Manuel et al v. Traditional Sporting Goods Inc et al
Filing
104
OPINION and ORDER: Court ORDERS (1) Defendants' 51 Motion for Summary Judgment is passed re Plaintiffs' claim for punitive damages but DENIED in all other respects; and (2) this matter REMAINS PENDING. Signed by Judge Karl S. Forester on 12/07/2011.(DAK)cc: COR (RJD).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
CIVIL ACTION NO. 5:09-CV-406-KSF
TIFFANY MANUEL, ET AL.,
v.
PLAINTIFF,
OPINION AND ORDER
TRADITIONAL SPORTING GOODS, INC., ET AL.,
DEFENDANTS.
**********
This matter is before the Court upon the motion filed by the Defendants, Traditional Sporting
Goods, Inc. (“Traditions”) and Ardesa S.A. (“Ardesa”)(collectively, “Defendants”) [DE #51], for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on Plaintiff’s claims
for strict liability or gross negligence. This matter is fully briefed and ripe for review.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a tragic, fatal shooting incident involving the decedent, Kevin Wayne
Manuel. Early on the morning of December 20, 2008, Kevin was in his home preparing to go
hunting with his father, Jimmy Manuel, and brother, Derek Manuel. After getting dressed, Kevin
brought a bowl of ice cream to his wife, Tiffany, in their bedroom, removed his Traditions Tracker
209 muzzleloading rifle from his gun cabinet and laid it on the bed. He then took his rifle from the
bedroom and walked out of the bedroom toward the kitchen. Next, Tiffany heard a loud shot.
Somehow, Kevin’s rifle had fired, striking Kevin in the head. Kevin was pronounced dead shortly
thereafter.
There were no eyewitnesses to the incident, nor did Kevin ever meaningfully regain
consciousness after the incident.1 Thus, it is not known what caused the rifle to fire. For example,
it is unknown whether the rifle fired as a result of a defect, as a result of the rifle’s bolt handle getting
snagged or being snapped, as a result of the rifle being dropped to the ground, or for some other
unknown reason.
There is also no definitive evidence as to the condition of the rifle at the time of the incident.
Kevin had used the same rifle to go hunting with Jimmy and Derek Manuel two days before the
incident. Plaintiff’s brief states that it is “uncontroverted” that, the last time Kevin’s firearm was
seen, it was loaded and primed [DE #52 at p.3]. Plaintiff admits that Kevin sometimes kept his rifle
loaded and primed, notwithstanding the testimony from his father, Jimmy, that he instructed Kevin
to always unload his rifle before putting it in his vehicle or carrying it into his house. Plaintiff’s brief
also states that Kevin’s rifle was uncocked the last time it was seen. However, no witnesses were
able to definitively testify that Kevin’s rifle was, in fact, uncocked. Rather, the witnesses assumed
that Kevin’s rifle would have been uncocked, based on Kevin’s usual gun-handling practices. For
example, Kevin’s brother Derek testified that he could not remember whether or not Kevin’s rifle
was cocked, although he assumed that it was not “because we never – never left a cocked gun” [DE
#52-3 at p. 21]. Regardless of the testimony of the state of Kevin’s rifle at the end of his prior
hunting trip, no witnesses have been able to testify as to the state of Kevin’s rifle at the time of the
incident.
1
Kevin’s father, Jimmy Manuel, arrived at Kevin’s house shortly after the incident
occurred and testified that Kevin moved his eyes in response to his voice. However, Tiffany
testified that Kevin was unconscious and was never responsive to her in any way after the
shooting.
2
Despite the questions regarding causation, Plaintiff filed the instant action against
Defendants, alleging that Defendants negligently designed, manufactured, marketed and distributed
the Traditions Tracker 209 muzzleloading rifle and that Defendants unreasonably failed to warn of
the known and foreseeable hazards of the rifle.2 Specifically, Plaintiff alleges that Defendants were
grossly negligent in creating and/or allowing the following defects of the rifle to persist, as well as
failing to adequately warn about these defects: (1) the lack of a secondary safety; (2) a false-stop on
the rifle’s thumb safety; (3) the ability of the rifle’s bolt handle to snag or snap fire if the rifle’s
nipple is left capped and the bolt is left in the forward position resting against the live primer; and
(4) the ability of the rifle to drop fire under the same conditions. Plaintiff seeks punitive damages,
in addition to compensatory damages.
