Rodney Palatka, et al v. Savage Arms, Inc., et al

Filing

OPINION filed: We REVERSE the district court s exclusion of the Plaintiffs expert witnesses, Dr. Radcliffe and Dr. Crimp. Because exclusion of the expert witnesses was inappropriate, we also REVERSE the grant of summary judgment on the design defect, manufacturing defect, and failure to warn claims. We AFFIRM the district court s exclusion of evidence of allegedly similar incidents. This case is REMANDED to the district court for further proceedings consistent with this opinion. Decision not for publication. R. Guy Cole , Jr., Circuit Judge; Bernice Bouie Donald, Circuit Judge and Thomas B. Russell (AUTHORING), U.S. District Judge for the Western District of Kentucky, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0744n.06
No. 12-1475
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
RODNEY PALATKA and JOANIE
PALATKA
Plaintiffs-Appellants,
v.
SAVAGE ARMS, INC., and
SAVAGE ARMS COMPANY,
Defendant-Appellee.

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Aug 09, 2013
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

Before: COLE and DONALD, Circuit Judges; RUSSELL, Senior District Judge.*
RUSSELL, Senior District Judge. Rodney and Joanie Palatka (“Palatkas” or “Plaintiffs”)
bring this action to recover for personal injuries Rodney sustained when a muzzleloading rifle
manufactured by Savage Arms, Inc., and the Savage Arms Company (“Savage Arms” or
“Defendant”) exploded during use. Relying on Michigan products liability law, the Plaintiffs
alleged that the barrel failed because of design and manufacturing defects. They offered expert
opinions in support of their claims.
Subsequent to a Daubert hearing, the district court excluded the Plaintiffs’ causation experts.
Without experts, the district court determined that the Plaintiffs could not put forth an alternative
design and were unable to show through direct or circumstantial evidence that the alleged
manufacturing defect proximately caused Rodney’s injuries. Because the Plaintiffs lacked such

*

The Honorable Thomas B. Russell, United States Senior District Judge for the W estern District of Kentucky, sitting
by designation.

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evidence, the district court granted summary judgment sua sponte to the Defendant. The Plaintiffs’
now appeal the exclusion of their experts, the exclusion of allegedly similar incidents, and the
district court’s grant of summary judgment. Upon review, we affirm in part, reverse in part, and
remand to the district court for further proceedings.
I. FACTUAL BACKGROUND
Savage Arms manufactures a variety of firearms, including the Savage 10ML-II
(“10ML-II”). The 10ML-II is available in two models, one with a traditional “blued” barrel and the
other with a barrel made from 416R stainless steel.1 The firearm at issue in this case is the stainless
steel version of the gun. The 10ML-II is a muzzleloading rifle, meaning that it does not fire the selfcontained, pre-loaded cartridges used in modern firearms. Instead, both the projectile and the
expelling charge are manually loaded into the firearm through the open end of the barrel prior to
firing.
Most modern muzzleloaders use black gunpowder to generate the force necessary to expel
the projectiles at high velocities. Black powder has at least three perceived drawbacks, however.
Upon firing, it produces less expelling force than modern gunpowder, creates large plumes of smoke
that can obstruct the user’s vision, and deposits soot in the barrel, requiring frequent cleaning.
Unlike black-powder muzzleloaders, the 10ML-II is designed to use modern, “smokeless”
gunpowder, which does not suffer from the drawbacks of black powder.

1

“416R” is the particular alloy of stainless steel used to manufacture the 10ML-II’s barrel. 416R is one of many
stainless steel alloys.

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Eldon Hofacker purchased a new 10ML-II from a federally licensed firearms dealer in 2002.
In 2009, Rodney borrowed the gun from Hofacker for deer hunting. To ensure its accuracy, Rodney
“sighted-in” the gun on November 14, 2009. During this process, the barrel of the muzzleloader
exploded, severing two fingers from Rodney’s left hand, injuring the remaining portion of that hand,
and severely damaging his right thumb. At the time of the accident, Rodney’s wife, Joanie, was
pregnant with twins. She alleges that the stress and trauma surrounding this incident caused her to
miscarry and lose both children.
As a result of their injuries, the Palatkas filed suit on June 30, 2010. They pursued recovery
under five distinct theories: design defect, manufacturing defect, failure to warn, breach of express
warranty, and breach of implied warranty. Joanie also filed a claim for loss of consortium. The
Defendant denied all liability, claiming that Rodney’s injuries likely resulted from user error. In
particular, the Defendant believed that the firearm may have exploded because it was under a
“double-load,” meaning that Rodney fired the gun after accidently loading it with two charges and
two projectiles.
II. PROCEDURAL HISTORY
Prior to granting summary judgment, the district court excluded two categories of evidence:
allegedly similar incidents involving other 10ML-II rifles and the Plaintiffs’ causation experts, Dr.
Clark Radcliffe and Dr. Martin Crimp. The Palatkas appeal these exclusions. They argue that the
district court’s ultimate decision to grant summary judgment was in error because this evidence, had
it been admitted, established genuine issues of material fact.

