BLOCH, District Judge.
Presently before the Court is Defendant Beemiller, Inc.'s and Defendant MKS Supply, Inc.'s Motion for Summary Judgment (Doc. No. 52). For the reasons set forth below, the Defendants' motion will be granted.
This is a strict products liability case over which this Court has jurisdiction based on diversity of citizenship, pursuant to 28 U.S.C. § 1332.
As set forth in the complaint, Plaintiffs Regis and Bonnie Ellis, who are husband and wife, allege that Plaintiff-Husband's left hand was seriously injured after a Hi-Point model C9, 9mm pistol, which was manufactured and sold by Defendant Beemiller, Inc., and sold and distributed by Defendant MKS Supply, Inc., exploded in his hand even though Plaintiff-Husband never pulled the trigger.
Plaintiff-Husband ("Plaintiff") allegedly suffered serious injuries, including a comminuted fracture of the mid-portion of the left thumb metacarpal. As a result, Plaintiff has allegedly (i) suffered great pain, suffering, mental anguish and embarrassment, (ii) undergone hospitalization and surgeries, (iii) incurred medical bills for treatment, (iv) been disfigured, (v) been unable to enjoy the ordinary pleasures of life, (vi) been unable to perform his normal daily activities including employment, and (vii) had his general health, strength, and vitality impaired. Plaintiff-Wife alleges that she suffered damages due to a loss of consortium.
Based upon the above, Plaintiffs allege that Defendants are strictly liable to Plaintiffs for their injuries sustained by the handgun (Counts I and IV), that Defendants are liable to Plaintiffs for breach of implied warranties (Counts III and VI) and that Defendants are liable for Plaintiff-Wife's loss of consortium (Counts X and XI).
The record as read in the light most favorable to Plaintiffs establishes the following background. On or about April 13, 2007, Plaintiff and his friend David Williams ("Williams") were at a campsite located at Raystown Lake, Pennsylvania, with several other individuals. The two men decided to look for an alternative fishing spot since their normal location had been designated for special needs fisherman and children. At some point, it was decided that the pair would find an area to fire the Hi-Point Model C9 9mm Luger handgun that Williams owned and brought to the campsite. Williams had purchased the gun new with 50 rounds of ammunition in approximately 2005 or 2006; he testified that he fired about 2 to 4 rounds of the ammunition in his backyard when he first purchased the gun and then cleaned it and placed it into a locked drawer in his home afterwards. Williams testified that the gun had not been touched until the date of the incident.
The two men traveled to a location behind a cabin where a tree stump was located by a creek. Williams was the first to fire the gun and he shot one clip of eight rounds at a target which had been attached to a four-by-four stand near the water. After Williams emptied out his clip, he inserted a loaded clip into the gun and handed it to Plaintiff with the safety on. Plaintiff testified that after he was handed the gun, he took the safety off, held it with his right hand, and wrapped his left hand around his right hand and gun. He then fired seven rounds at the target without any incident.
Prior to shooting his eighth and final round of ammunition, Plaintiff testified that he noticed that the slide of the gun did not fully go forward and was approximately 0.5 to 0.75 inches open. At that point, he stated that he lowered the gun, took his finger off the trigger, and commented to Williams that he thought the gun was jammed. Plaintiff took his left hand off the gun and was reaching towards the slide to try to clear the "jam" when all of a sudden the gun exploded in his hand. Plaintiff testified that the gun exploded without him ever pulling or touching the trigger and that the bullet came out of the trigger housing/left side of the gun and not the muzzle. He testified that when the gun "exploded," his left hand was parallel to the trigger housing and that the tip of his finger would have been taken off if it had been on the trigger when the explosion happened. Plaintiff suffered a bullet injury to his left thumb as a result of the incident.
Summary judgment is appropriate only "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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original). The summary judgment standard requires the issue to be genuine, that is, one where a reasonable jury, based on the evidence presented, could return a verdict for the non-moving party with regard to that issue. See id. at 248, 106 S.Ct. 2505. In addition, the disputed fact must be material, meaning it might affect the outcome under the substantive law. See Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.1998).
When deciding a motion for summary judgment, the Court must draw all inferences in a light most favorable to the non-moving party without weighing the evidence or questioning the witnesses' credibility. See id. The movant has the burden of demonstrating the absence of a genuine issue of material fact, while the non-movant must establish the existence of each element for which it bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant has pointed to sufficient evidence of record to demonstrate that no genuine issues of fact remain, the burden is on the non-movant to search the record and detail the material controverting the movant's position. See Schulz v. Celotex Corp., 942 F.2d 204, 210 (3d Cir.1991). Rule 56 requires the non-moving party to go beyond the pleadings and show, through the evidence of record, that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
Furthermore, "[a]t the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, a court need not "turn a blind eye to the weight of the evidence." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992) (emphasis added).