In Defendants’ motion for summary judgment, Defendants seize on the uncertainties
regarding the causation of the accident and the condition of Kevin’s rifle at the time of the accident
and essentially argue that, because Plaintiff has not been able to factually establish how the accident
occurred, she cannot establish that any alleged defects in Kevin’s rifle proximately caused the
accident or were a substantial factor in bringing about Kevin’s death. In addition, as her experts have
conceded that Kevin’s rifle may have fired with a trigger pull, Defendants argue that Plaintiff cannot
prove that the accident occurred from anything other than the rifle operating as designed and
intended. However, despite the fact that there were no eyewitnesses to the accident, the Court finds
that Plaintiff has presented sufficient evidence that defects of the rifle proximately caused the
accident to withstand summary judgment. Indeed, the evidence of the cause of the accident in this
2
Plaintiff originally filed this products liability action in Lincoln Circuit Court on
November 16, 2009 [DE #1]. Defendants subsequently removed the action to this Court on the
basis of diversity jurisdiction, 28 U.S.C. §§ 1332, 1441, and 1446.
3
case present issues of fact that are more appropriately resolved by a jury, not the Court. Accordingly,
for the reasons explained more fully below, Defendants’ motion for summary judgment is passed
with respect to Plaintiff’s claim for punitive damages and denied in all other respects.
II.
SUMMARY JUDGMENT STANDARD
Rule 56(a) entitles a moving party to summary judgment if that party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Rule 56(c)(1) further instructs that “[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion” by citing to “particular parts of materials in the record” or “showing that
the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” In deciding a motion for summary
judgment, the court must view the evidence and draw all reasonable inferences in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The “moving party bears the burden of showing the absence of any genuine issues of material
fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). The moving party may
meet this burden by demonstrating the absence of evidence concerning an essential element of the
nonmovant’s claim on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has satisfied its burden, the nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co., 475 U.S. at 586, it must produce specific facts showing that a genuine issue remains.
Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). If, after reviewing the record in its
entirety, a rational fact finder could not find for the nonmoving party, summary judgment should be
granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998). Moreover,
4
the trial court is not required to “search the entire record to establish that it is bereft of a genuine
issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989).
Rather, “the nonmoving party has an affirmative duty to direct the court’s attention to those specific
portions of the record upon which it seeks to rely to create a genuine issue of material fact.” In re
Morris, 260 F.3d 654, 665 (6th Cir. 2001).
III.
ANALYSIS
A.
Defective Design
Kentucky has adopted the Restatement (Second) of Torts § 402A, imposing liability upon
manufacturers or sellers of products when the “design itself selected by the manufacturer amounted
to a defective condition which was unreasonably dangerous.’” Morales v. American Honda Motor
Co., 71 F.3d 531, 536 (6th Cir.1995)(citing Nichols v. Union Underwear Co., 602 S.W.2d 429, 433
(Ky.1980)). Thus, under this standard, liability will lie for “persons engaged in the business of
manufacturing or selling products...if the product is in a defective condition unreasonably dangerous
to the user or consumer.” Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780 (Ky.
1984). In applying this standard, “[t]he manufacturer is presumed to know the qualities and
characteristics, and the actual condition of his product at the time he sells it, and the question is
whether the product creates ‘such a risk’ of an accident of the general nature of the one in question
‘that an ordinarily prudent company engaged in the manufacture’ of such a product ‘would not have
put it on the market.’” Id. (quoting Nichols, 602 S.W.2d at 433)(emphasis in original). The
Kentucky Supreme Court has set out a non-exhaustive list of factors to be taken into account in
determining whether a product was manufactured “in a defective condition unreasonably dangerous,”
including: (1) feasibility of making a safer product; (2) patency of the danger; (3) warnings and
5
instructions; (4) subsequent maintenance and repair; (5) misuse; and (6) the product’s inherently
unsafe characteristics. Montgomery Elevator Co., 676 S.W.2d at 780-81.
