 1260. Here, Defendant raises an issue concerning the second prong: whether Belk's causation opinion is sufficiently reliable under Daubert. When expert's a court opinion, considers it whether the expert's whether the theory publication; (3) the the considers, theory has known or of a particular to the extent be and has been tested; (2) subjected to peer review and can been reliability possible, (1) potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Quiet Tech. DC-8, Inc. V. Hurel-Dubois, UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)(citing McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)). a These factors "do not constitute Mefinitive checklist or test.' " Kumho Tire, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 593). Rather, the applicability of these factors "depends upon the particular circumstances of the particular case at issue." Id. The same criteria that are used to assess the reliability of a scientific opinion may be used to evaluate the reliability of non-scientific, experiencebased testimony. Frazier, 387 F.3d at 1262. A. Belk^s Causation Opinion The override Remington trigger. Model (Doc. 770 37 bolt at action 3.) This rifle kind contains an trigger is of designed for the sear to rest on top of the trigger. (Id.) The overlap between the sear and the trigger is referred to as the engagement. (Id.) When the trigger is pulled with the requisite force, the force disengages the trigger from under the sear, which allows the firing pin head to override the sear. (Doc. 35 at 5.) The trigger return spring slides onto the trigger pull screw and is intended to rest flush on the face of the trigger. (Doc. 37 spring at 3.) After pushes the the trigger rifle back is fired, under the the sear, trigger return resetting the engagement. (Id.) An engagement of .031 inches is considered a safe engagement for the Remington Model 770 and an unsafe engagement is anything less than .005 inches. (Id. at 4.) In this case, Belk contends that the Shearouse gun contained a manufacturing defect in that the trigger spring was misaligned with the which "resulted spring." (Doc. 38 in the at 1 adjoining 22.) The parts interfering misaligned trigger spring "created a situation where interference would ultimately cause the trigger spring to fail to fully push the trigger into a safe without engagement the opinion, after trigger Belk firing, being physically causing pulled." inspected (Id.) the the rifle to fire In coming to this North Star rifle at Images and reviewed X-ray films taken of the Shearouse gun which depicted a misaligned trigger spring. (Doc. 50, Attach. 1.) Belk testified that in his fifty years of experience, he had "never seen a trigger this bad." (Doc. 37, Attach. 5 at 21.) Plaintiff contained and Belk two design also contend defects. The that first the Shearouse design gun defect is the "absence of a recess or lug to hold the trigger return spring in place and prevent it from becoming misaligned and interfering with the surrounding parts." (Id. at 1 23.) The second design defect is "the use of a square nosed trigger pull screw instead of a round or domed friction and the edge a of risk square trigger pull screw, of interference nosed pull with screw." caused the rifle to fire on the (Id. concluded that these defects "resulted in which which bolt an would spring at SI reduce on 24.) the Belk unsafe engagement closure without the trigger being pulled." (Id. at SI 25.) Defendant only challenges the causation opinion of Belk that a misaligned trigger spring in the Shearouse gun caused the rifle to fire without a trigger pull. (Doc. 35 at 11-17.) Specifically, Defendant contends that Belk's "opinion that such 10 a defect caused this shooting does not "fit" the facts of the case, and is not based on any reliable scientific method or testing." (Id. at 11.) Defendant also argues that the opinion should be excluded plausible because explanation for Belk the cannot exclude shooting—namely, the other pulling the trigger while the safety was in the "OFF" or "FIRE" position. (Id.) Thus, Defendant does not appear to challenge Belk's design or manufacturing opinion that defect the opinion manufacturing but solely defect challenges caused the the injury to Plaintiff. 