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The district court held two final pretrial conferences in this case. Following the first, held
on March 16, 2012, the court issued a written opinion granting and denying certain motions in
limine. Of particular importance on appeal, the court granted the Defendant’s motion to exclude
allegedly similar incidents involving other 10ML-II rifles. The court also amended the trial date and
scheduled a second final pretrial conference to address other pretrial issues, including the pending
motions to exclude the Plaintiffs’ causation experts.
Dr. Radcliffe and Dr. Crimp were disclosed with several other experts on April 13, 2011.
Most of the Plaintiffs’ experts were either voluntarily withdrawn or excluded because their reports
were not timely provided as required by Federal Rule of Civil Procedure 26(a)(2)(B). Accordingly,
Dr. Radcliffe and Dr. Crimp were the Plaintiffs’ only remaining causation experts at the time of the
second conference.2
Dr. Radcliffe and Dr. Crimp’s opinions were the subject of a Daubert hearing held in
conjunction with the second final pretrial conference on April 10, 2012. Two days after the hearing,
the district court issued a written opinion excluding Dr. Radcliffe and Dr. Crimp. Therein, the court
also granted summary judgment sua sponte to Savage Arms pursuant to Federal Rule of Civil
Procedure 56(f). Although the Defendant had not moved for summary judgment, the court
concluded that “[w]ithout competent expert testimony addressing the pivotal causation and design
issues in this case, a jury cannot reasonably discharge its duties in assessing liability[.]”

2

J. Ivan Dickson was also disclosed as the Plaintiffs’ expert for causation but was subsequently withdrawn as an expert.

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III. MICHIGAN PRODUCTS LIABILITY LAW
The Plaintiffs appeal exclusion of their causation experts and the subsequent grant of
summary judgment on their design and manufacturing defect claims. They brought claims under
Michigan’s products liability law. A brief review of that law will aid review on appeal.
A. Design Defect
The Plaintiffs allege that Rodney’s injuries were caused by a design defect in the 10ML-II.
The elements of a design defect claim have been codified in Michigan law. See Mich. Comp. Laws
§ 600.2946(2). To prevail on a design defect claim in that state, a plaintiff must prove that “(1) the
product was not reasonably safe when it left the control of the manufacturer; and (2) a ‘feasible
alternative production practice was available that would have prevented the harm without
significantly impairing the usefulness or desirability of the product to the users.’” Croskey v. BMW
of N. Am., 532 F.3d 511, 516 (6th Cir. 2008) (citing Mich. Comp. Laws § 600.2946(2)); Gregory
v. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995)). The second prong of this test requires a
“risk-utility” analysis. It “invites the trier of fact to consider the alternatives and risks faced by the
manufacturer in designing the product and to determine whether in light of certain factors ‘the
manufacturer exercised reasonable care in making the design choices it made.’” Croskey, 532 F.3d
at 516 (quoting Prentis v. Yale Mfg. Co., 365 N.W.2d 176 (Mich. 1984)). The Sixth Circuit has held
that a plaintiff meets this test by showing:
(1) that the severity of the injury was foreseeable by the manufacturer; (2) that the
likelihood of occurrence of her injury was foreseeable by the manufacturer at the
time of distribution of the product; (3) that there was a reasonable alternative design
available; (4) that the available alternative design was practicable; (5) that the
available and practicable reasonable alternative design would have reduced the
foreseeable risk of harm posed by the defendant's product; and (6) that omission of
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the available and practicable reasonable alternative design rendered defendant's
product not reasonably safe.
Hollister v. Dayton Hudson Corp., 201 F.3d 731, 738 (6th Cir. 2000). A plaintiff commonly shows
that the defendant’s product suffered from a design defect under the “risk-utility” factors “through
a ‘battle of the experts,’ with both parties introducing expert testimony concerning the efficacy and
practicability of using a certain design versus an alternative design.” Croskey, 532 F.3d at 516. The
plaintiff may also show that the defendant “knew or should have known about the risk [of injury]
by introducing evidence of similar incidents involving the [same product].” Id.
B. Manufacturing Defect
The Plaintiffs also claim that Rodney’s injuries were proximately caused by a manufacturing
defect unique to the 10ML-II at issue. In Michigan, “[a] manufacturer will be held liable for
manufacturing defects existing at the time of manufacture and sale.” Gregory, 538 N.W.2d at 328
n.7. To prove a manufacturing defect, a plaintiff “‘must prove a defect attributable to the
manufacturer and [a] causal connection between that defect and the injury or damage of which he
complains.” Crew v. Gen. Motors Corp., 253 N.W.2d 617, 619 (Mich. 1977) (quoting Piercefield
v. Remington Arms Co., 133 N.W.2d 129, 135 (1965)). When pursuing a manufacturing defect
claim, the product at issue is to be “evaluated against the manufacturer’s own production standards,
as manifested by that manufacturer’s other like products.” Prentis, 365 N.W.2d at 182. A claim
based on a manufacturing defect is different than one premised on a design defect because it
“necessitates examination of the product itself rather than the manufacturer’s conduct.” Gregory,
538 N.W.2d at 329, n.10. In other words, the trier of fact is not required to make a reasonableness

