7th Circuit Finds Firearms Expert Inadmissible in Accidental Discharge Case

Case:

Adam Hartman v. EBSCO Industries, et al., No. 13–3398, Seventh Circuit U.S. Court of Appeals; July 10, 2014

Background:

Adam Hartman was loading a 14-year-old LK-93 Wolverine muzzleloader that had been upgraded the previous day with a kit to allow it to more effectively fire newer-styled pellets, when the rifle suddenly discharged, causing Hartman serious injury. Hartman had fired two shots and did not swab the Wolverine’s barrel between shots. He first fired a conical bullet then a patched round ball. Hartman then put a primer cap on the nipple of the breech plug, though he knew that a live primer cap should not be put on the nipple before loading. He then loaded two pellets into the muzzle of the rifle followed by another patched round ball.

Hartman attempted to seat the patched round ball in the barrel of the gun with a ramrod. The Wolverine then unexpectedly discharged. This caused both the ramrod and the round ball to pass through both of his hands and his right forearm.

Hartman sued the maker of the gun and kit, KR Warranty, and its owner, EBSCO Industries, for negligence and strict liability. He claims a failure to warn and a design defect.

The trial court found that, because the weapon was 14 years old, Indiana’s 10-year statute of repose for products-liability actions prohibited the action.

Firearms Expert:

There are two exceptions to the statute of repose: where a manufacturer refurbishes a product to extend its useful life, or where a defective new component is incorporated into the old product. Hartman presented testimony from gunsmith and firearms expert Steven Howard to attempt to meet those exceptions.

Howard opined that the 209 conversion kit made the Wolverine more accurate, more reliable, and gave it a higher muzzle velocity. Thus making it, in effect, “an entirely new rifle.”. He also said the breech plug increased the likelihood of latent embers. It was logical to conclude that a recessed face is more likely to retain embers than the concave design of the old breech plug, he said.

Further, KR Warranty’s failure to include a specially designed jag—one that could reach into the recessed face of the 209 breech plug—made the product defective, he said. He designed and made an alternative jag.

The District Court found Howard’s testimony inadmissible under Daubert v. Merrell Dow Pharms. (509 U.S. 579, 589 [1993]) because his theory was unsupported by evidence. Howard did not perform any tests to show that the breech plug is more likely to retain latent embers. His theory has not been subjected to peer review or publication, nor has it been generally accepted among other firearms experts. The trial court also found that the jag testimony was inadmissible.

Firearms Expert Admissibility Ruling:

The Seventh Circuit U.S. Court of Appeals panel found that Hartman pointed to no evidence that contradicted the District Court’s findings. Thus, the court’s reasoned decision was not an abuse of discretion.

Regarding the jag, the panel said Howard’s new jag had never been used. His design had not been tested, and no similar jag was in use anywhere in the industry. It was incomplete, inoperable, and unlike those used by KR Warranty or its competitors.

“Howard’s musings on the jag’s superiority cannot ‘substitute for scientific methodology and [are] insufficient to satisfy Daubert’s most significant guidepost’: reliability,” the panel said.

Even if the jag opinion was reliable, the District Court found the jag irrelevant.

“An alternate jag—even if one could have been feasibly marketed with the conversion kit—would not have made a difference here because Hartman did not swab the barrel of his Wolverine before it discharged,” the panel said. “The statute of repose cannot be reset if a new component, even if defective, did not cause the injury.”

Therefore, the panel affirmed summary judgment for the defendants.