Defendants contend that they are entitled to summary judgment because Plaintiffs have failed to present sufficient evidence that the gun was defective. Defendants argue that Plaintiffs cannot proceed to trial without the use of an expert to explain how this incident could have occurred in the manner attested to by Plaintiff.
Plaintiffs contend they have set forth evidence sufficient to establish a prima facie case under the product malfunction theory and state that they have provided "competent" and "unrefuted" evidence that the gun malfunctioned in the manner described by Plaintiff and caused his injuries. They argue that expert testimony is not required to prove that the product was defective because lay testimony and observation of the gun suffice to establish that a malfunction occurred. Plaintiffs further assert that Defendants have failed to prove their theory that a reasonable secondary cause for the incident exists; as such, Plaintiffs argue that a genuine issue of material fact exists as to whether the product was defective under the product malfunction theory.
To recover under Pennsylvania law pursuant to a strict products liability theory, a plaintiff generally must prove that (1) the product was defective; (2) the defect was the proximate cause of the plaintiffs injuries; and (3) the defect existed
To establish a claim under the product malfunction theory a plaintiff must present "(1) evidence of the occurrence of a malfunction and (2) evidence eliminating abnormal use and (3) evidence eliminating reasonable secondary causes for the accident." Walters, 209 F.Supp.2d at 486-87 (citing Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir.1992)); see also Barnish, 980 A.2d at 541. Although the malfunction theory "does not relieve the plaintiff of the burden of establishing a defect." it "permits the malfunction itself to serve as circumstantial evidence of a defective condition provided the remaining evidence is sufficient to support the other elements." Walters, 209 F.Supp.2d at 487 (emphasis added). In general, establishing a prima facie case under the product malfunction theory "does not require a plaintiff to proffer expert testimony to prove how the product was defective or how the defect arose as a result of actions taken by the manufacturer or seller." Id. at 487 (citing Dansak v. Cameron Coca-Cola Bottling Co., Inc., 703 A.2d 489, 496 (Pa.Super.1997)). Expert testimony is required, however, if the subject matter is beyond the comprehension of the average juror. See Chubb v. On-Time Wildlife Feeders, 578 F.Supp.2d 737, 739 (M.D.Pa.2008).
For the reasons set forth below, the Court finds that Plaintiffs cannot satisfy the first element of their prima facie case because they have failed to present sufficient evidence that the gun was defective. The Court first notes that Defendants' contention regarding the applicability of the product malfunction theory is well-taken. The Court fails to see how or why the malfunction theory would apply in a case like this where (1) the actual product (gun) is available and has been subjected to testing and examination and (2) a specific defect (an out of battery discharge) has been identified by Plaintiffs. Indeed, the underlying purpose of the malfunction theory is to afford plaintiffs the opportunity to submit their case to a jury in cases where they lack direct evidence of the defect because the product is unavailable through no fault of their own.
Furthermore, Plaintiffs consistently have maintained that a specific defect — an out of battery discharge — caused the gun to explode.
In arguing that an out of battery discharge was the cause of the explosion, Plaintiffs have failed to offer any evidence which proves that the gun was able to fire out of battery without the trigger being pulled and with the slide being 0.5 to 0.75 inches open. Plaintiffs also have failed to establish that an out of battery firing could cause a bullet to exit the gun from anywhere other than the muzzle. The only evidence Plaintiffs cited to in support of their theory is Plaintiff's own testimony and the testimony of Williams — Plaintiff's friend, eyewitness and the owner of the gun. Read in the light most favorable to Plaintiffs, these two pieces of lay testimony establish the following:
See Plaintiff's Deposition (Doc. No. 56-2); Williams Deposition (Doc. No. 61-1). All this testimony serves to establish is that the gun exploded in Plaintiff's hand without him ever touching the trigger and that the explosion caused the eighth and final round of ammunition to exit — not from the muzzle — but from the left side of the gun. This testimony offers absolutely no insight as to what an out of battery firing is, how it could occur in the manner attested to by Plaintiff, what the defect even was that caused the gun to fire out of battery and how an out of battery firing could cause the type of damage that was caused to the gun.
Moreover, Plaintiff's account of the incident necessarily will require a jury to make a series of speculative inferences in order to find in Plaintiffs' favor. Specifically, in order for a reasonable juror to conclude that an out of battery firing occurred, he or she must first find that: 1) the gun was able to fire out of battery without the trigger being pulled, 2) the gun was capable of firing out of battery while the slide was 0.5 to 0.75 inches open, and 3) the out of battery firing was capable of causing the bullet to exit out of the left side of the gun — and not the muzzle. The problem for Plaintiffs is that (1) all of these conclusions are completely unsupported by the record evidence and (2) non-expert evidence will not suffice to provide the jury with a competent and adequate basis to make these findings.
