SAMPSON et al v. GLOCK GES. M.B.H. et al
Filing
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OPINION. Signed by Judge Esther Salas on 3/24/14. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
BRIAN SAMPSON and MARIA
:
SAMPSON, his wife,
:
:
:
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Plaintiffs,
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Civil Action No. 11-1701 (ES)
v.
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OPINION
GLOCK, INC., et al.,
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:
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Defendants.
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___________________________________ :
SALAS, DISTRICT JUDGE
Pending before this Court is a product liability action brought by Plaintiff, a police officer
of the Florham Park Police Department (“FPPD”), who was injured by a pistol designed and
manufactured by Defendant Glock, Inc. (“Glock” or “Defendant”). Defendant now moves for
summary judgment. (D.E. No. 60, Def. Glock, Inc.’s Mem. of Law in Supp. of its Mot. for Summ.
Judgment. (“Def. Br.”)). Defendant contends that because Plaintiff cannot identify any design
defects or manufacturing defects which could cause the subject pistol to discharge absent a trigger
pull, Plaintiff cannot sustain such an action as a matter of law. (Id. at 13). The instant motion is
unopposed. The Court has considered the parties’ submissions and decides the motion without
oral argument pursuant to Fed. R. Civ. P. 78(b). Based on the reasons that follow, Defendant’s
motion for summary judgment is GRANTED.
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I.
PROCEDURAL HISTORY
On February 10, 2011, Plaintiff commenced this action in the Superior Court of New
Jersey, Morris County. (D.E. No. 1, Def. Notice of Removal ¶ 1). On March 24, 2011, Defendant
filed a Notice of Removal to this District. (Id. ¶ 7). Originally, Safariland, LLC and Streamlight,
Inc. were also named as defendants, but Plaintiff’s claims against Safariland, LLC and Streamlight,
Inc. were dismissed with prejudice.1 (D.E. No. 41, Stipulation of Dismissal With Prejudice as to
Defs. Safariland, LLC and Streamlight, LLC ¶ 1). Subsequently, Glock moved to preclude the
testimony of Plaintiff’s Proposed Expert, and also moved for summary judgment on August 14,
2013. (D.E. Nos. 59, 60).2 On August 19, 2013, Plaintiff requested an extension to file opposition
to summary judgment motions. (D.E. No. 61). The Court granted Plaintiff’s request on August
21, 2013. (D.E. No. 63). Despite receiving an extension, Plaintiff never filed an opposition to
Defendant’s instant motion. Subsequently, on January 9, 2014, the Court conducted a telephone
conference to inquire as to the status of Plaintiff’s summary judgment opposition. (D.E. No. 66).
During that conference, Plaintiff’s Counsel, Mr. Kobin, represented to the Court that he would
submit an opposition. However, to date, Plaintiff has filed no opposition.
II. FACTUAL BACKGROUND
Plaintiff alleges that while at the FPPD headquarters on February 13, 2009, he placed the
subject pistol, with a tactical light attached to its barrel, into a holster on his right thigh. (Def. 56.1
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Safariland, LLC and Streamlight, Inc. signed a stipulation of dismissal on January 28, 2013. (D.E. No. 41). As
background, prior to the date of Plaintiff’s injury, Safariland had issued a warning pertaining to its holster regarding
the fact that “when a pistol is holstered with a tactical light attached, a large opening is created at the top of the
holster which could allow access to the trigger of the pistol.” (D.E. No. 60-2, Def. Glock, Inc.’s Separate Statement
of Undisputed Material Facts in Supp. of its Motion for Summary Judgment (“Def. 56.1 Statement”) ¶ 16).
Following Plaintiff’s injury, the Florham Park Police Department stopped using these holsters “because of concerns
that a gap created between the holster and the pistol was large enough to allow a finger or a foreign object to enter
the holster and pull the trigger.” (Id. ¶ 33).
The Court will not address Defendant’s motion to preclude the expert testimony of Robert Hooker because it
grants Defendant’s motion for summary judgment notwithstanding any alleged insufficiency of Mr. Hooker’s report.
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Statement ¶ 19). While Plaintiff was walking down a hallway of FPPD headquarters with the
holstered pistol attached to his right thigh, “a round of ammunition discharged from the subject
pistol into [Plaintiff’s] leg.” (Id. ¶ 21). Following the incident, the pistol was inspected by the
Morris County Sheriff’s Office’s Criminal Investigative Unit under the direction of Officer
William Stitt, a Glock armorer. (Id. ¶ 22). Officer Stitt concluded that the pistol passed inspection.
