Seamon v. Remington Arms Company, LLC
MEMORANDUM OPINION AND ORDER DENYING plaintiff's 31 MOTION for Partial Summary Judgment; GRANTING Remington's 34 Motion to Exclude the Causation Opinion of Plaintiff's Liability Expert; and GRANTING Remington's 34 MOTION for Summary Judgment, as further set out in order. Signed by Chief Judge William Keith Watkins on 9/29/14. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CYNTHIA SEAMON, individually,
and as personal representative of the
estate of KENNETH SEAMON,
REMINGTON ARMS COMPANY,
) CASE NO. 2:12-CV-895-WKW
MEMORANDUM OPINION AND ORDER
Tragically, Kenneth Seamon died from a gunshot wound to the chest
inflicted by his own Remington 700 rifle while he was hunting alone from a deer
stand thirteen-feet high in a tree. The rifle was found on the ground beneath the
unfortunate hunter, with a rope tied to the barrel, a spent shell in the chamber, and
the safety “off” (in the “fire” position). The issue is what caused the rifle to fire.
All the available evidence suggests nothing as to causation; the circumstances of
Mr. Seamon’s death defy reasoned explanation, and perhaps, logic. The facts test
the thin line between speculation and reasonable inference.
Seamon fails to cross the evidentiary line into reasonable inference of causation,
and her case must fail.
Plaintiff, individually and as the personal representative of her deceased
husband’s estate, brings this action against Defendant Remington Arms Company,
LLC (“Remington”). She alleges that her husband died as a result of a defect in a
Remington Model 700 bolt-action rifle that caused the rifle to fire without a trigger
Before the court are three motions:
(1) Plaintiff’s Motion for Partial
Summary Judgment on the basis of offensive collateral estoppel (Doc. # 31);
(2) Remington’s Motion to Exclude the Causation Opinion of Plaintiff’s Liability
Expert pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) (Doc. # 34); and (3) Remington’s Motion for Summary Judgment on
grounds that, if the expert testimony is excluded, summary judgment in favor of
Remington is warranted (Doc. # 34). The parties have fully briefed the motions.
(Docs. # 38, 40, 44.) After careful consideration of the arguments of counsel, the
law, and the evidence, the court finds that Plaintiff’s motion for summary
judgment is due to be denied, that Remington’s Daubert motion is due to be
granted,1 and that Remington’s summary judgment motion is due to be granted.
I. JURISDICTION AND VENUE
The court exercises diversity jurisdiction over Plaintiff’s claims pursuant to
28 U.S.C. § 1332(a). The parties do not contest personal jurisdiction or venue.
No hearing has been requested on the Daubert motion, and the record is adequate for a
ruling without a hearing.
II. STANDARDS OF REVIEW
Summary Judgment Standard
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
This responsibility includes
identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id. Or a movant who does not have a trial burden of production
can assert, without citing the record, that the nonmoving party “cannot produce
admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see
also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision (c)(1)(B)
recognizes that a party need not always point to specific record materials . . . . [A]
party who does not have the trial burden of production may rely on a showing that
a party who does have the trial burden cannot produce admissible evidence to carry
its burden as to the fact.”). If the movant meets its burden, the burden shifts to the
nonmoving party to establish – with evidence beyond the pleadings – that a
genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S.
A genuine dispute of material fact exists when the nonmoving party
produces evidence allowing a reasonable fact finder to return a verdict in its favor.
Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702 and Daubert and its progeny. Rule 702 provides:
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;
(d) The expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
In Daubert, the Supreme Court emphasized that Rule 702 assigns the trial
court a gatekeeping role to “ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” 509 U.S. at 589 & 597; see also
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (“[T]he Federal Rules of
Evidence ‘assign to the trial judge the task of ensuring that an expert’s testimony
rests both on a reliable foundation and is relevant to the task at hand.’” (quoting
Daubert, 509 U.S. at 596)). This gatekeeping responsibility is the same when the
trial court is considering the admissibility of testimony based upon “‘technical’ and
‘other specialized knowledge.’” Kumho Tire, 526 U.S. at 141 (quoting Fed. R.
In light of Daubert’s “gatekeeping requirement,” the Eleventh Circuit
requires district courts to engage in a “rigorous three-part inquiry” for assessing the
admissibility of expert testimony under Rule 702:
Trial courts must consider whether: “(1) [T]he 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 determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.”
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1999)). These
requirements are known as the “qualifications,” “reliability,” and “helpfulness”
“The burden of establishing qualification, reliability, and
helpfulness rests on the proponent of the expert opinion,” id., and the proponent
must meet its burden by a preponderance of the evidence. Boca Raton Cmty.
Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009); see
also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999) (In
addition, we note that “[t]he burden of laying the proper foundation for the
admission of expert testimony is on the party offering the expert, and the
admissibility must be shown by a preponderance of the evidence.” (citing Daubert,
509 U.S. at 592, n.10)).
As to qualifications, “experts may be qualified in various ways,” including
by scientific training, education, and experience. Frazier, 387 F.3d at 1260. When
evaluating the reliability of scientific expert testimony, the trial judge must assess
“whether the reasoning or methodology underlying the testimony is scientifically
valid and . . . whether that reasoning or methodology properly can be applied to the
facts in issue.” Daubert, 509 U.S. at 592–93. Factors that may bear on the
reliability of expert testimony include (1) whether the expert’s theory can be and
has been tested, (2) whether the theory has been subjected to peer review and
publication, (3) whether the known or potential rate of error of the methodology is
acceptable, and (4) whether the theory is generally accepted in the proper scientific
community. McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (citing
Daubert, 509 U.S. at 593–94). These factors are not definitive, however. Other
potentially relevant factors, depending upon the facts, include “whether the
proposed expert ruled out other alternative explanations” and “whether the
proposed expert sufficiently connected the proposed testimony with the facts of the
case.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 687 (8th Cir. 2001) (collecting
cases). In short, trial courts retain “considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable.”
