Hays v. Connecticut Valley Arms Inc et al

Filing 49

OPINION AND ORDER granting 39 Motion to strike. 25 Motion to exclude is denied with instructions. Dr. Batzer is limited to his pre-affidavit opinions. 22 Motion for summary judgment denied without prejudice. An Amended Scheduling Order with a trial date and pretrial deadlines will issue. Signed by Chief Judge D. P. Marshall Jr. on 1/27/2020. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
PLAINTIFF

BRANDON HAYS

v.

No. 3:17-cv-325-DPM

BLACKPOWDER PRODUCTS, INC.
and John Does 1-2

DEFENDANTS

OPINION AND ORDER
1. As Hays was sighting the scope on his .50 caliber muzzleloader

in his rural backyard, the rifle's barrel exploded, badly injuring Hays's
left hand. He had bought the muzzleloader from his boss a few weeks
before. At that point, Hays described it as "Oh, brand new. It was
immaculate." NQ 23-1 at 12. His boss had fired it only a few times. On
two occasions, Hays shot the muzzleloader a couple of times without
incident, cleaning it after each use. On the day of the accident, Hays
shot the rifle twice, cleaned it, then put it aside to work on a plumbing
project with his fiance's brother, Nathan West, in the house Hays was
building on the property.
Hays and West did the project, then Hays decided to go back to
shooting. He wanted to continue sighting the scope in and show West
how to fire the muzzleloader. West was curious, never having been
around one. Just as his grandfather had taught Hays how to load and

fire a muzzleloader when Hays was a boy, Hays wanted to demonstrate
good gun handling to West and then let him fire the rifle.
West paced the distance and set up a cardboard target, as Hays
directed.

Hays loaded and pulled the trigger.

The primer - a

percussion cap-popped, but the muzzleloader did not fire. West saw
some smoke. This kind of misfire, as Hays would later say, is not
unusual. Hays's fiance, who was working in the partly built house
nearby, made a joke at this point, asking Hays whether he needed to
reload or just put a new primer in. Hays said, and she confirmed, that
he just replaced the primer. He took aim, fired, and the muzzleloader' s
barrel exploded. These are the material facts about Hays' s accident,
taken in his favor where genuinely disputed, as some are. Lindholm v.
BMW of North America, LLC, 862 F.3d 648,651 (8th Cir. 2017).

Hays' s theory against the muzzleloader' s manufacturer, BPI, is
that the steel in the barrel had a manufacturing defect, which caused
the explosion. Hays says he loaded and handled the rifle correctly. On
deposition, BPI' s former president testified that, if Hays had done
exactly what he said, Hays did nothing to cause the accident. Hays
pleads strict liability and negligent manufacturing, both rooted in the
allegedly defective barrel steel. BPI responds that Hays did something
to cause the explosion: either he reloaded the muzzleloader after the
cap misfired, perhaps distracted by West, or used an oversized patch,
or hadn't adequately rammed down the load, leaving an air pocket
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between the powder and the ball. One of the genuine factual disputes
is that West has testified that Hays reloaded the rifle after the misfire.
BPI leans on this testimony, while Hays emphasizes West's
acknowledged inexperience with muzzleloaders as well as his bipolar,
schizophrenia, and psychosis diagnoses. Each side has an expert. BPI
seeks to strike a belated affidavit from Hays' s expert, Dr. Stephen
Batzer, exclude his foundational testimony, and get summary
judgment. Hays responds that all (or at least some) of the expert's
affidavit is fine, his testimony should come in, and a trial is needed.
The Court must first settle the record, and then decide whether jury
issues exist about defect.
2. Dr. Batzer's affidavit is too much, too late. He prepared a
comprehensive and timely report, a rebuttal report, with a follow-up
email, and sat for two depositions. BPI' s expert likewise prepared more
than one report and gave a deposition. There were some last-minute
hurdles for both experts' work, because the muzzleloader' s elusive
ramrod finally turned up and had to be examined.

But, counsel

cooperated, the experts sprinted, and the parties met the Scheduling
Order's deadlines.

Those deadlines passed, and the parties jointly

advised the Court that all expert discovery was complete and the case
was on track NQ 21. BPI filed its motion for summary judgment and a

Daubert motion challenging Dr. Batzer' s opinions.