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determination. The plaintiff must merely show: (1) the product was not produced in conformity with
the manufacturer’s specifications, and (2) the defect proximately caused of the plaintiff’s injuries.
IV. EXPERT WITNESSES
The Plaintiffs first appeal exclusion of their causation experts. Upon review, we conclude
that the district court abused its discretion by excluding Dr. Radcliffe and Dr. Crimp. These experts
were qualified and offered reliable opinions that would have helped the jury weigh the issues and
apply Michigan’s products liability law. Accordingly, the district court erred by excluding them.
A. Standard of Review
Under 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.

Fed. R. Evid. 702. The trial judge is the “gatekeeper” of expert evidence and determines its
admissibility under Rule 702. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). As gatekeeper,
“the trial judge has discretion in determining whether a proposed expert’s testimony is admissible
based on whether the testimony is both relevant and reliable.” Rose v. Truck Ctrs., Inc., 388 F.
App’x 528, 533 (6th Cir. 2010) (citing Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429
(6th Cir. 2007)). When making that determination about a particular expert, the judge must assess
“whether the reasoning or methodology underlying the testimony is scientifically valid and . . .
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whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993).
A district court’s decision to admit or exclude an expert witness is reviewed for an abuse
of discretion. See Joiner, 552 U.S. at 146 (“[A]buse of discretion is the proper standard by which
to review a district court’s decision to admit or exclude scientific evidence.”) “A district court
abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Brown v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005) (internal
quotation marks omitted). “[W]e will not substitute our own judgment for that of the district court
and will reverse an evidentiary decision ‘only where we are left with a definite and firm conviction
that [the district court] committed a clear error of judgment.’” In re Scrap Metal Litig., 527 F.3d
517, 528 (6th Cir. 2008) (quoting Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th
Cir. 2002)).
B. Dr. Clark Radcliffe
The Plaintiffs’ first causation expert, Dr. Clark Radcliffe, is a professor of mechanical
engineering at Michigan State University. After examining the firearm, Dr. Radcliffe concluded that
the entire 10ML-II product line suffered from a design defect and that the particular 10ML-II
Rodney used also suffered from a manufacturing defect. In particular, he concluded that the gun
barrel failed because a threaded hole installed at the rear of the barrel made the barrel weaker and
more susceptible to failure when fired.3
3

Dr. Radcliffe also opined that an improper material had been used to manufacture the gun barrel. But the Court
need not consider this opinion because on cross-examination at the Daubert hearing Dr. Radcliffe readily admitted
that: 1) he is a mechanical engineer, not a materials scientist; 2) the attributes of the material used in the 10ML-II are
beyond his area of expertise; and 3) he has never offered any testimony in his report or deposition about the