Once a plaintiff proves the product is a defective design, unreasonably dangerous, the
plaintiff must also establish causation under the substantial factor test. See King v. Ford Motor Co.,
209 F.3d 886, 893 (6th Cir. 2000). Under this test, the plaintiff must prove:
that the defendant’s conduct was a substantial factor in bringing about plaintiff’s
harm. Plaintiff may use circumstantial evidence, and in that situation, the evidence
must be sufficient to tilt the balance from possibility to probability.
Id.(quotations omitted)(internal citations omitted). Thus, under Kentucky law, the burden of proof
is on Plaintiff to show that the circumstances surrounding the accident were such as to justify a
reasonable inference of probability, rather than a mere possibility, that Defendants were responsible
for Kevin’s accident.
In re Beverly Hills Fire Litigation, 695 F.2d 207, 219 (6th Cir. 1982).
However, “[g]enerally, under Kentucky law, proximate cause is a question of fact for a jury.”
Morales, 71 F.3d at 537 (citations omitted).
Here, Defendants’ motion focuses on Plaintiff’s alleged inability to produce evidence of the
cause of the accident. Defendants argue that “because Plaintiff is unable to establish how the
incident factually occurred, including what state the rifle was in, how it was being handled by
[Kevin], and what [Kevin] was doing at the time of incident, she cannot establish that any alleged
defect or failure to warn was a substantial factual or proximate cause of the incident” [DE #51-1 at
16-17]. According to Defendants, Plaintiff does not have evidence that is sufficient to support a
reasonable inference that any alleged defect of the rifle was the “probable” cause of the accident, as
opposed to a “possible” cause among other possibilities. Thus, a jury verdict in Plaintiff’s favor
6
would be based upon speculation or surmise, which is inappropriate under Kentucky law. See
Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745, 747 (Ky. 1973).
Defendants focus on the testimony of Plaintiff’s two firearm design experts, Randy Wakeman
and William Conrad. Wakeman opined that the design of the rifle was defective in that: (1) the
rifle’s two position thumb safety is defective because it contains a false stop in the middle of the
“safe” and “fire” positions, potentially allowing a user to think the safety was engaged when it
actually was not; (2) it lacks a secondary safety feature; and (3) the bolt handle on the rifle could get
snagged on the user’s pants or some other object. Conrad opined that: (1) the rifle is defective
because he was able to get the rifle in question to fire by dropping it on its buttstock with the bolt
forward and by snapping the bolt back about a quarter or half an inch when it was in the forward
position; and (2) the rifle should have a locking bolt safety to prevent the bolt from moving forward
accidentally if it slipped off the sear (which holds the rifle in the cocked position).
However, according to Defendants, Conrad and Wakeman’s testimony should be disregarded,
as they have admitted that they can do nothing more than speculate as to the cause of the incident
and the condition of the rifle at the time of the incident. For example, according to Defendants,
Wakeman rendered his opinions in this case under the assumption that the rifle’s bolt was not fully
cocked at the time of the incident. Wakeman based this assumption on the testimony of some of
Kevin’s family members as to their thoughts regarding the rifle’s condition, but conceded that there
were no eyewitnesses to the incident. Further, Defendants state that Wakeman conceded that his
opinions as to the alleged defect in the rifle’s two position thumb safety is only implicated if the
rifle’s bolt was cocked at the time of the incident, which, according to Defendants, Wakeman did
not believe to be the case.
7
Defendants argue that, since no witnesses have been able to definitively testify as to the
condition of Kevin’s rifle at the time of the incident, including whether the rifle was cocked or
uncocked, Plaintiff’s experts’ theories are based purely on speculation and should be disregarded.