Kumho Tire, 526 U.S. at 152. At the same time, trial courts must remain mindful
that “Daubert does not require certainty; it requires only reliability.” Hendrix ex
rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1198 n.10 (11th Cir. 2010). The focus of
reliability “must be solely on principles and methodology, not on the conclusions
they generate.” Daubert, 509 U.S. at 595.
Finally, whether the expert testimony will assist the trier of fact in
understanding the evidence or a fact in issue “goes primarily to relevance.” Id.
at 591. “Expert testimony which does not relate to any issue in the case is not
relevant and, ergo, non-helpful.”
Id. (citation and internal quotation marks
omitted). “The ‘basic standard of relevance . . . is a liberal one,’ but if an expert
opinion does not have a ‘valid scientific connection to the pertinent inquiry[,]’ it
should be excluded because there is no ‘fit.’” Boca Raton Cmty. Hosp., 582 F.3d
at 1232 (quoting Daubert, 509 U.S. at 591–92). Hence, under this third inquiry,
“even if an expert’s testimony [is] admissible under the first two prongs of the
Daubert analysis, it may still be insufficient to create an issue of fact to overcome
summary judgment.” Gulf States Reorganization Group, Inc. v. Nucor Corp., 822
F. Supp. 2d 1201, 1232 (N.D. Ala. 2011); see also Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997) (District courts may reject expert testimony that is based on
sound methodology when “there is simply too great an analytical gap between the
data and the opinion proffered.”).
In the end, the court’s gatekeeping role under Daubert “is not intended to
supplant the adversary system or the role of the jury.” Allison v. McGhan, 184
F.3d 1300, 1311 (11th Cir. 1999). Where the basis of expert testimony satisfies
Rule 702, “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
Plaintiff Cynthia Seamon is the widow of Kenneth Seamon and the personal
representative of his estate. Although the pleadings focus on the citizenship of Ms.
demonstrating that that Mr. Seamon was an Alabama citizen, and the parties have
not contended otherwise.
Defendant Remington Arms Company, LLC (“Remington”) is a Delaware
Corporation, engaged in the business of designing, manufacturing, assembling,
distributing, and selling firearms. Among the firearms Remington makes is the
The First Amended Complaint identifies Plaintiff’s citizenship, but the relevant
citizenship is that of the decedent, not his legal representative. See 28 U.S.C. § 1332(c)(2)
(“[T]he legal representative of the estate of a decedent shall be deemed to be a citizen only of the
same State as the decedent . . . .”).
Remington Model 700 Bolt-Action Rifle (“M700”). The M700 rifle is at issue in
The M700 Rifle
1. Background and Relevant Mechanics
In 1962, Remington introduced the M700 rifle, and to date, nearly five
million have been sold to the public. The M700 rifle is a manually operated
firearm and, as the name indicates, uses a bolt-action mechanism. This means that
the opening and closing of the breech or chamber is operated manually by a bolt.
Originally patented in 1948 by Merle H. Walker and Philip R. Haskell, the M700
has a trigger assembly, often referred to as the Walker fire control, consisting of
the trigger, connector, sear, safety, and firing pin assembly. (See Charles Powell’s
Expert Report, at 3–5.)
The trigger is lever-style.
The connector, or trigger connector as it is
sometimes called, is an internal component of the firing mechanism that is set into
motion when the trigger is pulled. The connector is not attached to the trigger, but
is a slip fit. The connector is pushed into contact with the front of the trigger by
the trigger spring. Pressing the trigger initiates movement of the connector,
pushing it forward out from under the sear. The connector movement then causes
the sear to fall down along with the spring force of the firing pin head, causing the
chambered round to fire. (See Diagram, Doc. # 34, at 5.)
Important in this case is the amount of space between the sear and the
This is called “sear engagement” or “connector engagement.” As
Plaintiff’s expert, Charles Powell, opines, if the sear engagement is too low, then
the trigger assembly becomes overly sensitive, resulting in possible sear
engagement without the pull of the trigger. (See Powell’s Report, at 4–5, 53–56.)
A sear engagement between .020 and .030 of an inch is considered to be “a safe
and secure sear engagement and will not fire without a trigger pull.”
Diagram, Doc. # 34, at 4, 5.) However, when the sear engagement is smaller, the
rifle can discharge without the pull of a trigger if the rifle is bumped, dropped, or
The safety mechanism, when set to the “safe” or “on” position, is designed
to prevent the accidental or unintended discharge of a firearm. The M700 rifle
uses an external, manual safety. When the safety is in the “safe” or “on” position,
the safety arm raises the sear and holds it in place above the connector. (See
Diagram, Doc. # 34, at 5.) When the safety is moved to the “off” or “fire” position
and the rifle is cocked, the top of the connector supports the sear.
The M700 Rifle at Issue
The M700 rifle at issue was manufactured by Remington in 2003 and
purchased new by Plaintiff and her deceased husband in 2004. The rifle was used
for deer hunting. The M700 rifle is a 7mm-08 Bolt-Action Rifle, Serial No.
Facts Surrounding the Tragic Shooting Death of Plaintiff’s Husband
On November 26, 2011, the Saturday after Thanksgiving, in Autauga
County, Alabama, Plaintiff’s husband, Kenneth Seamon, was killed by a gunshot
wound to the chest from his M700 rifle while deer hunting from a tree stand.
There were no eye witnesses. When he was found, Mr. Seamon was in an elevated
tree stand with his right hand in a “grasping position.” The rifle was on the ground
some thirteen feet below, and a lanyard or “pull rope” was attached to the rifle by
two carabiners. The other end of the lanyard was attached to the tree stand. There
is one report documenting that “the rope was wrapped or tangled around the scope
and also the safety mechanism.” (Grady Myers’s Investigative Synopsis, at 1
(Doc. # 34-3).) The safety was in the “fire” or “off” position, and a spent cartridge
casing was in the rifle’s chamber. There was no “gunshot residue” found on Mr.
Seamon or his clothing “as would be [found in] a close contact wound.” (Officer
Jerry McMichael’s Dep., at 76–77 (Doc. # 40-7).)
