Seguin et al v. Remington Arms Company, LLC et al
Filing
139
ORDER AND REASONS denying 53 Motion to Exclude and Incorporated 53 Motion for Summary Judgment; denying 61 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PRECIOUS SEGUIN, ET AL.
CIVIL ACTION
VERSUS
NO. 14-2442
REMINGTON ARMS COMPANY, LLC, ET AL.
SECTION "B"(2)
ORDER AND REASONS
Before the Court are two motions. The first is Precious
Seguin’s (“Plaintiff” or “Precious”) “Motion for Partial Summary
Judgment”
(Rec.
Doc.
61)
claiming
that
offensive
collateral
estoppel should preclude Remington Arms Company, LLC (“Remington”
or “Defendant”) from re-litigating the issue of the existence of
a product defect. Remington timely filed an opposition memorandum
(Rec. Doc. 87), and the Court granted leave for Plaintiff to file
a reply memorandum. Rec. Doc. 119. The second is “Remington’s
Motion
to
Exclude
the
Testimony
and
Causation
Opinion
of
Plaintiff’s Liability Expert and Incorporated Motion for Summary
Judgment.” Rec. Doc. 53. Plaintiff timely filed an opposition
memorandum thereto (Rec. Doc. 77), and the Court granted Defendant
leave to file a reply. Rec. Doc. 116. For the reasons enumerated
below,
IT IS ORDERED that both motions are DENIED.
1
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a tragic hunting accident in which
Precious Seguin suffered significant injuries. On October 28,
2013, Precious went with her family to their hunting lease in
Loranger, Louisiana. Rec. Docs. 61-3 at 1; 87-1 at 1. That evening,
Precious went out into the woods with her father, James Seguin,
Jr. (“J.R.”), her brother, James Seguin, III (“Bubba”), and a
family friend, Matthew Perilloux, to hunt for a deer that had
allegedly been injured earlier in the day by another relative.
Rec. Docs. 53-3 at 2; 61-3 at 1-2. Precious’s mother, Joy Seguin,
remained in their vehicle. Rec. Doc. 61-3 at 2. According to both
J.R. and Bubba, when they arrived at the hunting site and got out
of the vehicle, Bubba handed his father a Remington Model 710 boltaction
rifle
(“M710”)
with
the
manual
safety
in
the
“SAFE”
position. Rec. Docs. 53-3 at 2; 61-3 at 2.
The group proceeded to search for signs of the injured deer
in an area thick with trees and brush. Rec. Docs. 53-3 at 2; 61-3
at 2.
As the party traveled, they moved single file in the
following order from first to last: Perilloux, J.R., Precious, and
then Bubba. Rec. Docs. 53-3 at 3; 61-3 at 2. It is at this point
that the facts become less clear. Plaintiff maintains that, at one
point, she bent over, facing the opposite direction of the group,
to look for a blood trail.
Rec. Doc. 61-3 at 2. She claims that,
as she bent over, J.R. held the strap of the rifle with his right
2
hand and his flashlight in his left. Id. at 3. As he moved forward,
the rifle allegedly got tangled in the brush. Id. at 2. When a
branch struck the rifle it purportedly swung backwards with the
barrel pointing toward Precious who was still bent over with her
back to her father. Id. at 2-3.
The rifle fired and a bullet
struck Precious in her right buttocks, traveling through her hip
and exiting through her right elbow. Id. at 3. She was flown to
the nearest trauma center in Baton Rouge. Id. Precious has since
incurred multiple surgeries and may require additional surgeries
in the future. Id. See also Rec. Doc. 87-1 at 4.
While Defendant acknowledges J.R.’s deposition testimony in
which he states that the rifle was slung over his right shoulder
with the barrel pointing in the air, Defendant also points to
statements allegedly made by J.R. to a sheriff’s deputy in the
aftermath of the accident where J.R claims to have had the barrel
facing the ground. Rec. Doc. 53-3 at 2-3. According to that same
report, the thick brush forced Precious to crawl ahead of the
group. Id. at 3. It was then that a branch supposedly hit the
muzzle of the gun, lifted it upwards towards Precious, and caused
it to discharge. Id. at 3. Defendant admits that the bullet struck
Precious causing significant injuries and forcing her to undergo
multiple
surgeries.
Rec.
Doc.
87-1
at
4.
However,
Defendant
contests whether additional surgeries will be required. Id.
3
On October 24, 2014, Precious, J.R., Joy, and Bubba filed
suit against Remington, Sporting Goods Properties, Inc. (“SPS”),
and E.I. du Pont de Nemours and Company (“E.I”) seeking damages on
several
grounds.