However, although dismissed by Defendants, Plaintiff has offered evidence regarding whether the
rifle was cocked or uncocked at the time of the incident - namely, the testimony regarding Kevin’s
habitual gun-handling practices. Under Rule 406 of the Federal Rules of Evidence, “[e]vidence of
a person’s habit...may be admitted to prove that on a particular occasion the person...acted in
accordance with the habit...The court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.” Thus, Plaintiff’s experts’ theories are not based
on “speculation” that Kevin’s rifle was uncocked, but on the testimony of those who often hunted
with Kevin regarding his habitual gun-handling practices. Although an eyewitness who noted the
condition of Kevin’s rifle immediately prior to the incident would certainly be more helpful, at this
stage, Plaintiff must only present evidence that, if believed, is such that a reasonable jury could
return a verdict in her favor. Morales, 71 F.3d at 536. Here, Plaintiff has presented evidence that
Kevin’s rifle was loaded, primed and uncocked at the time of the incident. Further, Plaintiff has also
presented evidence from her experts that it is possible for a loaded, primed Traditions Tracker 209
muzzleloading rifle to discharge in an uncocked condition, without a trigger pull, whether the rifle
was dropped, snagged or discharged by snap-fire. Importantly, as this is a motion for summary
judgment, the Court must view the evidence and draw all reasonable inferences in Plaintiff’s favor.
In addition, contrary to Defendants’ arguments, Plaintiff has pointed to evidence eliminating
other possible causes of the accident. For example, although Defendants criticize Plaintiff’s failure
to show that the accident did not result from a trigger pull, Plaintiff has cited to evidence from the
8
investigating Kentucky State Trooper, Trooper Eric Taylor, and the Lincoln County Coroner, Bill
Demrow, that suicide was eliminated as a cause of the shooting. Kevin was recently married,
employed, had not exhibited signs of depression, apparently had strong ties to his family and had a
child on the way. Plaintiff has also cited to physical evidence, namely the burn marks on Kevin’s
hand, indicating that his hand was touching the muzzle when the firearm discharged. According to
Plaintiff, this evidence demonstrates that Kevin would have been unable to physically reach the
trigger.
Moreover, the Court is not swayed by Defendants’ characterization of the multiple
“concessions” made by Plaintiff’s forensic firearms expert Conrad and Plaintiff’s muzzleloader
expert Wakeman. Essentially, Defendant urges the Court to disregard the testimony of these experts
because they admitted that the cause of the incident and the condition of the rifle were unknown.
However, despite these concessions, both Conrad and Wakeman’s testimony is based on what is
known about the likely state of the rifle based on the testimony from Kevin’s family members
regarding his habitual gun-hunting practices. It is for the jury to determine how the accident
happened (i.e., whether the rifle was dropped, snagged or snap-fired) and the condition of the rifle
at the time (i.e., whether the rifle was cocked or uncocked). The resolution of any conflicts in the
testimony of Plaintiff’s experts is, likewise, for the jury to consider in making their determination.
Defendant also dismisses Plaintiff’s experts for presenting alternative theories regarding the defects
that may have been a substantial factor in causing the accident. For example, Defendants point out
that one of Wakeman’s defect theories is only implicated if the rifle was cocked at the time of the
accident, while the other two are only implicated if the rifle was uncocked. However, as it will be
9
up to the jury to determine whether the rifle was cocked or uncocked, Plaintiff is permitted to present
alternative theories as to the design defect that was the probable cause of the incident.
Thus, the evidence presented by Plaintiff, though circumstantial, is sufficient to present to
a jury for a determination as to whether the alleged design defects proximately caused Kevin’s death.
As in Morales, “[t]his is a case in which a jury - and not the trial judge - should make the
determination, after hearing all of the evidence,” as to whether the alleged design defects identified
by Plaintiff were a substantial factor in contributing to the cause of Kevin’s accident. Morales, 71
F.3d at 538.
B.
Failure to Warn
Under Kentucky law, in order to survive summary judgment on her failure to warn claim,
Plaintiff must provide evidence that: (1) Defendants had a duty to warn; (2) the warnings Defendants
gave were inadequate; and (3) the inadequate warnings were the proximate cause of the plaintiff’s
injuries. Stewart v. General Motors, 102 Fed.Appx 961, 964 (6th Cir., June 25, 2004)(unpublished).
Under Kentucky law, “a warning must be fair and adequate, to the end that the [product] user, by the
exercise of reasonable care on his own part, shall have a fair and adequate notice of the possible
consequences of use or even misuse.” Post v. American Cleaning Equip. Corp., 437 S.W.2d 516,
520 (Ky. 1968); see also King, 209 F.3d at 895 (6th Cir. 2000). “Kentucky law imposes a general
duty on manufacturers and suppliers to warn of dangers known to them but not known to persons
whose use of the product can reasonably be anticipated.” Watters v. TSR, Inc., 904 F.2d 378, 381
(6th Cir. 1990).