The Testimony of Plaintiff’s Expert, Charles Powell
Plaintiff’s liability expert is Charles Powell (“Powell”), a proposed expert in
the field of metallurgical engineering.
Mr. Powell conducted physical
examinations of the M700 rifle at issue, including x-ray computer tomography and
performed a series of fire-control function tests on the rifle (e.g., the fire-on-safetyrelease test, “fire on bolt closing or fire on bolt opening” test, safety-function test,
and trigger-function test), and a trick test. Remington’s expert, Derek Watkins,
performed the same tests on the rifle, and it is undisputed that the rifle passed the
fire-control-function tests and the trick test when performed by both experts.3 It
also is undisputed that, during testing, the only way Mr. Powell could make the
rifle fire was by pulling the trigger when the safety was in the “off” position, which
is the manner in which the rifle was designed to function.
Notwithstanding that the firearm passed these particular tests and fired as
designed with the pull of the trigger, Mr. Powell formed an opinion that, on the day
in question, the rifle fired without the pull of the trigger as a result of a design
defect in the Walker trigger. The alleged defect is the inclusion of the connector in
the design of the rifle’s trigger mechanism. (Powell’s Report, at § 6.3.) “The
inadvertent firings of Remington rifles with a Walker fire control design, like the
subject rifle, occur because this fire control design includes a Connector that does
not reliably return to full engagement with the Sear each time the rifle bolt is
cocked.” (Powell’s Report, at § 6.12.) Mr. Powell contends that this known defect
allows unspecified debris or contaminants inside the trigger mechanism, thereby
Mr. Powell and Mr. Watkins elaborate on the nature of these tests in their expert
reports, and additionally, Mr. Powell expounds upon the various tests in his deposition.
reducing the amount of sear engagement below the safe range of between .020 and
.030 of an inch.4 As to the rifle at issue, Mr. Powell opines that deposits of dirt and
lubricants were between either the connector and the sides of the fire control
housing or between the trigger and the connector. Mr. Powell explains:
Upon disassembly and examination of the subject rifle, particles and
deposits were noted on the outside and inside of the fire control
mechanism. These are the types of deposits that have been shown to
be sources of interferences for the connector sear engagement,
reducing its value at the time of the firing of the subject rifle during its
use by Mr. Seamon.
(Powell’s Report, at §§ 6.3.1–6.4; see also Powell’s Dep., at 42 (explaining that the
deposits on the subject rifle were lubricant and dirt deposits).) He explains that
these deposits “displace[d] the connector away from the trigger body,” keeping
“the connector at a low engagement” of .007 of an inch or less. (Powell’s Dep.,
at 42–44, 76; Powell’s Report, at §§ 6.3.1, 6.4.)
He opines that this low
engagement allowed the rifle to fire without a trigger pull as a result of a “jar-off.”5
According to Mr. Powell’s report, the rifle’s connector floats on top of the trigger body
inside the firearm, but is not bound to it. When the trigger is pulled, the connector is pushed
forward, allowing the sear to fall and fire the rifle. And “[e]very time the rifle is fired, the
connector snaps forward, leaving a small gap between the trigger body and the Connector rear
surface.” (Powell’s Report, at § 6.3.) “Slow motion video has shown that, as a rifle is fired, the
Connector also whips back and forth from the trigger surface due to rifle movement generated
forces.” (Powell’s Report, at § 6.2.) According to Mr. Powell, dirt and debris can then become
lodged in the space created between the connector and the trigger, preventing the connector from
returning to its original position. This results in precipitous engagement of the connector and sear
– a condition that Mr. Powell concludes causes the rifle to fire, without pulling the trigger, when
it is jarred.
The opinions of Derek Watkins, Remington’s expert, are not subject to a Daubert
challenge. It is noted, however, that, contrary to Mr. Powell’s opinions, Mr. Watkins opines that
Mr. Powell believes that the “jar-off” firing as to the subject rifle was caused by
“external forces acting on the rifle while Mr. Seamon was seated in his tree stand,”
such as by “contact between the subject rifle and the tree, the pull rope, and the
ground if the rifle fell.” (Powell’s Report, at § 6.3.1.)
Mr. Powell concedes that exactly how the rifle discharged without a trigger
pull is unknown; however, he is unaware of “any evidence that the trigger was
pulled,” and his review of documents did not reveal “anything that would have
grabbed the trigger as [Mr. Seamon] was raising or lowering the rifle.” (Powell’s
Dep., at 98.) Mr. Powell also concedes that the rifle did not fail a jar-off test.
During his deposition, he confirmed that “rapidly opening and closing the bolt with
the safety off” is part of the jar-off test (Powell’s Dep., at 29), and the rifle did not
fail that test. Another type of jar-off test, which Mr. Powell did not perform on the
subject rifle, involves, in its simplest terms, cocking the rifle and dropping it or
hitting it with a pendulum. (Powell’s Dep., at 29–30.) Mr. Powell did not conduct
this type of jar-off test on the rifle because, during his inspection, he did not
observe a “continuous low [sear] engagement.”
(Powell’s Dep., at 29.)
Powell believes that, on the date of the shooting death, the precipitously low sear
engagement was caused by the presence of debris and oil deposits, but that by the
“no manufacturing or design defects exist in the subject M700 rifle,” that “[d]uring repeated
testing and functions of the subject M700 rifle, the rifle would not fire absent a trigger pull,” and
that “the subject M700 rifle fired at the time of the shooting because it was loaded, cocked, the
safety was in the ‘Fire’ position and the trigger was pulled.” (Watkins’s Report, at 26.)
time he received the rifle for testing, the “debris and oil deposits [were] not holding
the connector back” any longer. (Powell’s Dep., at 45.)
Notwithstanding that Mr. Powell did not find any debris or contaminant
interference causing a reduced or dangerously low sear engagement, it is Mr.