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1. Dr. Radcliffe’s Design Opinion
The 10ML-II is designed with a small hole near the base of the barrel. The hole is located
at the top-center of the barrel but does not extend through the barrel wall. Because the hole is
partially threaded along its depths, screws can be used to attach various accessories, like a rear sight,
to the gun. After examination, Dr. Radcliffe opined that the 10ML-II product line was defectively
designed because the excess, unthreaded portion of the hole unnecessarily increases the stress on
the barrel during firing, leading to its failure. He ultimately concluded that the excess depth of the
hole directly contributed to the failure of the 10ML-II at issue.
Pictures in Dr. Radcliffe’s report show that threads are only cut along half of the hole’s
depth. According to Dr. Radcliffe, this excess and unthreaded depth does not help fasten a rear sight
to the gun and, therefore, has no function. Rather, the unthreaded portion only serves to increase
the stresses on the barrel during firing. Therefore, not only does the excess depth not provide any
benefit to the gun, but it actually makes it less safe to operate. In total, Dr. Radcliffe concluded that
the excess, unthreaded portion of the hole was an improper design that led to the barrel’s failure and
Rodney’s injuries. Dr. Radcliffe opined that the dangers associated with the gun could be reduced,
and the gun made safer, by eliminating the unthreaded depth of the hole. In other words, the hole
did not have to be eliminated entirely, but the excess and unthreaded portion, which has no function,
should be removed.

properties used in the barrel in question. By Dr. Radcliffe’s own testimony he is unqualified to offer a materials
opinion and, despite the terms of his report, apparently has never offered such an opinion. Because Dr. Radcliffe is
not qualified by knowledge, skill, experience, training, or education to offer a materials opinion, such opinion will
remain excluded on remand.

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2. Dr. Radcliffe’s Manufacturing Opinion
Dr. Radcliffe also concluded that the particular 10ML-II Rodney used was defectively
manufactured. His manufacturing defect opinion is closely related to his design defect opinion and
again focuses on the hole at the rear of the barrel.
Dr. Radcliffe inspected the subject firearm, made measurements of the hole at issue, and
compared those measurements to design specifications produced by Savage Arms during discovery.
The design specifications stated that the maximum depth of the hole should be 0.161 inches. The
hole in the 10ML-II examined by Dr. Radcliffe had a depth of 0.168 inches, or 0.007 inches deeper
than specified. Based on this difference, Dr. Radcliffe concluded that the additional depth increased
stress on the barrel when fired, leading to its failure.
3. Dr. Radcliffe’s Opinions are Admissible
Although the district court did not question Dr. Radcliffe’s qualifications as an expert, it
excluded his opinion on grounds that it would not assist the jury in determining whether the 10ML-II
was defectively designed or manufactured. The court was critical of Dr. Radcliffe’s opinion in light
of his admission that he is not a firearms expert and has not consulted in the design or manufacture
of a firearm. The court also found that Dr. Radcliffe’s opinions would not supply a jury with a
sufficient basis for determining whether there was a design or manufacturing defect under Michigan
law. Upon review of the record, we conclude that the district court erred by excluding Dr.
Radcliffe’s opinions.
First, we agree with the district court that Dr. Radcliffe is qualified to offer expert opinions
in this case. As a professor of mechanical engineering there is little doubt that he is qualified by his

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knowledge, skill, experience, training, and education to proffer an expert opinion. His qualifications
also remedy the district court’s concerns that he is not a firearms expert. His skill, education, and
training in mechanical engineering render him competent to offer opinions on a variety of
mechanical topics, and we will not require Dr. Radcliffe to have a specialized knowledge of firearms
to offer opinions here. See, e.g., Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 294
(6th Cir. 2007) (holding that although the expert’s experience was not specific to a particular
industry, his background and experience left him “well-positioned to assist the trier of fact to make
sense of” the evidence (internal quotations omitted)). The scope of his expertise may cut against
the weight given to his opinion, but it does not affect its admissibility.
Second, we disagree with the district court that Dr. Radcliffe’s opinion would not aid the jury
in determining whether the 10ML-II suffered from a design or manufacturing defect. Dr. Radcliffe
wrote in his expert report and testified in the Daubert hearing that the excess depth of the rear sight
hole in the 10ML-II, as designed and actually manufactured, increased stress on the gun’s barrel
when fired. He concluded that the additional stress caused by the excess depth of the hole was a
“key issue” in the gun’s failure. As for an alternative design, Dr. Radcliffe opined that Savage Arms
could have reduced the likelihood of barrel failure by making the hole shallower and by
manufacturing it with tools that created cut marks with rounded edges, rather than the angular cut
marks he observed. According to Dr. Radcliffe, these alternative manufacturing practices and
design would have decreased the stress on the barrel when fired, reducing the likelihood of barrel
failure.