(Id. ¶ 24).
III. DISCUSSION
A. Legal Standard
A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil
Procedure “if the pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). On a summary judgment motion, the moving party must
show, first, that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the non-moving party to present evidence that a genuine
issue of material fact compels a trial. Id. at 324. In so presenting, the non-moving party must offer
specific facts that establish a genuine issue of material fact, not just “some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–
87 (1986). Thus, the non-moving party may not rest upon the mere allegations or denials in its
pleadings.
See Celotex, 477 U.S. at 324.
Further, the non-moving party cannot rely on
unsupported assertions, bare allegations, or speculation to defeat summary judgment. See
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999). The Court must,
however, consider all facts and their reasonable inferences in the light most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995).
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B. Analysis
Plaintiff alleges that Glock negligently designed the pistol at issue. (D.E. No. 1-1,
Complaint (“Compl.”) ¶ 2). Such design defect allegations are governed by the New Jersey
Product Liability Act. The Act states:
A manufacturer or seller of a product shall be liable in a product
liability action only if the claimant proves by a preponderance of the
evidence that the product causing the harm was not reasonably fit,
suitable or safe for its intended purpose because it: [a] deviated from
the design specifications, formulae, or performance standards of the
manufacturer or from otherwise identical units manufactured to the
same manufacturing specifications or formulae, or [b] failed to
contain adequate warnings or instructions, or [c] was designed in a
defective manner.
N.J.S.A. § 2A:58C-2.
Thus, in order to succeed under this theory, Plaintiff must prove that the pistol “was not
reasonably fit, suitable or safe for its intended purpose.” Id. In order to determine whether the
design was defective and not reasonably fit, New Jersey courts apply a risk-utility analysis that
considers seven factors:
1. The usefulness and desirability of the product-its utility to the user
and to the public as a whole.
2. The safety aspects of the product-the likelihood that it will cause
injury, and the probable seriousness of the injury.
3. The availability of a substitute product [that] would meet the need
and not be as unsafe.
4. The manufacturer's ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive
to maintain its utility.
5. The user's ability to avoid danger by the exercise of care in the
use of the product.
6. The user's anticipated awareness of the dangers inherent in the
product and their avoidability, because of general public knowledge
of the obvious condition of the product or of the existence of suitable
warnings or instructions.
7. The feasibility, on the part of the manufacturer, of spreading the
loss by setting the price of the product or carrying liability insurance.
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Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 96 (1992).
To weigh the above factors and ultimately prove the existence of a defect, a plaintiff may
rely on the testimony of an expert who has examined the product or offers an opinion on the
product's design. Scanlon v. General Motors Corp., 65 N.J. 582, 591 (1974). Plaintiff may also
produce circumstantial evidence of a defect “such as proof of proper use, handling or operation of
the product and the nature of the malfunction, [which] may be enough to satisfy the requirement
that something is wrong with [the product].” Lauder v. Teaneck Volunteer Ambulance Corps, 368
N.J. Super. 320, 331 (App. Div. 2004). However, “where the issue concerns a product's design . .
. expert opinion is the only available method to establish defectiveness, at least where the design
is not patently defective.” Huddell v. Levin, 537 F.2d 726, 736 (3d Cir. 1976). New Jersey state
courts require expert testimony when the alleged defect involves a complex instrumentality. Id.
(citing Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 341 (App. Div. 2000)).
Here, given the complex nature of the pistol, Plaintiff must rely on the testimony of an
expert who has examined the subject pistol. Further, Plaintiff must show that the alleged defect
caused the pistol to discharge without a trigger pull. See Lewis v. American Cyanamid Co., 715
A.2d 967, 976 (N.J. 1998) (holding that causation is an element of a design defect claim); Coffman
v. Keene Corp., 628 A.2d 710, 716 (N.J. 1993) (holding that proximate cause must be shown in
order to establish strict liability).