Powell’s opinion that a jar-off occurred and killed Mr. Seamon. Mr. Powell bases
his opinion upon the description of the accident, the presence of dirt and lubricant
deposits “that have been shown to be sources of interferences for the connector
sear engagement,” and his review of documents produced by Remington detailing
occurrences in historical testing of the “firing of a Remington Arms rifle with a
Walker trigger, whose sear engagement has been reduced by interferences.”6
(Powell’s Report, at § 6.4; see also § 6.10.)
In his report, Mr. Powell also explains that the subject rifle failed the regain
[I]f the trigger is partially pulled and then released, the connector will
not return to the full engaged position. In my examination, I found
that the trigger could be partially pulled by hand and left at an
Engagement Length of only 0.006”, far below the manufacturing
standard minimum of 0.020”-0.025”. This value could be found to be
even lower through microscopic testing with gradual application of
Mr. Powell also served as the plaintiffs’ expert in another lawsuit against Remington in
the United States District Court for the Northern District of Oklahoma (the “Gurley suit”). In the
Gurley suit, Mr. Powell testified that the Remington Model 700 has an inherent defect from the
use of the Walker fire control system. In that case, he opined that the accident rifle most likely
fired without a trigger pull when the rifle’s safety came in contact with barbed wire, causing the
safety to release and the rifle to discharge without a trigger pull. (See, e.g., Powell’s Dep., at 56–
57 (Gurley case) (Doc. # 34-8).); see also T.G. v. Remington Arms Co., No. 13cv33, 2014 WL
1310285, at *5 (N.D. Okla. 2014) (opinion on summary judgment).
force. This very low engagement would allow the rifle to fire from
external forces without pulling the trigger. The measured Sear-Safety
Lift Height is appropriate and Connector Overtravel Length very large
for this fire control designs [sic].
(Powell’s Report, at § 6.5; see also Powell’s Dep., at 77–79.) Although Mr.
Powell believes that a partial pull of the M700’s trigger also could cause a
precipitous sear engagement (Powell’s Dep., at 76 (Gurley case)), Mr. Powell does
not indicate in his report whether he believes that a partial trigger pull, as he has
described it, is what caused the rifle to discharge. Nor does he cite any evidence in
his report suggesting that the trigger was partially pulled in the manner he
describes. During his deposition in this case, Mr. Powell identified the rifle’s
failure to pass the regain test as a defect, but as to causation, Mr. Powell was
equivocal. He testified:
Are you aware based on your review of all the materials you
reviewed in the Seamon case of any evidence that the . . . trigger on
the subject rifle was ever partially pulled before the accident when the
safety was in the fire position?
A. I don’t know. It certainly could have been if that’s what reduced
it to a low engagement, but I have no evidence one way or the other.
Q. [H]ave you formed an opinion to a reasonable degree of certainty
that such a partial trigger pull occurred here in this case before the
time of this accident?
A. I . . . can opine that if that occurred, it would reduce it to a very
dangerous state and leave it there. But . . . I don’t have any . . . way of
looking at the accident that can tell me which exactly caused the
reduction in the engagement. Something did, but I don’t know . . .
which mode did.
(Powell’s Dep., at 82–83.)7 He explained further:
Q. [F]or this failure to regain that you found in this gun to have been
causally related to this accident, the trigger would have had to have
been pulled partially when the safety was in the fire position and then
Mr. Seamon did not return the safety to the safe position before
attempting to lower or raise the rifle from the tree?
A. All I could tell you is that at some point the safety would have
had to have been in the F position when it was partially pulled, and
the safety could not have been moved back to the safe position in
order for the regain to be a part of this particular injury.
(Powell’s Dep., at 83–84.)
On February 11, 2013, Plaintiff filed the operative First Amended Complaint
to recover punitive damages from Remington for the wrongful death of her
husband, pursuant to Alabama’s Wrongful Death Statute, Alabama Code § 6-5410. Plaintiff asserts five state-law claims: (1) Alabama Extended Manufacturers’
Liability Doctrine (“AEMLD”) (Count I); (2) manufacturer’s liability for failure to
warn (Count II); (3) negligent and wanton design and manufacture (Count III);
(4) negligent and wanton failure to warn (Count IV); and (5) loss of consortium
(Count V). Plaintiff alleges that the design defect in the subject M700 rifle caused
the rifle to unexpectedly discharge without pulling the trigger, which resulted in
the death of Plaintiff’s husband. Plaintiff alleges that Remington was aware of
While Mr. Watkins agrees that the subject rifle fails the regain test, he contends that the
failure “was caused by the improper adjustments made to the incident rifle after it left the
factory,” but that, in any event, “[t]he shooting incident was not caused by any failure to regain.”
(Watkins’s Report, at 14.)
these defects and that it has “exhibit[ed] a complete indifference or conscious
disregard for the rights of safety of users and consumers of the rifle and the general
public.” (Doc. # 20 ¶ 50.)
This opinion proceeds in three parts. Part A examines Plaintiff’s motion for
partial summary judgment, which argues for the application of offensive collateral
estoppel. Part B examines Remington’s Daubert motion to exclude the causation
opinion of Plaintiff’s liability expert, Mr. Powell. Part C discusses Remington’s
motion for summary judgment, the fate of which hinges on the outcome of the
Plaintiff’s Motion for Partial Summary Judgment
Plaintiff moves for partial summary judgment on the issue of the M700’s
product defect based on the allegedly preclusive effect of judgments against
Remington in three other cases: (1) Lewy v. Remington Arms Co., 836 F.2d 1104
(8th Cir. 1988), a case tried in the Western District of Missouri; (2) Campbell v.
Remington Arms, Co., 958 F.2d 376 (9th Cir. 1992), a case tried in the District of
Alaska; and (3) Collins v. Remington Arms, Co., No. 91-11-10856-CV (D.
Maverick Cnty., Tex. 293d Jud. Dist. May 1, 1994), a Texas state court case.
Specifically, Plaintiff relies on the doctrine of offensive collateral estoppel. But
Remington argues that the decisions in Lewy, Campbell, and Collins are
distinguishable. Remington has the better argument.
Collateral estoppel bars re-litigation of an issue where: “(1) the issue at
stake is identical to the one involved in the earlier proceeding; (2) the issue was
actually litigated in the earlier proceeding; (3) the determination of the issue . . .