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To pursue a design defect, Michigan law requires a plaintiff to show, in part, that “a practical
and technically feasible alternative production practice was available that would have prevented the
harm without significantly impairing the usefulness or desirability of the product to users and
without creating equal or greater risk of harm to others.” Mich. Comp. Laws § 600.2946(2). Dr.
Radcliffe’s design opinion complies with the requirements of Michigan Law and should not have
been excluded. Likewise, his manufacturing opinion is also admissible. As discussed previously,
a plaintiff proves a manufacturing defect by showing that the product was not manufactured in
conformity with the manufacturer’s specifications and that this nonconformity caused the plaintiff’s
injuries. Upon examination, Dr. Radcliffe found that the rear sight hole in the 10ML-II at issue was
deeper than specified, and he reasoned that this additional depth increased stress on the barrel,
resulting in its failure and Rodney’s injuries. Such an opinion should have been admitted.
Finally, the district court took issue with Dr. Radcliffe’s lack of testing of his proposed
alternative and his lack of knowledge concerning the amount of pressure generated in the barrel
during firing. Although the pressure generated by firing relates to the stress on the barrel, we
conclude that Dr. Radcliffe’s lack of knowledge on this topic goes to the weight to be given to his
opinion, not to its admissibility. Dr. Radcliffe is of the opinion that an alternative design would have
reduced the likelihood of barrel failure. His opinion bears none of the “red flag” that we have held
may justify exclusion, such as: “reliance on anecdotal evidence, improper extrapolation, failure to
consider other possible causes, lack of testing, and subjectivity.” Newell Rubbermaid, Inc. v.
Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012). How he arrived at this opinion can be explored
at trial, and the fact that he did not consider barrel pressures can be highlighted on cross-examination

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to question the weight that should be given to his opinion. It does not, however, render his opinion
inadmissible.
C. Dr. Martin Crimp
The Plaintiffs’ second causation expert, Dr. Martin Crimp, is also a professor at Michigan
State University. He was offered as an expert on materials science who would testify about the
structure and properties of the metal used to manufacture the 10ML-II. Like Dr. Radcliffe, Dr.
Crimp also concluded that the entire 10ML-II product line suffered from a design defect and that
the particular 10ML-II Rodney used was defectively manufactured.
1. Dr. Crimp’s Design Opinion
The stainless steel version of the 10ML-II is designed to be manufactured from 416R
stainless steel.

During his investigation Dr. Crimp discovered that 416R stainless steel is

“martensitic,” meaning that it is created through a quench and temper treatment. Martensitic steels
are designed to have high strengths and to be fracture resistant. The high “toughness” of martensitic
steels makes them difficult to machine and shape, however. To improve machinability, sulfur is
added to martensitic steels like 416R. This additional sulfur combines with manganese in the steel
to form manganese sulfide particles, which are hard, difficult to deform, and adhere poorly to the
surrounding steel. The sulfide particles create voids in the microscopic structure of the steel,
allowing it to be more easily machined. According to Dr. Crimp, the improved machinability comes
at the cost of increased susceptibility to fracture.
Dr. Crimp examined sections of the barrel of the 10ML-II at issue using three different
techniques: reflected light optical microscopy, scanning electron microscopy, and energy dispersive

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x-ray analysis. Each of these methods allowed Dr. Crimp to examine the microscopic structure of
the barrel and to observe the arrangement of the sulfide particles in the metal. Based on his
observations, Dr. Crimp concluded that the sulfide particles in the 416R stainless steel caused the
metal to be “anisotropic.”
“Anisotropic” generally means that a material will have different properties throughout the
body of the material. In the case of the 416R stainless steel observed by Dr. Crimp, the sulfide
particles stretched along the length of the barrel. Based on the presence of these “strings” of
sulfides, Dr. Crimp concluded that cracks would be expected to propagate down the length of the
barrel as the gun is repeatedly fired. To explain the anisotropic nature of the metal, Dr. Crimp
compared the properties of the barrel to those found in wood. Wood is anisotropic because it is
easier to split along the grains rather than perpendicularly to the axis of the tree. Therefore, wood
has different strength properties in different directions. In a similar way, Dr. Crimp concluded that
the “grains” of sulfide particles in the 416R stainless steel made it weaker along the length of the
barrel, which is the direction it split during Rodney’s accident. In all, Dr. Crimp concluded that the
anisotropic nature of 416R stainless steel made it inappropriate for use in gun barrels and was a
design defect in the 10ML-II product line. He opined that the guns could be made safer by
manufacturing them from a different type of material.
2. Dr. Crimp’s Manufacturing Opinion
Dr. Crimp also concluded that the 10ML-II used by Rodney was defectively manufactured
because chemical analysis of the barrel revealed that it contained greater levels of sulfur than
recommended for 416R stainless steel. According to Dr. Crimp, properly manufactured 416R