Rec.
Doc.
1.
Plaintiffs
then
amended
their
complaint, naming Remington as the lone defendant. Rec. Doc. 8.
They then voluntarily dismissed SPS and E.I. Rec. Doc. 13. On July
5, 2016, this Court granted Plaintiffs’ unopposed motion to dismiss
with prejudice all claims brought by Joy, J.R., and Bubba. Rec.
Doc. 125. Accordingly, the only remaining claims are Precious’s
products liability claims against Remington.
II.
LAW AND ANALYSIS
a. Legal Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
only
interrogatories,
if
and
“the
pleadings,
admissions
on
depositions,
file,
answers
together
to
with
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).
A genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v.
The movant must
point to “portions of ‘the pleadings, depositions, answers to
4
interrogatories,
and
admissions
on
file,
together
with
the
affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue.
Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993). Both
parties seek summary judgment on different elements of Plaintiff’s
products liability claim.
In Louisiana, the Louisiana Products Liability Act (“LPLA”)
provides the exclusive remedy for plaintiffs seeking to recover
from manufacturers for damage caused by their products.1 LA. STAT.
ANN. § 9:2800.52. See also Grenier v. Med. Eng’g Corp., 243 F.3d
1
The parties do not contest the applicability of the LPLA in this matter.
5
200, 203 (5th Cir. 2001). A plaintiff must establish four elements
to succeed on an LPLA claim:
(1) that the defendant is a manufacturer of
the product; (2) that the claimant’s damage
was proximately caused by a characteristic of
the product; (3) that this characteristic made
the product ‘unreasonably dangerous’; and (4)
that the claimant’s damage arose from a
reasonably anticipated use of the product by
the claimant or someone else.
Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 260-61 (5th Cir.
2002) (citing LA. STAT. ANN. § 9:2800.54(A)). Under the LPLA, a
product is unreasonably dangerous if it meets one of the following
criteria:
(1) The product is unreasonably dangerous in
construction or composition as provided in
R.S. 9.2800.55;
(2) The product is unreasonably dangerous in
design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous
because an adequate warning about the
product has not been provided as provided
in R.S. 9:28000.58; or
(4) The product is unreasonably dangerous
because it does not conform to an express
warranty of the manufacturer about the
product as provided in R.S. 9:2800.58.
Id. (citing La. Stat. Ann. § 9:2800.54(B)). The burden of proof as
to each element rests with the claimant. LA. STAT. ANN. § 2800.54(D).
Plaintiff’s Amended Complaint invokes criteria one through three
as bases for the rifle being unreasonably dangerous—the presence
of a manufacturing defect, the presence of a design defect, and a
6
lack
of
adequate
warnings.
Rec.
Doc.
8
at
7-11.
However,
Plaintiff’s motion only seeks summary judgment on the issue of the
alleged design defect.2
b. Plaintiff’s Motion for Partial Summary Judgment
1. The parties’ contentions
Plaintiff argues that offensive collateral estoppel should
preclude Remington from relitigating the design defect at issue
here. Rec. Doc. 61-2 at 14. Plaintiff argues that offensive
collateral estoppel should apply because three cases have already
reached a judgment on the merits concerning a design defect in the
Remington M700 rifle. Id. (citing Lewy v. Remington Arms Co., Inc.,
836 F.2d 1104 (8th Cir. 1988); Campbell v. Remington Arms Co., 958
F.2d 376 (9th Cir. 1992); Collins v. Remington Arms Co., Inc.,
1994 WL 866816 (Tex. Dist. May 1, 1994)). Seguin maintains that
all elements of collateral estoppel are met because: (1) Remington
was an original party to all three of those suits; (2) the Model
700 (“M700”) product defect was litigated and tried in each case;
(3) Remington had a fair opportunity to litigate the issue; and
(4) there was a valid and final judgment in each case establishing
that the M700 is defective and unreasonably dangerous. Id. at 1418.
Plaintiff’s motion repeatedly references the issue of a “product defect” in a
general sense, which could refer to either a design defect or a manufacturing
defect. However, because Plaintiff’s motion claims that the cases it relies
upon found a “design defect” (Rec. Doc. 61 at 1), the Court reads Plaintiff’s
motion as only seeking summary judgment on the issue of a design defect.
2
7
Defendant’s memorandum in opposition first points out that
Plaintiff’s motion conveniently misstates that the rifle at issue
here is a Model 700 when, in fact, the Seguins’ rifle was a Model
710. Rec. Doc. 87 at 1. Remington argues that, because the rifle
here is an M710 and the rifle at issue in the cases cited by
Plaintiff is an M700, an identical issue was not litigated in those
cases, meaning collateral estoppel is inapplicable. Id. at 2.