1. Defendant's the case contention and is that not the based defect on does reliable not "fit" scientific method Defendant urges this Court to find that Belk's opinion is unreliable speculation. Defendant points to the testing on the Shearouse gun by Belk and Remington's expert, Derek Watkins, after the accident to show that the Shearouse gun only operates as intended: firing when the trigger is pulled. (Doc. 35 at 12.) Defendant contends that Belk's causation opinion is not based on reliable scientific testing and methods because Belk admits that he did not observe an unsafe engagement on the Shearouse gun during the joint inspection and because no test resulted in a replication of Belk's hypothesized fire-on-bolt-closure. (Id.) The Court disagrees and finds that Belk bases his testimony on more than pure speculation. 11 First, the Court notes that both Belk and Watkins rely on the physical examination and testing performed inspection of the Shearouse gun. (Compare at the joint Doc. 35, Attach. 1 (reviewing the digital data received from North Star Imaging of the Shearouse gun in Belk's expert report) with Doc. 35, Attach. 4 at 2 (stating in Watkins' expert report that the rifle was examined ^^via a CT scan, 2D radiography, optical measurements, actuation addition, force Belk measurements has done a and physical significant testing.").) amount of testing In and examining of firearms and override triggers. (Doc. 50, Attach. 3 at 17-18; 115-117.) When Belk was asked whether he had tested his general hypothesis that ^'the interference with the trigger return spring can result in a reduced trigger sear engagement causing the rifle to fire by merely closing the bolt," Belk responded that he had "many, many times." (Id. at 104.) Belk explained his methodology as "I can look at it mechanically, look at the parts and knowing through experience and education how those parts interact, I can make certain deductions of how that trigger is going to work and how it's is [sic] going to fail." (Doc. 50, Attach. 4 at 240-41.) The Court notes that Belk's qualifications, education, and experience have not been challenged. Thus, although the tests performed on the Shearouse gun at the joint inspection did not result in a fire on bolt closure or a demonstration of precipitous engagement, Belk has 12 experience in the mechanical nature of override triggers. He can explain how those manufacturing triggers defect he function and identified can explain could lead how to the these occurrences. Ultimately, while there is no affirmative evidence through testing of a fire on bolt closure, such a fact does not per se render the opinion that the rifle fired without a trigger pull due to a manufacturing defect unreliable. See Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 990 (11th Cir. 2016). The fact that these discharging evidence, attempts did not result in the without a trigger pull goes to the not the inconsistencies admissibility. through Defendant vigorous Shearouse gun weight of the may address these cross-examination and presentation of contrary evidence. Daubert, 509 U.S. at 596, 113 S. Ct. at 2798. Finally, Arms Co., the LLC, Court briefly discusses Bachert No. 4:15-cv-03220, 2017 WL v. 4512555 Remington (S.D. Tex. Aug. 4, 2017). Defendant contends that Bachert is ^^on all fours" with the present case as the rifle there was tested by experts and cannot be made to malfunction and fire without a trigger pull as claimed by the plaintiff. (Doc. 44 at 11.) In a sparse opinion, the district court found that the plaintiff was unable to demonstrate that a product defect caused the rifle to fire and stated that 13 Bachert told the officer that the safety was on when the gun fired. Tests of the rifle after the accident showed that the trigger could not be pulled when the safety was on. The argument that the excess bonding agent caused a defect in the gun is not supported by the record. Bachert, 2017 WL 4512555, at *1. Notably, the district court when on to state that Bachert's complaint and deposition from the case in Illinois say that the rifle's safety was on at the time of the accident. More than two years after the accident and in response to Remington's motion for judgment, Bachert submitted a new affidavit directly contradicting his deposition testimony; he now claims that the safety was off. Id. at *2. that the Thus, rifle the plaintiff was defective in Bachert because originally claimed it fired with the safety on. However, after tests showed that the gun could not be made to fire with affidavit the directly contending that that it on, the contradicting excess without a trigger stated safety bonding plaintiff his agent submitted deposition caused a new testimony and the gun pull when the safety was off. Id. was the plaintiff's responsibility to fire The Court to provide "evidence from which a jury could reasonably determine the gun was defective" and rejected the plaintiff's subsequent affidavits as an attempt to manufacture a genuine issue of fact to preclude summary judgment. Id. 14 The this Court case as finds that Defendant Bachert contends. is not Unlike ^'on all this fours" action, with where Plaintiff has maintained that he did not pull the trigger, the plaintiff in Bachert attempted to manufacture a genuine issue of fact to preclude summary judgment by submitting affidavits that materially changed his story of the shooting. That issue is not present in this case. Further, there is other evidence in this case from which a jury could reasonably determine that the Shearouse gun was defective. 