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stainless steel is composed of 0.13 percent sulfur. Chemical analysis of the barrel at issue showed
that it contained 0.17 percent sulfur, or 0.04 percent more sulfur than specified. Dr. Crimp
concluded that the increased sulfur content caused two defects in the barrel. First, it made the metal
softer than specified for 416R stainless steel. Second, an increased concentration of sulfur made the
metal more susceptible to intergranular fracture.
Material specifications provided to the Plaintiffs by Savage Arms indicate that 416R stainless
steel should have a Brinell4 hardness in the range of 235-277. Because the section of the barrel
subjected to hardness testing was of inappropriate shape and size for Brinell testing, Dr. Crimp
performed a Rockwell C hardness test. Converting the results of the Rockwell C hardness test into
Brinell units using an appropriate method, Dr. Crimp found that the metal of the barrel at issue had
a Brinell hardness of 222, meaning that it was softer than the hardness specified for 416R stainless
steel. Based on this result, Dr. Crimp concluded in his report that the barrel had a Brinell hardness
lower than the specified range.
In addition to a defect in the material’s hardness, Dr. Crimp concluded that increased
amounts of sulfur caused “intergranular factures” in the barrel. The intergranular fractures occurred
in areas with high concentrations of sulfide particles. The material fractured at those locations
because the steel was unable to flow, or flex, in the proper proportions (known as “plastic
deformation”) when subjected to stress. Describing the issue another way, Dr. Crimp concluded that
the sulfide particles are not ductile, meaning they do not deform under stress. As the concentration

4

The Brinell hardness scale is one of a number of measurements engineers use to categorize the hardness of
materials.

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of sulfur increases in the metal, more sulfides are created. This increases the metal’s machinability
but also increases the number of structural weaknesses found in it. Without an appropriate amount
of metal between the sulfide particles to serve as a “ligaments,” which allow the metal to deform,
the metal becomes more susceptible to fractures. Based on the intergranular factures Dr. Crimp
observed, he concluded that the barrel was metallurgically flawed, did not conform to design
specification, and was not proper for its intended use.
3. Dr. Crimp’s Opinions are Admissible
Much like those offered by Dr. Radcliffe, we conclude that Dr. Crimp’s opinions are
admissible and that the district court abused its discretion by excluding them. The district court did
not question Dr. Crimp’s qualification and found him to be well-qualified in the field of materials
science and engineering. The court found that his opinions should be excluded because he could
not identify the proximate cause of the barrel’s failure and did not propose a feasible alternative
design that would have prevented the accident. Upon review of the record, we find that the district
court erred on these two points.
First, after examining the barrel, Dr. Crimp found that the 416R stainless steel was
anisotropic. The sulfide particles in the metal created weaknesses running along the length of the
barrel, making it more susceptible to fracture. Dr. Crimp concluded that these weaknesses, which
were intentionally included in order to improve the metal’s machinability, caused intergranular
factures in the material, rendering it “flawed from a metallurgical standpoint.” Thus, the proximate
cause of the barrel’s failure, in Dr. Crimp’s opinion, was use of a metal that was inappropriate for
gun barrels. Second, Dr. Crimp testified at the Daubert hearing that other, less anisotropic stainless

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steels exists and are used to manufacture gun barrels. His opinion was that use of one of these types
of stainless steels would make the barrel less likely to fail. Accordingly, Dr. Crimp offered an
opinion as to the proximate cause of the barrel’s failure and an alternative design. Dr. Crimp’s
opinions were admissible.
D. Result of Reversal
After finding Dr. Radcliffe and Dr. Crimp’s opinions inadmissible, the district court granted
summary judgment to the Defendant sua sponte. The court reasoned that summary judgment was
appropriate because without expert opinions the Plaintiffs could not maintain products liability
claims under Michigan law. The parties have put forth arguments as to the propriety of the sua
sponte grant of summary judgment. Because Dr. Radcliffe and Dr. Crimp were improperly
excluded, the court need not consider these arguments. Dr. Radcliffe and Dr. Crimp’s opinions were
admissible, and the district court should not have granted summary judgment to the Defendant.
Therefore, the court reverses summary judgment on the design defect, manufacturing defect, and
failure to warn claims. These causes of action will be remanded to the district court.
I. ALLEGEDLY SIMILAR INCIDENTS
The Palatkas also appeal the district court’s exclusion of allegedly similar incidents
involving other 10ML-II firearms. We find that the district court did not abuse its discretion and
affirm exclusion of this evidence.
A. Standard of Review
A trial court’s decision to exclude evidence of other similar incidents is reviewed for an
abuse of discretion. Surles ex rel. Johnson, 474 F.3d at 296; Rye v. Black & Decker Mfg. Co., 889