[was] a critical and necessary part of the earlier judgment; and (4) the party against
whom collateral estoppel is asserted . . . had a full and fair opportunity to litigate
the issue.” 8 Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1180 (11th Cir.
2013) (citation and internal quotation marks omitted); see also Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 331 (1979) (extending the application of collateral
estoppel to allow for its offensive use and explaining that the elements are the
same whether a party seeks to use the doctrine “offensively” or “defensively”).
Notwithstanding federal common law’s approval of offensive collateral estoppel, it
“should be cautiously applied, and may not be used when its application would be
unfair to the defendant.”9 Ray v. Birmingham City Bd. of Educ., 845 F.2d 281, 283
An offensive use of collateral estoppel occurs when a plaintiff who was not a party to
the first lawsuit seeks to preclude a defendant from relitigating an issue the defendant lost in a
prior case. Deweese v. Town of Palm Beach, 688 F.2d 731, 733 (11th Cir. 1982).
The parties do not squarely address the appropriate law governing the collateralestoppel analysis. At issue are the preclusive effects of decisions from a Texas state court and
two federal courts. As to the Texas state court decision, Texas principles governing collateral
estoppel apply. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011) (“In
considering whether to give preclusive effect to state-court judgments under res judicata or
collateral estoppel, the federal court applies the rendering state’s law of preclusion.”). As to the
two federal-court judgments, federal common law applies. See Tampa Bay Water, 731 F.3d
(11th Cir. 1988). The Eleventh Circuit also has cautioned that offensive collateral
estoppel “should not be extended indiscriminately to tort cases where the factual
circumstances in each case differ and no hard and fast legal standard has emerged
from the developing case law.” Deviner v. Electrolux Motor, AB, 844 F.2d 769,
774 (11th Cir. 1988).
Although the controlling law permits a plaintiff to rely on offensive
collateral estoppel, its application is not warranted here. The Lewy, Campbell, and
Collins cases were the subject of a collateral-estoppel analysis in O’Neal v.
Remington Arms, No. 11cv4182, 2014 WL 993020 (D.S.D. Mar. 13, 2014), and
Remington urges the court to reach the same conclusion that the O’Neal court did.
The O’Neal court rejected the same argument Plaintiff makes here, namely, that
Remington is precluded from litigating whether the Model 700 rifle is defective
based upon the judgments in Lewy, Campbell, and Collins.
In O’Neal, the wife and personal representative of the estate of her deceased
husband brought a products liability and failure-to-warn action against Remington.
at 1179 (“[F]ederal preclusion principles apply to prior federal decisions, whether previously
decided in diversity or federal question jurisdiction.”). It appears that there are no material
differences in the application of the doctrine of offensive collateral estoppel under Texas law and
federal common law, at least insofar as applied in this case; hence, a single analysis should
suffice. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 n.7 (Tex. 1994)
(“Although some of the defendants argue that the federal law of collateral estoppel applies in this
case, we need not decide the issue. We perceive little difference between the federal courts’
formulation of the doctrine [of collateral estoppel) and our own.”). Compare DeLeon v. Lloyd’s
London, Certain Underwriters, 259 F.3d 344, 348 (5th Cir. 2001) (observing that Texas law
recognizes offensive, non-mutual collateral estoppel), with Parklane Hosiery Co., 439 U.S.
at 331 (same).
The husband and a friend, who were on a deer-hunting excursion, stopped the truck
to shoot a deer in sight. The friend moved the safety of the M700 rifle from the
“on” position to the “off” position, and it discharged. The husband was shot and
killed. The O’Neal plaintiff moved for partial summary judgment on the issue of
product defect based upon collateral estoppel and cited the Lewy, Campbell, and
Collins cases to support her argument. Id. at *3–4. After examining each case, the
district court observed that “the issues decided in the Lewy, Campbell, and Collins
cases are not identical to the issue presented here or there was not a final judgment
on the merits, and thus, whether the particular [M700] rifle in this case is defective
was not actually litigated in previous cases.” Id. at *4.
The court has reviewed O’Neal, as well as Lewy, Campbell, and Collins, and
finds O’Neal’s analysis distinguishing the latter three cases to be persuasive and
As the O’Neal court explained, in Lewy, although the jury
returned a verdict in favor of the plaintiffs on a design defect claim that the rifle’s
control mechanism was susceptible to firing upon the release of the safety, the
Eighth Circuit remanded the case for a new trial; hence, the court concluded that
the Lewy decision did not amount to “a final judgment on the merits.” Id. at *3.
Lewy does not, therefore, satisfy an essential element of collateral estoppel.10
Additionally, it also may be that the issue in this case is not sufficiently similar to that
in Lewy, although it is not entirely clear from the record or arguments. As Mr. Powell explains, a
jar-off occurs when the safety is in the “fire” or “off” position and “the connector does not
support the sear at all,” and a jar-off generally is not related to inadequate sear lift. Mr. Powell
Turning to Campbell, the O’Neal court explained that Campbell involved an M700
barreled action rifle that had undergone significant changes and customizations
after it left Remington’s possession. See O’Neal, 2014 WL 993020, at *3. The
Campbell jury found in favor of the plaintiff on a products liability claim that the
fire control system of the Model 700 rifle was defective because it fired on bolt
closure, but as the O’Neal court pointed out, the verdict form did not identify
whether the defect was a design defect or a manufacturing defect. “Because a
manufacturing defect claim involves a specific product, [collateral estoppel] would
only apply in later litigation if the lawsuit involved the exact same product.”
O’Neal, 2014 WL 993020, at *3 & n.2. The M700 rifle in this action – as in
O’Neal – appears to be different from the M700 rifle in Campbell, and Plaintiff has
not demonstrated the contrary.
Therefore, collateral estoppel is inapplicable
because the issues are not identical.