According to Defendant's expert, Dr. Robert Levine, an out-of-battery discharge "may occur when the firing pin is released from a cocked position before the slide is fully forward (in battery position)." Expert Report of Robert T. Levine, Ph.D. (Doc. No. 45-2) at 11. Upon testing and examination, Dr. Levine concluded that an out of battery discharge; (1) cannot occur in a Hi-Point C9 9mm handgun unless the trigger is pulled; (2) cannot occur if the
Plaintiff's (now withdrawn) expert, Lester Roane, testified that he could not get the gun to fire when it was more than .070 inches open and that he "would not expect it to fire when it was half an inch open."
Against this backdrop, the record evidence overwhelmingly demonstrates that the gun was incapable of operating in the manner alleged by Plaintiffs. Specifically, the gun could not have experienced an out of battery discharge without the trigger being pulled and with the slide being more than 0.10 inches open. Even if the gun did fire out of battery, it would not have caused the particular kind of damage to the gun and it would not have caused a bullet to exit from anywhere other than the muzzle. Indeed, Plaintiffs' account of the incident is rendered physically impossible by the evidence and the onus was on Plaintiffs to come forward with more than just lay testimony and pictures of the gun to show that such a scenario was plausible. Plaintiffs, however, have not pointed to any specific facts which show that genuine issues of material fact exist as to whether Plaintiffs account of the incident was, at the very least, within the realm of possibility. Given the fact that Plaintiff's version of the story is completely refuted by the expert and physical evidence, expert testimony was required to prove that an out of battery discharge was the specific defect which caused the injuries in this case.
The Court acknowledges that expert testimony is not required as a matter
The Court finds that expert testimony was required in this case because lay testimony and pictures of the gun will not suffice to accurately and intelligibly describe to the jury all of the primary facts in order for them to correctly conclude that the firearm was capable of discharging in the manner alleged. The question of whether a gun is able to fire out of battery without pulling the trigger and with the slide being 0.5 to 0.75 inches open is a technical and scientific issue requiring specialized knowledge of the internal operations of firearms. It is not a question that reasonably is capable of being answered by merely observing the gun and listening to the allegations. Given the fact that Plaintiff is claiming that a gun exploded in his hand without him ever touching the trigger, the alleged defect which caused the explosion is not obvious enough to be ascertained by the average juror without speculation. Compare Padillas, 186 F.3d at 415-16 (denying summary judgment because non-expert testimony and picture evidence were sufficient to prove defect; juror could look at a chicken cutter with exposed blades and determine whether it was defective for not having a guard to cover the blades) with Oddi v. Ford Motor Co., 234 F.3d 136, 159-60 (3d Cir.2000) (granting summary judgment to defendants because the Court found that a juror could not look at a bread truck and reasonably conclude whether a bumper was defective without expert testimony). The Court finds that this case is more akin to Oddi, because the lay testimony and picture evidence will not suffice to provide the jury with a reasonable basis to conclude that the gun fired out of battery without Plaintiff pulling the trigger. Thus, Plaintiffs' failure to present expert testimony on this matter prevents them from establishing that the gun contained a specific defect. The only question which remains is whether Plaintiffs would be successful in arguing that an unspecified defect caused the gun to spontaneously explode under the product malfunction theory.
Assuming for the sake of argument that Plaintiffs are able to rely on this theory despite the fact that the actual gun is not destroyed, lost, or otherwise unavailable, Plaintiffs still cannot make out a prima facie case under the malfunction theory because they have failed to (1) establish that a malfunction occurred and (2) negate the possibility of a reasonable, secondary cause for the accident.
Although Plaintiffs are not required to prove a specific defect under the malfunction theory, they must still establish that the product was defective and cannot rely on speculation, conjecture, or guesswork to meet this burden. See Dansak, 703 A.2d at 496. Under the malfunction theory, evidence of the occurrence of a malfunction itself "is circumstantial evidence of a defective condition." Dansak, 703 A.2d at 496. However, "[t]he mere fact that an accident happens, even in this enlightened age, does not take the injured plaintiff to the jury." Id. Furthermore, even though expert testimony is "desirable from the Plaintiff's perspective [in a manufacturing defect case], [] it is not essential" under the malfunction theory.
Dansak, 703 A.2d at 496. However, this is not to say that expert testimony will never be required in a malfunction case. Indeed, if the subject matter is beyond the comprehension of the average juror, expert testimony will be required to prove that the product malfunctioned in the manner alleged. See Chubb, 578 F.Supp.2d at 739.