Then came the

affidavit, supporting Hays' s opposition to the potentially dispositive

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motions. Dr. Batzer' s affidavit is thirty pages long, with sixty or so
more pages of exhibits, which include materials old and new. The
affidavit mostly responds to Dr. Eric Guyer's (BPI' s expert) opinions:
that Hays probably made a loading error, either a double load or an air
gap. In his affidavit, Dr. Batzer recounted the results of new tests he
had conducted about the double load, considered test results from
other cases involving similar guns and air gaps, discussed additional
literature and videos reviewed, and revised his original opinion about
Hays being alone.
Hays acknowledges this new work's tardiness but says the delay
was substantially justified, harmless, or both within the meaning of
Rule of Civil Procedure 37(c)(l). The Court disagrees. The ramrod's
belated discovery did delay Dr. Guyer's report until mid-April, and his
deposition until late April. And at that deposition, Dr. Guyer homed
in on a "short start," caused by an air gap, as the most likely loading
error. But, in the fall of last year, BPI had disclosed its intention to offer
expert testimony about loading errors, including multiple projectiles,
an air gap, or both. And BPI's former president testified to the same
effect at his deposition around the same time. Dr. Guyer's mid-April
report highlighted both issues, and he came down on the air gap in late
April at his deposition. These potential causes, as Dr. Batzer confirmed,
are easily testable. He did not do so until after getting BPI' s potentially
dispositive motions. Hays highlights that Dr. Batzer had only one day
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in early May to complete his rebuttal report after getting the transcript
of Dr. Guyer's deposition. This no doubt created a bind. But Hays did
not seek an extension to do any more tests, and Dr. Batzer testified in
mid-May that he neither planned nor needed any more testing to
support his opinions. Hays is correct: an expert doesn't have to stand
mute on rebuttal.

E.g., Newell Puerto Rico, Ltd. v. Rubbermaid Inc.,

20 F.3d 15, 20-22 (1st Cir. 1994). But he can't speak new volumes at that
point, either.

The delayed testing and disclosures were not

substantially justified.
And they were prejudicial to BPI. Filing dispositive motions is a
watershed. As precedent recognizes, allowing new record material
thereafter on critical issues is often unfair. It can give the non-moving
party the opportunity to fill holes and correct mistakes with the guiding
benefit of the moving party's entire argument. Popoalii v. Correctional
Medical Services, 512 F.3d 488, 498 (8th Cir. 2008); Williams v. TESCO
Services, Inc., 719 F.3d 968, 976 (8th Cir. 2013); see also Petrone v. Werner
Enterprises, Inc., 940 F.3d 425,433 (8th Cir. 2019). Dr. Batzer' s new tests,

consideration of others' air-gap testing, and expanded literature
review, were not harmless.

They were not merely explanatory or

marginal supplements. They were significant. The Court also declines
Hays' s request to cull. Dr. Batzer' s belated affidavit is a tightly woven
document, an argument largely addressed to BPI' s motion briefing,

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which would be hard to unweave. The Court will not consider the
affidavit.
3. The next issue is the admissibility of Dr. Batzer' s foundational
opinions. Rule of Evidence 702 and Daubert govern. Judge Holmes ably
summarized this law in Schipp v. General Motors Corporation,
443 F. Supp. 2d 1023, 1027-28 (E.D. Ark. 2006).
BPI reserves any challenge to Dr. Batzer's expertise.

His

credentials are solid - a Ph.D. in mechanical engineering, a Michiganissued professional engineer's license, board certification as a forensic
engineer, a fellow of the National Academy of Forensic Engineers,
twenty years of experience in the U.S. Army's Ordinance Corps, and
lots of experience as a range safety officer in black powder cartridge
competitions. Dr. Batzer is qualified.

Daubert review is about the expert's methods, not his conclusions.
Is the opinion sufficiently reliable to be helpful to the jury? Both experts
agree on the possible causes of this accident. To boil it down, Dr. Guyer
concludes that Hays made a mistake, either loading the rifle twice or
leaving an air gap that caused a short start, while Dr. Batzer concludes
that there was a defect in the barrel's steel-" a hidden metallurgical
flaw" -which initiated a crack and catastrophic barrel failure.
NQ 33 at 4.