Finally, in Collins, the M700 rifle allegedly was defective because the safety
had to be in the fire position when it was loaded and unloaded, and the rifle did not
attributes inadequate sear lift to a defective condition existing when the trigger is pulled while
the safety is in the “on” or “safe” position, and the “connector gets trapped in front of the sear
ledge,” and consequently will “fire on safe release.” (Powell’s Dep., at 12–13, 16, 27.) The
allegedly defective condition in Lewy appears to be one of inadequate sear lift, which the court
understands that Mr. Powell is not contending existed in this case. (See Powell’s Dep., at 85
(The subject rifle “appeared to have safe and adequate lift.”); see also Powell’s Report, at § 6.5
(“The measured Sear-Safety Lift Height is appropriate.”); § 6.6 (“The measured Sear-Safety Lift
Height on this rifle indicates that the two position safety lever, a component of the fire control,
was in the [‘fire’] position when the rifle discharged. There was no indication that the firing pin
head slipped past the sear held upward in engagement by the safety cam when the safety lever
was in the Safe position.”).)
have a safety feature to prevent the discharge that occurred without a trigger pull
when the rifle was being loaded or unloaded. See Collins v. Remington Arms Co.,
JVR No. 161125, 1994 WL 866816 (Tex. Dist. May 1994). Again, as in O’Neal, a
different issue is presented in this action. Here, Plaintiff avers that the M700 rifle
discharged without a pull of the trigger when the safety was in the off or “fire”
position. Consequently, the defect at issue in the present case was not actually
litigated in Collins; therefore, collateral estoppel is inapplicable based upon the
judgment in Collins. In sum, neither Lewis, nor Campbell, nor Collins provides a
basis for applying collateral estoppel in this case. Plaintiff’s Motion for Partial
Summary Judgment is due to be denied.11
Remington’s Motion to Exclude the Causation Opinion Testimony of
Plaintiff’s Liability Expert, Charles Powell
There is no dispute that causation is an essential element of Plaintiff’s statelaw claims.12 See Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 31 (Ala.
2003) (To succeed on a claim under the AEMLD, the plaintiff must prove, among
other elements, “that an injury was caused by one who sold a product in a defective
condition that made the product unreasonably dangerous to the ultimate user or
It is unnecessary to address Remington’s other arguments against the application of
offensive collateral estoppel.
In this diversity case, Alabama’s substantive law governs Plaintiff’s burden of proof on
causation, but federal law governs “whether the expert testimony proffered to prove causation is
sufficiently reliable to submit it to the jury.” Hendrix, 609 F.3d at 1193.
consumer.” (citation and internal quotation marks omitted)); see also McClain v.
Coca-Cola Co. Distributor, No. 08cv614, 2009 WL 2985693, at *7 (M.D. Ala.
Sept. 16, 2009) (explaining that for claims alleging failure to warn under a
negligence theory and under the AEMLD, the plaintiff must prove that the
defendant’s breach of a duty to warn “proximately caused the plaintiff’s injuries”).
And in products liability cases, “ordinarily, expert testimony is required because of
the complex and technical nature of the commodity.” Verchot v. Gen. Motors
Corp., 812 So. 2d 296, 303 (Ala. 2001) (citation and internal quotation marks
Plaintiff relies upon the opinion of her expert, Mr. Powell, to prove
causation, but Remington argues that Mr. Powell’s causation opinion testimony
does not meet muster under Rule 702 and Daubert.13 Remington contends that,
absent Mr. Powell’s opinion testimony on causation, Plaintiff cannot establish a
prima facie case on any of her claims. There is no dispute that Plaintiff’s claims
rise or fall on the admissibility of Mr. Powell’s testimony.
Remington’s arguments for the exclusion of Mr. Powell’s opinion testimony
on causation fall within two categories.
First, Remington contends that Mr.
Powell’s causation opinion lacks factual support and, thus, rests on faulty
assumptions. Specifically, Remington challenges the factual basis of Mr. Powell’s
Remington does not presently challenge either Mr. Powell’s opinion that the use of the
connector in the Walker trigger is a design defect or Mr. Powell’s qualifications.
testimony either that a partial trigger pull occurred prior to the accident or that
lubricant and dirt deposits caused the precipitous sear engagement that allowed the
rifle to fire, when jarred, without a trigger pull when the safety was “off” (in the
Second, Remington argues that Mr. Powell fails to rule out
alternative, non-defect causes for the shooting. These arguments, at their core,
challenge the relevance and reliability of Mr. Powell’s causation opinion
testimony. The arguments are addressed in turn.
Remington contends that Mr. Powell’s causation opinion testimony lacks a
factual foundation in two significant ways.
First, Remington focuses on the
accident scene and the lack of eyewitness testimony or other evidence showing
(1) that, prior to the shooting, the rifle’s trigger was partially pulled while the
safety was “off” (in the “fire position”), (2) how Mr. Seamon was handling the
rifle at the time of the shooting, and (3) that an “external force” caused the rifle to
discharge without a trigger pull. Remington contends that the record is devoid of
any “information as to where the rifle was located when it discharged, e.g., in Mr.
Seamon’s grasp, in contact with the tree stand or hunting gear, pressed against the
tree, or in contact with the lanyard or its carabiners (any of which could cause
inadvertent trigger activation).” (Doc. # 34, at 16–17; see also Doc. # 34, at 19
(contending that this case “is unprecedented in its lack of eyewitness testimony
about how the rifle was being handled at the moment of discharge”).) Hence,
Remington contends that there is “no reliable basis to conclude the rifle fired
without a trigger pull because of a ‘jar-off.’” (Doc. # 34, at 2.) Remington also
emphasizes that, during Mr. Powell’s “own post-incident testing of the rifle, it
would not fire without a simultaneous trigger pull” and that “the only way” either
Mr. Powell or Remington’s expert could make the rifle fire “was by pulling the
trigger when the safety was ‘OFF.’” (Doc. # 34, at 17.)
Second, Remington challenges as factually speculative Mr. Powell’s
“causation opinion that, at the precise moment of the shooting, debris or
contaminants had lodged in the trigger mechanism displacing the connector away
from the trigger body creating a precipitous sear engagement.” (Doc. # 34, at 13.)