Remington also claims that Plaintiff misstates the background and
legal holdings of the cases upon which it relies. Id. Finally,
Defendant avers that offensive collateral estoppel is inapplicable
where there are inconsistent judgments on the issue. Id. at 3
(claiming that Plaintiff failed to identify other relevant cases
that reach an opposite conclusion).
In reply, Plaintiff contends that she mistakenly referred to
the subject rifle as an M700 throughout her motion and supporting
memorandum. Rec. Doc. 119 at 2. Nevertheless, for the first time,
Plaintiff addresses the differences between the M700 and M710 in
her reply memorandum, claiming that fire control system in the
M710 is the “functional equivalent” of the M700. Id.
Accordingly,
Plaintiff argues that they have the same design defect and that
collateral estoppel should still apply. Furthermore, Seguin argues
that the cases upon which Remington relies do not preclude the
application
of
offensive
collateral
estoppel
because
those
decisions rest on the issue of causation rather than design defect.
8
Id. at 4-7. Plaintiff thus maintains that the Court should apply
offensive collateral estoppel to preclude relitigation of the
issue of a design defect.
2. Discussion
Courts must address the same four elements for both offensive
and defensive collateral estoppel. Landry v. G.C. Constructors,
802 F. Supp. 2d 827, 831 (S.D. Miss. 2011) (citing Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998)).
The four necessary conditions for the application of collateral
estoppel, or issue preclusion, are:
(1) the issue under consideration is identical
to that litigated in the prior action; (2) the
issue was fully and vigorously litigated in
the prior action; (3) the issue was necessary
to support the judgment in the prior case; and
(4) there is no special circumstance that
would make it unfair to apply the doctrine.
Winters, 149 F.3d at 391 (quoting Copeland v. Merrill Lynch & Co.,
47 F.3d 1415, 1422 (5th Cir. 1995)). Importantly, district courts
have “broad discretion to determine whether collateral estoppel is
appropriately
employed
offensively
to
preclude
issue
relitigation.” Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S.
322, 331 (1979)) (emphasis in original). Additionally, where the
application of offensive collateral estoppel would be unfair to a
defendant, a trial judge should not allow its use. Parklane, 439
U.S. at 331. The primary issue here is the first element—whether
9
the issues decided in the cases cited by Plaintiff are identical
to the issue in this case.
After ignoring the issue in her initial motion and supporting
memorandum, Plaintiff argues in her reply brief that the alleged
defect at issue here is identical to that in Lewy, Campbell, and
Collins because the M710 rifle has a “Walker” fire control system
that is functionally equivalent to the Walker fire control system
in the M700. Rec. Doc. 108-2 at 2. To support this claim, Plaintiff
points to the report of her expert, Charles Powell. Id. In his
report, Powell does in fact assert that the Walker design in the
M710 is functionally equivalent to that of the M700. Rec. Doc. 534 at 4. However, he also acknowledges that the M710 version of the
Walker design is “slightly different from the Model 700 in its
dimensions and use of a polymer side plate.” Id. The fact that the
design is slightly different, even if functionally equivalent,
necessarily means that it is not identical.
Moreover,
the
fact
that
Plaintiff’s
expert
deems
it
functionally equivalent does not in fact render it so. It is at
least conceivable that the alterations to the M710 firing system
could have corrected the defect found in earlier M700 cases.
Plaintiff
also
does
not
claim
that
Remington
has
had
the
opportunity to litigate the differences and similarities between
the M700 and the M710. Thus, to adopt Plaintiff’s expert’s opinion
as fact and deem the issues identical would not only be outside
10
the scope of this Court’s responsibility at the summary judgment
stage, but it would prove unfair to Defendant because this exact
issue has not yet been litigated. It would therefore be unfair to
Defendant and an abuse of discretion to apply offensive collateral
estoppel in this case.
Furthermore, the Court stresses that Plaintiff’s repeated
misstatements of fact regarding the rifle model at issue in this
case, as well as Plaintiff’s argument that the issues are identical
despite
the
different
models
of
rifle,
appear
to
constitute
violations of Rule 11(b). FED. R. CIV. P. 11(b). In some cases, the
exact model of weapon may prove immaterial. However, in this
instance, where Plaintiff presents the Court with the claim that
identical issues exist in this case and those cited, the exact
model
of
weapon
is
undoubtedly
material.