BPI has no quarrel with Dr. Batzer's general method-akin to a
differential diagnosis - of ruling out possible causes to arrive at the
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most likely one. BPI makes two main attacks, though, on the specifics
of Dr. Batzer' s work. The company first says that Dr. Batzer made a
critical factual mistake, which undermines his conclusion that Hays
probably made no loading error. Dr. Batzer said, initially, that Hays
was alone, and so ruled out distraction. Of course Hays wasn't alone;
he was demonstrating to West how to shoot the muzzleloader, teaching
him. This is an important fact. Dr. Batzer got it wrong. But the mistake
is not fatal to this expert's opinion. A teacher can be distracted or
focused by a student. Discerning what probably happened is what
juries do best. A jury can discount or credit Dr. Batzer's conclusions
accordingly. In Daubert terms, this mistake is not a methodological flaw
that renders Dr. Batzer' s opinions wholly unreliable or inadmissible.
Shuck v . CNH America, LLC, 498 F.3d 868, 874-75 (8th Cir. 2007).

Putting aside some scuffling about nomenclature, BPI' s other
main point is that Dr. Batzer could-easily and conclusively-have
tested his opinion that the barrel steel in this muzzleloader had some
material defect with various destructive metallurgical tests. He didn't.
Therefore, BPI continues, his testimony should be excluded. This is a
powerful argument. The opinions of two experts in Schipp did not
survive a similar challenge. 443 F. Supp. 2d at 1029-31.
Hays responds that Dr. Batzer didn't do destructive testing
because there was reliable evidence from non-destructive tests and
other sources on which Dr. Batzer could base a solid opinion.
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NQ 33 at 11.

Hays points to Dr. Batzer's initial testing methods,

Dr. Batzer's

reviewing

of

Dr. Guyer's

report

and

deposition,

Dr. Batzer's retesting based on Dr. Guyer's report and deposition, and
Dr. Batzer' s second report and deposition. NQ 33 at 3-6. Both Dr. Batzer
and Dr. Guyer used industry-accepted methods in this case, with some
differences at the margin, but neither of them did destructive testing,
unlike in Schipp. NQ 33 at 11. That factual difference is crucial.

Instead

of pointing to best-practices or industry standards, BPI emphasizes that
Dr. Batzer's critical error was not doing destructive testing. Yet the
company is silent about its own expert's lack of destructive testing.

NQ 33 at 11.
The Daubert standard is flexible, rooted in the particular facts of
the case. Jaurequi v. Carter Manufacturing Company, Inc., 173 F.3d 1076,
1083 (8th Cir. 1999). The facts that BPl's expert did no destructive
testing either, and that BPI points to no industry standard requiring
destructive testing, are important.

The lack of a more probing

metallurgical analysis here goes to the weight of each expert's
testimony, not its admissibility. Shuck, 498 F.3d at 874-75. And how to
weigh their testimony is for the jury to decide.

Dr. Batzer's

foundational opinion is admissible under Daubert.
4.

Now the merits issue: Has Hays created a jury question on

defect, the core of both his claims? This Court covered the familiar
Arkansas law on point in a recent case: product liability claims usually

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need

an

expert's

backing.

Oliphant

FCA

v.

US

LLC,

No. 3:18-cv-33-DPM, NQ 42 at 3-4. Hays has some, and the liability
question is close. But taking the record in the non-movant' s favor,
everything could add

up:

Hays

getting the

"immaculate"

muzzleloader from his boss, who had fired it only a few times,
NQ 23-1 at 12 & Ng 33 at 2; Hays' s care of the rifle, Ng 23-1 at 12; Hays' s

testimony

that

he

did

everything

correctly

in

loading

the

rifle, NQ 23-1 at 13; and BPI' s former president acknowledging that, if
Hays did everything as he said, then the barrel should not have
exploded, NQ 34 at 11. All this-accepted as the truth, in combination,
and with inferences taken in Hays' s favor - is sufficient to support a
conclusion that the barrel had a manufacturing defect. The jury must
decide what happened.
5. The Court notes the Doe defendants. The time to name them
by amended pleading has passed.
dismiss them

without

prejudice

The Court will therefore

unless

a

party

objects

by

14 February 2020.

*

*

*

Motion to strike, NQ 39, granted. Motion to exclude Plaintiff's
expert, NQ 25, denied with instructions. Dr. Batzer is limited to his
pre-affidavit opinions. Motion for summary judgment, NQ 22, denied
without prejudice. An Amended Scheduling Order with a trial date
and pretrial deadlines will issue.
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So Ordered.
D .P. Marshall Jr.
United States District Judge

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