Remington says that the type of debris is “unknown” (Doc. # 34, at 7), and points
out that, as its expert opines, the x-ray of the rifle revealed that “no debris or
contaminants were interfering with the trigger to connector relationship.”
(Watkins’s Report, at 21.) Additionally, Remington emphasizes that, in postaccident testing of the rifle, Mr. Powell “looked for but found no debris or
contaminants interfering with the rifle’s safe and secure sear engagement.” (Doc.
# 34, at 20.) Remington also points out that Mr. Powell admitted that he has never
seen in accident rifles, including the M700 rifle at issue, “debris or lubricant
deposits between the side plates and the connector causing a dangerously low
engagement.” (Powell’s Dep., at 45.) In short, Remington contends that the
absence of supporting facts renders Mr. Powell’s causation opinion “nothing more
than speculation and conjecture.” (Doc. # 34, at 18.)
Plaintiff contends that there is some evidence to support Mr. Powell’s theory
that an external force jarred the rifle, causing it to fire without a trigger pull. She
contends that there is evidence to rule out that Mr. Seamon himself pulled the
trigger that discharged the fatal bullet. She focuses on the evidence demonstrating
an absence of gunshot residue on Mr. Seamon’s clothing and the testimony of an
officer and another of Plaintiff’s experts, who both concluded that the rifle was at
least five feet from Mr. Seamon at the time of its firing.
Plaintiff does not
specifically confront, however, Remington’s argument, which relies on Mr.
Powell’s deposition testimony, that he has “no evidence one way or the other” of a
partial trigger pull prior to the accident. (Powell’s Dep., at 82.) Plaintiff also cites
Mr. Powell’s deposition testimony in which he opines that dirt and lubricant
deposits were displacing the connector away from the trigger body, but Plaintiff
does not address Remington’s argument attacking the alleged absence of facts that
on the date of the accident, such deposits caused a precipitously low sear
“It is an abuse of discretion to admit expert testimony which is based on
assumptions lacking any factual foundation in the record.”
Steckyk v. Bell
Helicopter Textron, Inc., 295 F.3d 408 (3rd Cir. 2002); Lauzon, 270 F.3d at 695
(“We would agree that where opinion testimony has no support in the record that it
should be excluded.”). Stated differently, an expert’s opinion cannot be based
upon “unsupported speculation.” Daubert, 509 U.S. at 590; see also Weisgram v.
Marley Co., 169 F.3d 514, 519 (8th Cir. 1999) (providing that expert testimony is
nothing more than “patent speculation” when there is “no evidence in the record”
to support it.), aff’d, 528 U.S. 440 (2000); see also Fed. R. Evid. 702 advisory
committee’s note (“The trial judge in all cases of proffered expert testimony must
find that it is properly grounded, well-reasoned, and not speculative before it can
And, “[w]here an expert’s opinion is based on insufficient
information, the analysis is unreliable.” Paz v. Brush Engineered Materials, Inc.,
555 F.3d 383, 388 (5th Cir. 2009); see also Fed. R. Evid. 702 (expert testimony
must be “based upon sufficient facts or data”). For the reasons that follow, Mr.
Powell has formed his opinions based upon facts that are not in this record.
No Evidence of a Partial Pull of the Trigger
Mr. Powell’s testimony that, if at some point prior to the shooting, the
trigger was partially pulled while the rifle’s safety was in the “fire” position, the
partial trigger pull could have reduced the sear-connector to an unsafe level, finds
no factual support in the record. Mr. Powell candidly admits that he “has no
evidence one way or the other” whether the “trigger on the subject rifle was ever
partially pulled before the accident when the safety was in the fire position.”
(Powell’s Dep., at 82–83.) When directly asked, if he had “formed an opinion . . .
that such a partial trigger pull occurred here,” he answered, “I don’t have . . . any
way of looking at the accident that can tell me [what] exactly caused the reduction
in engagement. Something did, but I don’t know what.” (Powell’s Dep., at 83.)
Additionally, Plaintiff has not pointed to any circumstantial evidence in the record,
or even argued that such evidence exists, from which it would be reasonable to
infer that, prior to the fatal shooting, there was a partial pull and release of the
trigger while the safety was in the “fire” position. On this factual void, Mr.
Powell’s opinion testimony that a partial trigger pull occurred is inadmissible
because it is based upon “unsupported speculation” and, more particularly,
assumes facts that are not in the record. Daubert, 509 U.S. at 590.
No Evidence that a Jar-off Was the Precipitating Force
The court turns to whether, on the summary judgment materials, the
inferences arising from the circumstantial evidence would permit a jury reasonably
to conclude that it is more likely than not that the rifle discharged without a trigger
pull, while the safety was “off,” as a result of an external force that jarred the rifle
(a “jar-off”). For the reasons that follow, the inference that an external force jarred
the rifle, contrary to Plaintiff’s urging, is unreasonable on the scant facts.
Initially, here are the facts from the scene that can be deduced. Mr. Seamon
was found dead in an elevated tree stand with his right hand in a “grasping
position,” and his rifle, which was in the “fire” position and attached to a lanyard
by carabiners, was on the ground some thirteen feet below. There is, as Plaintiff
urges, some circumstantial evidence from which to infer that Mr. Seamon himself
did not pull the trigger, namely, the absence of gunshot residue on Mr. Seamon’s
clothing (a fact leading other witnesses in this case to conclude that the rifle was
not within Mr. Seamon’s arm’s reach when it fired). There also is some evidence
that there was a clear path – free of branches and other physical obstructions – for
the lanyard to travel as the gun was hoisted or lowered. And, it is undisputed that
the rifle fired a bullet that killed Mr. Seamon. So it is assumed, for summary
judgment purposes, that Mr. Seamon did not fire the fatal shot and that a hanging
branch did not get caught in the trigger mechanism when the rifle was raised or
These facts, however salient they may be, are not enough to cross the line
between unsupported speculation and reasonable inference with respect to whether
there was an external force that jarred the rifle and precipitated the firing of the
rifle without a trigger pull. What facts are there that the rifle was subject to jarring
from an external force? Mr. Powell does not say or portend to know how the facts
played out on the day of the fatal shooting.14 Is it possible that Mr. Seamon lost his
grip on the rope and that the rifle crashed onto the ground? Is it possible that Mr.