It
is
absolutely
implausible that Plaintiff could misidentify the rifle model in
every instance in her initial motion,3 only to realize her mistake
once Defendant raised the issue in its opposition. The claimed
inadvertence is also belied by certain statements included within
the motion. See, e.g., Rec. Doc. 61-2 at 15 (“[t]hese are the same
rifles which include the one at issue herein”) (emphasis added).
Finally, it is not as if Plaintiff or her counsel were previously
unaware of the actual rifle model as they properly identified it
3 See Rec. Doc. 61-2 at 4, 5, 6, 8, 14, 15, 16, 17, 19. In fact, Plaintiff’s
motion and memorandum in support do not include a single reference to the
Model 710 rifle. See Rec. Docs. 61, 61-2.
11
in their Amended Complaint and other filings. See, e.g., Rec. Doc.
8. Plaintiff and Plaintiff’s counsel are warned that any further
conduct along these lines may result in sanctions.
c. Defendant’s Motion to Exclude Testimony and for Summary
Judgment
1. The parties’ contentions
Remington first urges this Court to exclude the causation
opinion of Plaintiff’s expert, Charles Powell, as unreliable under
Daubert. Rec. Doc. 53-3 at 14-17.
Remington argues that his
causation opinion is unreliable because: (1) his opinion regarding
a design defect causing Plaintiff’s injuries does not fit the facts
of this case, and (2) he cannot exclude other possible explanations
for the shooting. Id. at 14. Defendant further claims that, because
Powell’s causation opinion is inadmissible speculation, Plaintiff
cannot establish the indispensable causation element. Id. at 18.
Accordingly, Remington asks the Court to grant summary judgment in
its favor.
In
opposition,
Plaintiff
argues
that
Powell’s
causation
opposition is adequately supported by the evidence. Rec. Doc. 771 at 6. She further contends that Remington’s arguments have been
rejected in other similar cases. Id. at 10-11. Because Defendant’s
summary judgment motion relies solely on the success of the Daubert
challenge, Plaintiff avers that the motion must be denied.
12
In its reply memorandum, Remington claims that Plaintiff’s
failure to contest certain facts and propositions demonstrates the
deficiency of her argument. Rec. Doc. 105-2 at 1. Defendant then
reurges to the Court that Powell’s expert opinion is based on
insufficient facts. Id.
2. Discussion
One of the four elements required to establish a violation of
the LPLA is that a characteristic of the product proximately caused
the claimant’s damages. Stahl, 283 F.3d at 260-61 (citing LA. STAT.
ANN. § 9:2800.54(A)). Here, Defendant challenges the testimony of
Plaintiff’s expert as to causation. In his expert report, Powell
concludes that:
In the subject Model 710 rifle, interferences
with the fire control components produced
inadequate
sear-connector
engagement
and
allowed the impact contact [sic] of its muzzle
with a tree branch to jar the rifle and release
the firing pin and fire the subject rifle
without any interaction with the trigger.
Debris and old lubricant were observed and
photographed in the subject rifle’s fire
control that cause connector interferences and
defective engagement with the sear. . . . Mr.
Seguin’s hand was well away from the rifle
trigger at the time of discharge and the
trigger was protected by the Model 710 polymer
trigger guard from contact with clothing and
tree limbs in its rotational plane.
Rec. Doc. 53-4 at 7. Based on these issues, Powell maintains that
the rifle either discharged from contact to the barrel while the
safety was in the “FIRE” position (a “jar-off”) or from contact to
13
the safety, which caused the safety to move from “SAFE” to “FIRE”
and then caused the rifle to discharge (a fire on safety release
or
“FSR”).
See
Rec.
Doc.
53-5
at
14.
Remington
claims
this
causation opinion is unreliable and thus inadmissible.
“The Supreme Court’s landmark case of Daubert v. Merrel Dow
Pharmaceuticals,
Inc.,
provides
the
analytical
framework
for
determining whether expert testimony is admissible under Rule 702
of the Federal Rules of Evidence.” Pipitone v. Biomatrix, Inc.,
288 F.3d 239, 243 (5th Cir. 2002) (citing Daubert, 509 U.S. 579
(1993)). Expert testimony must be both relevant and reliable to be
admissible. Id. at 244. In Daubert, the Supreme Court provided an
illustrative list of factors to use in evaluating the reliability
of such testimony: (1) whether the theory can be or has been
tested; (2) whether it has been subjected to peer review and
publication; (3) whether it has a known or potential rate of error;
and (4) whether it is generally accepted in the relevant scientific
community. Id. (citing Daubert, 509 U.S. at 593-94). However, the
Daubert analysis is a flexible one. Id. (citing Kumho Tire Co v.
Carmichael, 526 U.S. 137 (1999)).