The Court finds that the record evidence does not suffice to support the claim that the gun contained an unspecified defect which caused it to malfunction and explode in Plaintiffs hand without him pulling the trigger. The Court further finds that Plaintiffs were required to produce expert testimony to prove their claim under the malfunction theory for the same reasons why they required expert evidence
Additionally, the physical evidence establishes that the eighth round of ammunition necessarily would have had to exit out of the muzzle because the internal components of the gun were still intact and the physical evidence does not support any finding that a bullet exited out of the left side of the gun. The lay testimony and picture evidence offer no insight as to whether a gun can spontaneously explode in one's hand without activating the trigger mechanism and discharge a bullet out of its side as a result. Indeed, it is precisely the implausible manner in which the incident is alleged to have occurred which distinguishes this case from others that have not required the presentation of expert testimony in malfunction theory cases.
Importantly, Plaintiffs do not cite to or rely on any other types of circumstantial evidence to help strengthen the inference that the gun malfunctioned. See Dansak, 703 A.2d at 496. They have no evidence of prior similar accidents, no expert testimony as to the possible causes for the spontaneous explosion, or any proof tending to establish that a gun can explode without pulling the trigger. Indeed, all they appear to rely on is lay testimony and the observation of the actual gun to support their claim that the gun exploded in the manner attested to by Plaintiff. These pieces of evidence cannot and will not be able to assist a jury in determining whether it was possible for the gun to discharge a bullet out of its side without Plaintiff pulling the trigger.
In light of the above, the Court finds that expert testimony was required for Plaintiffs to prove their claim under the product malfunction theory. The alleged malfunction in this case is not obvious enough to be ascertainable by mere observation. See Oddi, 234 F.3d at 159-60. The Court further finds that the primary facts of this case are beyond the comprehension of the average juror in that the average juror will be unable to correctly draw the conclusion that a gun is capable
Assuming, however, that the record evidence somehow is sufficient to establish that a malfunction occurred, Plaintiffs still cannot meet their burden under the malfunction theory because they cannot negate the reasonable secondary cause for the accident which was identified by the Defendants — that the damage to the pistol was caused by a force from outside the pistol.
In order to survive summary judgment, a plaintiff relying on the malfunction theory must demonstrate normal use and present "a case-in-chief free of secondary causes." Rogers v. Johnson & Johnson Prods., Inc., 523 Pa. 176, 565 A.2d 751, 755 (1989). This principle was further discussed in Dansak, where the court offered this summary:
Dansak, 703 A.2d at 497 (emphasis added) (internal citations and quotations omitted). The Court finds that Plaintiffs have failed to eliminate the reasonable, secondary cause for the incident identified by Defendants in this case — that the damage to the gun was caused by an outside force. Defendants argue that the gun was shot by another firearm and their expert concluded that after "[c]onsidering the areas of damage" the "damage to the pistol was caused by a force from outside the pistol and not from a cartridge discharged within the pistol." (Doc. No. 45-2) at 11, 12. While their expert did not actually conduct any testing in order to conclusively determine whether the subject gun was shot at by another firearm, he physically examined the subject firearm and concluded that "the bend on the recoil spring" was "more likely than not due to being struck by an object that came from outside the pistol." Id. at 11.
Defendants also supplied Dr. Levine with photographs that reflect images of what it looks like when this kind of pistol is shot by another gun. See Doc No. 56-16. Dr. Levine compared the gun to those pictures and found that the "similarity in the type of damage to those pistols to the pistol in question is remarkable." (Doc. No. 45-2) at 11. He also qualified his opinion and emphasized that they "were made independent of the photographs supplied" and that "the opinions expressed in this report are based on the observations made during the inspection of the pistol." (Id.) Contrary to Plaintiffs' assertions, Defendants were required to do no more. See Roselli, 599 A.2d at 688.
Defendants identified this secondary cause based on their inspection of the actual handgun and a comparison of photographs containing images of what a gun looks like after it had been shot with another gun. Defendants identified this alternative theory based on Plaintiff's own proof — the gun in question — and were not required to actually prove it. It was Plaintiffs who bore the burden of eliminating this theory as a reasonable secondary cause and they failed to do so despite
In light of Plaintiffs' implausible account of how the incident occurred, the Court finds that Defendants' explanation is consistent with the existence of a non-defect and is just as probable as Plaintiffs' explanation for the incident. See Lonon, 538 A.2d at 26. This conclusion is buttressed by the fact that Mr. Roane, at his deposition, could not distinguish between the photographs of the incident firearm and Defendants' photographs of what Hi-Point C9 pistols look like after they had been shot by another firearm.
Accordingly, the Court finds that Plaintiffs have failed to present competent, sufficient evidence in support of their claims and have not met their burden of proving a defect under any theory of liability.
An appropriate Order will be issued.
Restatement (Third) of Torts, § 3 (2012). Although the elements are stated a bit differently, the end result is the same — regardless of which Restatement applies, Plaintiffs have failed to offer circumstantial evidence sufficient to create a reasonable inference that a defect even existed. See Restatement (Third) of Torts, § 3 (2012).