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F.2d 100, 101 (6th Cir. 1989). “A district court abuses its discretion if it bases its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.” Brown v. Raymond
Corp., 432 F.3d 640, 647 (6th Cir. 2005) (internal quotations omitted). “‘[H]eavy reliance is placed
on the discretion of the trial judge’ in admitting or excluding evidence of prior accidents, and the
trial judge’s decision is to be given ‘great latitude.’” Rye, 889 F.2d at 101-02 (quoting Rhodes v.
Michelin Tire Corp., 542 F. Supp. 60, 62 (E.D. Ky. 1982); Moran v. Vermeer Mfg. Co., 742 F.2d
456, 458 (8th Cir. 1984)).
B. Other 10ML-II Failures
The Plaintiffs sought to introduce evidence that other 10ML-IIs failed under circumstances
that were substantially similar to those leading to Rodney’s injuries. Specifically, the Plaintiffs
identified two cases, one from Tennessee and one from Canada, in which the plaintiffs sued Savage
Arms after sustaining personal injuries when their 10ML-II muzzleloaders exploded during use.
Based on reports produced by the Defendant during discovery, the Plaintiffs also identified eight
other incidents in which the barrels of 10ML-IIs failed.
In the district court the Plaintiffs asserted that these ten incidents were admissible for the
purpose of proving that the 10ML-II was defective, that the Defendant knew it was defective, and
the Defendant failed to warn users of the defect. The Plaintiffs claimed that the other incidents were
substantially similar to Rodney’s accident for at least four reasons. First, like Rodney’s accident,
all of the other incidents involved the stainless steel version of the 10ML-II. Second, the location
of the barrel failure in the other incidents was at or near the same location (at the base of the barrel
near the drilled hole) as the failure that occurred in Rodney’s accident. Third, the operators of the

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other 10ML-IIs properly loaded and used their guns. Finally, the Defendant denied liability in the
other incidents, claiming that the 10ML-IIs most likely failed because users double-loaded the
firearms.
During the first final pretrial hearing, the district court heard arguments concerning the
Defendant’s motion to exclude the allegedly similar incidents. The court granted the motion for two
reasons. First, the court found that the evidence was not admissible because the Plaintiffs failed to
demonstrate that the other incidents were substantially similar to the facts before it. To be
substantially similar, the court noted that the Plaintiffs would have to rule out other causes of the
allegedly similar incidents, but they were unable to do so on the limited record before the court.
Second, the court held that even if the incidents were similar they were still inadmissible
under Federal Rule of Evidence 403. None of the incidents highlighted by the Plaintiffs had been
reduced to a judgment nor had their cause been determined. If admitted, it would have been
necessary for the court to conduct mini-trials of each of the ten similar incidents in order to
determine causation. Trying those ten incidents within the course of the Plaintiffs’ case would have
delayed the trial, misled the jury, and directed them away from the dispositive issue in the Palatkas’
case. Accordingly, the court excluded the allegedly similar incidents.
Upon review, we affirm exclusion of the allegedly similar incidents on procedural and
substantive grounds. First, on appeal, the Plaintiffs fail to support their arguments with citations to
the evidentiary record. Federal Rule of Appellate Procedure 28(a)(9) requires that each argument
made by an appellant contain the “appellant’s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies.” In their opening brief, the