Remington’s first argument is that Powell’s expert opinion is
inadmissible because it is not supported by the facts. Remington
aims to support this argument by claiming that during all of the
testing
conducted
by
Powell,
Defendant’s
experts,
and
the
Louisiana State Police, the gun never fired without a trigger pull.
14
Rec. Doc. 53-3 at 14-15. Further, Remington refers to Powell’s
concession that no debris was ever found to be displacing the
connector away from the trigger to create a dangerously-low sear
engagement. Id. at 15. Defendant also directs the Court’s attention
to the fact that all of the experts’ measurements of the sear
engagement found it to be within a range deemed safe by Powell.
Id.
Therefore,
Remington
argues
that
Powell’s
conclusion
is
unsupported by the facts.
Defendant’s arguments are flawed in many respects. First,
Defendant’s claim that the gun never fired without a trigger pull
is not totally accurate. In his deposition, Powell testified that
when a very small force or pressure was placed on the trigger, the
subject rifle would fire if he just tapped it on the examining
table. Rec. Doc. 53-5 at 30. Remington also ignores Powell’s
finding that the type of debris that can displace the connector
was found in the fire control. The fact that it was not displacing
the connector at the time of inspection does not mean it was not
displacing the connector at the time of the incident.
In fact,
Powell’s report claims that particles will redistribute after each
fire, meaning that, in his expert opinion, it is unlikely that the
particles would have the same placement during examination as they
would have immediately prior to the accident. See Rec. Doc. 53-4
at 7. Remington’s argument regarding the sear engagement during
testing suffers from the same logical deficiency. Just because the
15
sear engagement was measured to be sufficiently safe during testing
does not eliminate the possibility that it was unsafe prior to the
accident. See Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 990
(11th Cir. 2016).
Remington also claims that Powell must be able to rule out
all other possible explanations for his opinion to be reliable.
This
is
simply
plaintiff’s
a
burden
distorted
at
trial
interpretation
is
to
prove
of
the
law.
causation
by
The
a
preponderance of the evidence, but that is not the standard for
admissibility of an expert opinion on the issue of causation. See
Llewellyn v. Lookout Saddle Co., 315 So. 2d 69, 71 (La. App. 2
Cir. 1975). The issues here are (1) whether Powell’s expert opinion
is reliable under Daubert, and (2) whether it raises a genuine
issue of fact as to causation.
This Court finds that Powell’s expert opinion as to causation
has sufficient factual support to be considered reliable. Powell
claims that the Walker fire control system is a design defect
because debris can get caught between the connector and the
trigger,
causing low sear engagement such that the rifle is
vulnerable to inadvertent discharge without a trigger pull. He
claims to have found the type of debris that can cause low sear
engagement in the fire control system of the subject rifle. He
also asserts that, based on the facts before him, the trigger guard
should have protected the trigger from clothing and brush in its
16
rotational plane (assuming the rifle was moving backwards), making
an inadvertent trigger pull less likely. Even if the trigger guard
failed to protect the trigger, his deposition testimony contends
that minimal pressure on the trigger could have led to a discharge
with a simple tap to the barrel. See Rec. Doc. 53-5 at 30. These
facts are enough to support his theory of the events.
While Remington argues that J.R.’s original account of the
facts
leading
up
to
the
incident
do
not
mesh
with
Powell’s
causation opinion (because in that account the rifle was supposedly
swinging forward), that does not render his opinion inadmissible.
Powell stated that, based on all of the evidence before him, he
believed it was more likely than not that the events occurred as
J.R. described them in his deposition testimony, which led him to
his ultimate conclusion. Rec. Doc. 53-5 at 12. If the jury finds
that the events occurred as J.R. outlined in his deposition, then
Powell’s opinion, if taken as true, rules out the possibility of
an inadvertent trigger pull. If, on the other hand, the jury finds
J.R.’s original statement to the deputy more reliable, Powell’s
opinion is still relevant though it arguably does not rule out all
other potential causes. The Court is satisfied that Powell’s
opinion has sufficient factual support to survive the present
Daubert
challenge.
His
opinion
testimony
as
to
causation
is
therefore admissible. Moreover, it raises a genuine issue of fact
17
as to the proximate cause of Plaintiff’s injuries, meaning summary
judgment on the causation element is also inappropriate.
III. CONCLUSION
For the reasons outlined above,
IT IS ORDERED that both motions are DENIED.4
New Orleans, Louisiana, this 18th day of July, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
The Court also expresses its disappointment at the parties’ filing of
summary judgment motions on issues that they should have realized
clearly involve disputed issues of material facts. Counsel's time and
clients' money should have been spent more carefully and prudently.
4
18
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