Here, Defendants again focus on Plaintiff’s ability to prove that Defendants’ failure to
provide adequate warnings proximately caused Kevin’s death. Defendants specifically urge the
10
Court to disregard Plaintiff’s experts’ opinions that Defendants failed to provide adequate warnings
that the rifle could fire with the bolt uncocked on a live primer. Defendants argue that, since
Plaintiff cannot factually establish that the rifle was in an uncocked position on a live primer when
the accident occurred, and cannot establish Kevin’s knowledge of the alleged dangers of keeping his
rifle in this position, she cannot establish that Defendants’ failure to warn of the dangers of keeping
a rifle in this position proximately caused Kevin’s death. However, as noted above, Plaintiff has
presented evidence of the condition of Kevin’s rifle at the time of the incident based on his habitual
gun-handling practices. Although perhaps thin, this evidence, if believed, would be sufficient for
a reasonable jury to infer that Kevin’s rifle was uncocked on a live primer at the time of the incident.
Even if Kevin’s storage of his rifle in this manner was a misuse of the rifle, as noted above, “[u]nder
Kentucky law, the duty to warn extends to the dangers likely to result from foreseeable misuse of
a product.” Morales, 71 F.3d at 537 (citing Post, 437 S.W.2d at 521). In addition, Plaintiff has
pointed to testimony of his frequent hunting companions - his father and his brother - about Kevin’s
knowledge of gun safety.
Defendants further argue that, since Kevin apparently stored his rifle without unloading it
and/or removing the primer (ignoring specific instructions in the instruction manual), and otherwise
generally ignored “multiple warnings that would have prevented the incident if followed,”3 it cannot
be shown that Kevin would have adhered to any additional warnings or instructions or acted any
differently in response to them. However, “in the absence of an adequate warning, the defendant
cannot shift to the plaintiff the burden of proving that he would not have misused the product
3
Defendants do not specify other particular warnings or instructions that they contend
would have prevented Kevin’s accident, if followed.
11
regardless.” Id. (quoting Post, 437 S.W.2d at 521)(“[i]t is no answer to say that appellant would
have attached the machine to a 220 DC outlet anyway, since he did so in face of the directions which
were furnished.”). Rather, “the fact that reasonable minds could differ as to the adequacy of the
warnings [makes] the issue of negligence a jury question.” Id. (citing Post, 437 S.W.2d at 521).
Here, Plaintiff points to a study by her retained human factors expert, Dr. Shaun Stafford, indicating
that, after reviewing instruction manuals from the Traditions Tracker 209 and the Traditions Vortek
muzzleloaders,4 individuals with experience in hunting and, more specifically hunting with
muzzleloaders, felt that uncocking the Tracker 209 onto a live primer made it just as safe as similarly
uncocking the Vortek. This evidence, coupled with the testimony from Kevin’s hunting companions
regarding Kevin’s gun-safety knowledge, is sufficient to create a genuine issue of material fact as
to the adequacy of Defendants’ warnings. The jury may permissibly conclude that Kevin was not
aware that his rifle, though loaded with a live primer, could still fire, even if it was uncocked. Thus,
Defendants’ motion for summary judgment on these grounds is denied.
C.
Gross Negligence/Punitive Damages
Defendants also argue that, because Plaintiff cannot establish any factual basis for the
accident, she cannot establish the existence of any “gross negligence” or that any alleged gross
negligence caused the accident. Accordingly, Defendants argue that Plaintiff’s gross negligence and
dependent punitive damages claim should also be dismissed. This portion of Defendants motion is
passed until the Pre-Trial Conference, scheduled for December 15, 2011. Arguments will be heard
from counsel on this issue at that time.
4
According to Plaintiff, unlike the Traditions Tracker 209, the Traditions Vortek has a
secondary safety mechanism and will not fire when the rifle is in an uncocked state.
12
D.