Seamon snatched the rope, which jolted the rifle? Is it possible that Mr. Seamon
raised or lowered the rifle with gentle ease? Is it possible that someone else shot
Mr. Seamon with his own rifle? All of these factual possibilities and any number
of others are unanswered by the evidence and, thus, fall within the realm of the
unknown. This goes to show that Plaintiff has not shown how the record supports
the inferences upon which Mr. Powell relies for his opinion testimony that this
case “may have been a jar off.” (Powell’s Dep. 21.) “May not have been” is an
equally plausible inference. Not only is a factual basis missing for his opinion, but
Mr. Powell also acknowledges that he was unable to replicate a “jar off” in his
testing and inspection of the subject rifle. (Powell’s Dep. 21–22, 29–30.)
No Evidence of Dirt and Debris in the Fire Control Housing
Moreover, even if it is assumed that an external force was applied to the
rifle, Mr. Powell’s theory also requires that lubricant and dirt deposits were so
situated within the fire control housing – between the trigger body and connector –
as to cause a precipitously low sear engagement. Mr. Powell concedes that, when
he examined the rifle, “debris and oil deposits [were] not holding the connector
(See, e.g., Powell’s Dep. at 85–86 (stating that he did not know if Mr. Seamon “was
raising as opposed to lowering the rifle when this occurred,” or “how . . . the rifle [was] situated
on the lanyard,” and stating that the “only information [he] ha[s] on the accident is from the
back” any longer, and he concedes that in all of his testing of the M700 rifle, he
has never seen the condition he proposes existed in this rifle at the time of the
shooting. (Powell’s Dep., at 45.) He only can hypothesize that the debris had
fallen out of the rifle between the time of its fatal firing and the time he examined
it. To reach the same opinion as Mr. Powell, however, one must engage in a
metaphysical process of conceptualizing that at the exact moment the rifle fired, a
sufficient quantity of dirt and debris had accumulated and then lodged precisely in
the right location – i.e., between the trigger body and the connector. In short,
Plaintiff has not demonstrated by a preponderance of the evidence that Mr. Powell
“sufficiently connected the proposed testimony with the facts of the case.”
Lauzon, 270 F.3d at 687; see also Weisgram, 169 F.3d at 519 (holding that an
expert on fire cause and origin could not testify that the heater had malfunctioned
because his opinion relied “on inferences that ha[d] absolutely no record support”
and on his “own unsubstantiated theories”).
Elimination of Alternative Causes of the Shooting
Remington also contends that Mr. Powell fails to rule out “alternative, nondefect related explanations for why the rifle may have discharged,” including that
the rifle fired because the safety was in the “fire” position and the trigger was
pulled. (Doc. # 34, at 12.) An expert “must at least consider other factors that
could have been the sole cause of the plaintiff’s injury” and must “provide a
reasonable explanation as to why he . . . has concluded that any alternative cause
suggested by the defense was not the sole cause of the plaintiff’s injury.” 15 Guinn
v. AstraZeneca Pharm. LP, 602 F.3d 1245, 1253 (11th Cir. 2010) (internal
quotation marks and citation omitted); see also Borum v. Werner Co., No.
5:11cv997, 2012 WL 2047678, at *13 (N.D. Ala. June 6, 2012) (rejecting the
expert’s causation opinion in a case where the plaintiff alleged a manufacturing
defect in a ladder, which collapsed while the plaintiff was on it, proximately
caused his injuries, because it failed to “account for other possible, if not probable,
causes of the ladder’s failure.”).
Based upon the foregoing authority, Mr. Powell does not adequately account
for the alternative theory that the rifle fired because the trigger was pulled. His
explanation is that he is unaware of “any evidence that the trigger was pulled”
(Powell’s Dep. at 98), but on this record, the converse equally is true: There is a
lack of evidence that the trigger was not pulled. The inference that the rifle fired
without a trigger pull is no more likely than the inference that it fired with a trigger
pull, and the inference is contrary to the evidence in this case that, in post-accident
testing, “[t]he only time the rifle fired [was] when we pulled the trigger.”
(Powell’s Dep., at 105.) For this reason as well, Mr. Powell’s opinion that the rifle
The factor focusing on the expert’s ability to rule out other causes is applied most often
“when addressing an expert opinion on causation arrived through a differential diagnosis,”
Lauzon, 270 F.3d at 693 n.7, such as in Guinn, but has been applied in other contexts as well,
such as in Lauzon and Borum.
fired without a trigger pull is “speculative, unreliable expert testimony.” Kilpatrick
v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citing Daubert, 509 U.S.
As the foregoing discussion demonstrates, Mr. Powell has little in the way of
facts to sustain his opinions on causation. His causation opinion is not sufficiently
reliable or relevant to be admitted under Rule 702 and Daubert. Accordingly,
Remington’s motion to exclude Mr. Powell’s expert testimony and opinion is due
to be granted.
Remington’s Motion for Summary Judgment
Remington’s summary judgment motion rests solely on the exclusion of Mr.
Powell’s expert testimony on causation. (See Doc. # 34, at 23 (“Plaintiff’s failure
to produce admissible expert causation testimony on an essential element of her
claim precludes her from making a prima facie case.”).) The inadmissibility of
Mr. Powell’s testimony on causation is, therefore, outcome-determinative of
Remington’s motion for summary judgment is due to be
Based on the foregoing, it is ORDERED that Plaintiff’s Motion for Partial
Summary Judgment (Doc. # 31) is DENIED, that Remington’s Motion to Exclude
the Causation Opinion of Plaintiff’s Liability Expert (Doc. # 34) is GRANTED,
and that Remington’s motion for summary judgment (Doc. # 34) is GRANTED.
DONE this 29th day of September, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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