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Plaintiffs’ argument on the issue of allegedly similar incidents is nine pages in length. They support
their argument with four more pages in their reply. In thirteen pages of argument on the issue, the
Plaintiffs never cite to the evidentiary record. They fail to cite records that would aid this court in
determining whether the other incidents were substantially similar to Rodney’s accident. Without
citing to the record, the Plaintiffs assert that the firearms in the other incidents were stainless steel
10ML-IIs, that each incident involved a failure at approximately the same location on the barrel, and
that the guns had not been “double-loaded” by their operators. Lacking appropriate citations to the
record, the court has no grounds for determining whether the Plaintiffs’ arguments have any
evidentiary basis.
In Seifert v. Graphic Packaging Int’l, 486 F. App’x 594, 596 (6th Cir. 2012) (per curiam),
the court found that filing “a brief with no record citations . . . indicates that [the appellants] had no
reasonable expectation of vacating the district court’s summary judgment in favor of [the
defendant].” Likewise, other circuits have held that by “making mere assertions, failing to challenge
the district court’s reasoning, [and/or] not citing any record support,” appellants waive certain
arguments on appeal. Sky Harbor Air Servs., Inc. v. Reams, 491 F. App’x 875, 881 (10th Cir. 2012);
see Conto v. Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001) (“[T]he Federal Rules of Appellate
Procedure require that appellants, rather than courts of appeals, ferret out and articulate the record
evidence considered material to each legal theory advanced on appeal.”). Because the Plaintiffs
have not supported their argument with proper citations to the record on appeal, the court affirms
exclusion of the allegedly similar incidents.

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Second, even if the Plaintiffs had properly cited to the evidentiary record, the court would
still affirm the district court’s exclusion on substantive grounds. “Prior accidents must be
‘substantially similar’ to the one at issue before they will be admitted into evidence.” Croskey, 532
F.3d at 518 (citing Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 376 (6th
Cir. 1983)). For incidents to be “substantially similar,” they “must have occurred under similar
circumstances or share the same cause.” Id. The plaintiff “has the burden of showing the substantial
similarity between prior accidents and his own.” Id..
Although the other incidents identified by the Plaintiffs involved barrel failures, they could
not point to or rule out any cause of those failures. Based on the Plaintiffs’ inability to describe the
factual circumstances surrounding each failure, the other incidents were properly excluded because
there was no showing that they were “substantially similar” to Rodney’s accident. Even if relevant,
the other incidents were not admissible because they would confuse the jury, be misleading on the
dispositive issues, and cause an undue delay in the trial while the specific facts of each failure were
adjudicated. See Fed. R. Evid. 403. Accordingly, the district court did not abuse its discretion by
excluding the allegedly similar incidents.
Finally, the Plaintiffs’ reliance on Croskey v. BMW of N. Am., Inc., 532 F.3d 511 (6th
Cir. 2008) is misplaced. Croskey was a products liability case governed by Michigan law in which
the plaintiff was injured when the radiator on his girlfriend’s automobile ruptured, scalding him with
hot liquid. Id. at 513. He brought suit against the manufacturer alleging design defect and failure
to warn. Id. To support his claims, the plaintiff sought to introduce evidence of other similar
incidents. Id. at 513-14. The trial court excluded this evidence to the extent that the plaintiff would

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use it to show a design defect in the radiator. Id. at. 514. The lower court found that this evidence
could not be introduced because Michigan law prohibited the introduction of similar incidents for
this purpose. Id. After reviewing recent Michigan cases, the Sixth Circuit reversed. The court held
that “it was error for the district court to make a blanket exclusion of all ‘other incidents’ evidence
by plaintiff to prove a negligence claim involving design defect.” Id. at 518.
The Plaintiffs’ reliance on Croskey in the instant case ignores a critical distinguishing feature
of that case. The district court in Croskey found that other incidents involving the radiator were
substantially similar to the events leading to the plaintiff’s injuries. It then excluded those incidents
based on an erroneous belief that Michigan law prohibited introduction of other incidents for the
purpose of proving a design defect.
In the present case the district court excluded the other incidents because the Plaintiffs failed
to show that the other incidents were substantially similar to the events surrounding Rodney’s
injuries. Accordingly, the district court’s exclusion of this evidence was not based on an erroneous
view of the law, but on a determination that the other incidents were not substantially similar.
Therefore, the Plaintiffs reliance on Croskey is unavailing.
CONCLUSION
The Plaintiffs appeal from a grant of summary judgment by the district court. For all of the
foregoing reasons, we reverse the district court’s exclusion of the Plaintiffs’ expert witnesses, Dr.
Radcliffe and Dr. Crimp. Because exclusion of the expert witnesses was inappropriate, we also
reverse the grant of summary judgment on the design defect, manufacturing defect, and failure to

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warn claims. We affirm the district court’s exclusion of evidence of allegedly similar incidents.
This case is remanded to the district court for further proceedings consistent with this opinion.

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