Spoliation
Defendants further argue that they are entitled to summary judgment as a result of alleged
“spoliation” of the incident primer. According to Defendant, the incident primer was in existence
after the incident and was examined by Plaintiff’s expert Conrad. However, at some point after
being examined by Conrad and shipped back to Plaintiff’s counsel, the primer disappeared and/or
was lost or destroyed. Defendants argue that the loss of the incident primer is unduly prejudicial to
Defendants because their experts were unable to examine the primer to possibly determine how the
incident occurred. Defendants point to testimony from their expert, Lucien Haag, that he was able
to decipher between a primer that was fired when the rifle was in the fully cocked position and a
primer that was fired when the rifle was fired by cocking the bolt a quarter of an inch, simulating a
snag or snap fire. However, since the incident primer was missing, Haag was not able to examine
it to determine whether the accident was a result of a trigger pull or another event. Thus, Defendants
argue that the loss of the incident primer deprived them from evidence that could establish the cause
of the incident. Accordingly, Plaintiff’s complaint should be dismissed or Defendants are entitled
to an inference that an examination of the incident primer would have been favorable to their
defense.
Pursuant to a court's “inherent power to control the judicial process,” the Court may impose
sanctions against a party for spoliation of evidence that serve both fairness and punitive functions.
Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009)(citations omitted). “Because failures to produce
relevant evidence fall ‘along a continuum of fault - ranging from innocence through the degrees of
negligence to intentionality,’ the severity of a sanction may, depending on the circumstances of the
case, correspond to the party’s fault.” Id. at 652-653 (quoting Welsh v. United States, 844 F.2d 1239,
13
1246 (6th Cir. 1988)). A district court has broad discretion to determine an appropriate sanction for
spoliation, given the facts and circumstances of a particular case. Id. at 653.
Defendants cite to Beil v. Lakewood Engineering and Mfg. Co., 15 F.3d 546, 553 n.1 (6th Cir.
1994), for the proposition that summary judgment may be granted “if the district court determines
that the defendant is entitled to judgment as a matter of law because the plaintiff is unable, due to
the unavailability of the evidence and the negative inferences, to offer evidence sufficient to support
its case.” However, the Beil case further instructs:
The unavailability of evidence due to the plaintiff’s pre-litigation destruction and the
corresponding negative inferences, however, do not necessarily mandate dismissing
the case or granting summary judgment. Cases are often tried even though a crucial
piece of evidence is unavailable. The plaintiff must then rely on other sources of
proof to establish what might more easily have been proved if the missing evidence
was available. In a product liability case based on a design defect, the plaintiff could
demonstrate through expert testimony, without the availability of the specific
product, that the product’s design was defective; and therefore, each product,
including the unavailable product, was defective.
Id. at 553 (emphasis in original).
In this case, Defendants’ motion for summary judgment does not present sufficient cause to
justify the extreme sanction of summary judgment in their favor as a result of Plaintiff’s alleged
spoliation of evidence. Defendants put forth no evidence that Plaintiff’s counsel or Plaintiff’s expert
Conrad intentionally destroyed or concealed the incident primer. In fact, Plaintiff’s response
suggests that it is possible that the primer examined by Conrad was not the incident primer and that,
instead, the incident primer was possibly discarded by the police investigating the accident.5
5
Defendants’ Reply argues that, in his deposition, Conrad admitted to receiving the
incident primer when he received the rifle. However, a review of Conrad’s deposition shows that
he stated that a primer was in the rifle when he received it in September 2009. He never
definitively identifies the primer he received as the incident primer.
14
Regardless, there does not appear to be any intentional, bad faith conduct that would justify the
extreme sanction of dismissal. Although any alleged “spoliation” may be the basis for an adverse
inference instruction, this issue is more appropriately considered by the Court on Defendants’
separate motion for such an instruction [DE #69]. Accordingly, this issue will be taken up by the
Court at that time.
IV.
CONCLUSION
For the reasons set forth below, the Court, being fully and sufficiently advised, hereby
ORDERS as follows:
(1)
Defendants’ motion for summary judgment [DE #51] is passed with respect to
Plaintiff’s claim for punitive damages, but is DENIED in all other respects; and
(2)
this matter REMAINS PENDING.
This December 7, 2011.
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