2. Belk^s treatment of alternative causes Defendant contends that Belk's opinion is also unreliable because Belk did not offer any "scientifically valid method to rule-out that the rifle functioned precisely as intended on the day of Plaintiff's shooting." {Doc. 35 at 16.) Defendant argues that Belk's opinion must be excluded on this ground. The Court disagrees. First, challenging the Court Belk's manufacturing again opinion defect or notes that his the that Defendant Shearouse opinions gun regarding is not contains the a design defects. Defendant's own expert, Derek Watkins, testified in his deposition that there are only four possible explanations of why a Remington Model 770 would fire. These explanations are: the trigger was pulled, there was an improper post-sale alteration to the rifle, there was an improper 15 post-sale abuse of the rifle, or that there was a defect in the rifle. (Doc. 37, Attach. 2 at 13-15.) Watkins further testified that he did not observe any alteration, the evidence that there was an improper post-sale abuse, or debris that Shearouse gun to fire without a would trigger post-sale have pull. caused (Doc. 39, Attach. 1 at 37.) Watkins ultimately stated that I would say that if it [the Shearouse gun] did fire without the trigger being pulled and if it was being handled in a normal and expected way, that there was some defect possibly causing it, as long as we're not talking out debris or poor maintenance or other things getting in there causing an issue that type of stuff. (Id.) Therefore, the two possible reasons for Plaintiff's injuries are that he pulled the trigger and the Shearouse gun operated as intended or that he did not pull the trigger and a defect caused the rifle to fire. Plaintiff contends that he did not pull cites to the trigger. the (Doc. deposition of 50, Attach. Timothy 2 at Ivey, 90.) an Defendant officer who responded to scene when Plaintiff was shot, that Plaintiff told Sergeant Ivey that he had the barrel of the Shearouse gun on top of his foot and pulled the trigger. (Doc. 35 at 15.) Sergeant Ivey did testify that Plaintiff told him that the gun fired when he pulled the trigger. (Doc. 50, Attach. 1 at 19.) However, as stated. Plaintiff has sworn testimony that he did not pull the trigger. Thus, causation of Plaintiff's 16 injury, e.g. whether Plaintiff pulled the trigger, is a question of fact to be resolved by the jury and not by this Court on summary judgment. Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 687, 572 S.E.2d 533, 536 (2002) {"[I]t is axiomatic that questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.") (internal quotation marks and citation omitted). Further, "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence . . . Quite the contrary, contrary proof ^[v]igorous evidence, are the and cross-examination, careful traditional and instruction appropriate presentation on the means of burden of of attacking shaky but admissible evidence.' " Quiet Tech., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596, 113 S. Ct. at 2798). II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT In conjunction with its motion to exclude the testimony of Belk, Defendant argues that, without admissible expert opinion testimony on the element of causation. Plaintiff lacks sufficient proof to take his case to trial and that Defendant is entitled Because Court to the denies summary judgment Court denied Defendant's in its Defendant's motion issue. 17 for favor. motion summary (Doc. to 35 at exclude, judgment on 17.) the this CONCLUSION For Motion the to foregoing Exclude the reasons, the Testimony Court and DENIES Causation Defendant's Opinion of Plaintiff's Liability Expert and Incorporated Motion for Summary Judgment (Doc. 32). SO ORDERED this ' * day of October 2019. WILLIAM T. MOORE, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 18
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