Accordingly, Plaintiff relies on the opinion of its proposed expert, Robert Hooker, in order
to attempt to show that the pistol discharged without a trigger pull. At his deposition, Hooker
stated that two separate safety mechanisms within the gun would have to fail simultaneously in
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order for this to happen: the engagement3 and the firing pin safety. (Def. Br. at 14 (citing Hooker
Dep. at 188:15-24)). Hooker stated that the engagement was at 50%, rather than the 66% suggested
by Glock in its Armorer’s Manual.4 (Id. at 25 (citing Hooker Dep. at 118:14-18)). However,
Hooker “could not state to a reasonable degree of certainty why the engagement failed or what
effect the alleged 50% engagement would have had with regard to a pistol discharging without a
trigger pull.” (Id. at 15).
Indeed, Hooker “admitted that he did not know why the engagement or firing pin safety
allegedly failed . . . and could not state to a reasonable degree of certainty (1) that the firing pin
safety failed or (2) whether the allegedly reduced engagement could have caused a discharge
without a trigger pull.” (Id. at 21 (citing Hooker Dep. at 198:17-200:8)). Further, Hooker
“admitted that he is not a design expert and has no experience analyzing or drafting design
drawings for firearms.” (Id. (citing Hooker Dep. at 44:6-12, 103:5-11, 246:20-22)). Despite not
knowing what could have conceivably caused the firing pin safety to allegedly fail, Hooker merely
concludes that the fact that the pistol discharged is itself sufficient evidence that the firing pin
safety failed. (Id. at 14 (citing Hooker Dep. at 199:1-25)).
Thus, Defendant argues that summary judgment is appropriate because “plaintiffs’ own
expert cannot identify the cause of the alleged spontaneous discharge.” (Id. at 15). Defendant also
notes that Plaintiff neither issued any discovery requests during fact discovery, nor conducted any
depositions of party witnesses to substantiate any of its allegations that the pistol was defective.
(Id. at 11). Defendant further highlights that “every person, with the exception of Hooker who
“The term ‘engagement’ refers to the degree of surface contact between the raised back portion of the trigger bar
and the firing pin lug.” (Def. 56.1 Statement ¶ 25). Glock’s recommendation of an engagement of 66% is a
“flexible standard.” (Id. ¶ 26).
3
The Glock Armorer’s Manual provides basic service and information for Certified Glock Armorers; those who are
specially trained and certified to service Glock firearms. (Def. 56.1 Statement, Ex. E).
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was present for the inspection of the subject pistol . . . concluded that the pistol was working
properly and discharged because the trigger was pulled.” (Id. at 16). Following the incident, the
pistol was inspected by Officer William Stitt, a Glock armorer who regularly inspects Glock
pistols, who concluded that the pistol was functioning properly and could not discharge without a
trigger pull. (Id. at 7 (citing Stitt Dep. at 82:18-23, 87:2-89:18, 98:25-99:9)). Officer Stitt’s
inspection was observed by Lieutenant Matthew Gatzke, also a Glock armorer, who corroborated
Stitt’s conclusion. (Id. at 9 (citing Gatzke Dep. at 17:3-11, 52:6-19)). The pistol was inspected
again in April 2012 by Emanuel Kapelsohn and Seth Bredbury, expert witnesses retained by
Defendant, who concluded that the pistol’s engagement surpassed the 66% recommendation. (Id.
(citing Bredbury Dep. at 91:4-25; Kapelsohn Dep. at 249:9-250:1)).5
The Court agrees with Defendant. Plaintiff has presented no evidence that the discharge
could have been caused by anything other than a trigger pull. A design defect claim is insufficient
when the incident giving rise to the injury could have been caused for reasons unrelated to a design
defect. See Lauder v. Teaneck Volunteer Ambulance Corps., 845 A.2d 1271, 1277-78 (N.J. Super.
Ct. App. Div. 2004) (explaining that the plaintiff, who was injured when a gurney collapsed, failed
to exclude possible causes of the accident unrelated to design or manufacturing defect). Similarly,
Plaintiff has not excluded the possibility that the pistol could have discharged for reasons unrelated
to any defects. In fact, every pistol inspection except for Hooker’s, led to the same conclusion:
that the pistol would discharge only as a result of a trigger pull.
Moreover, summary judgment must be granted in favor of Defendant because Plaintiff has
not identified an alternative design for the pistol which, if used, would have prevented injury. See
These facts are also alleged in the Defendant’s 56.1 Statement. Plaintiff failed to submit a responsive statement of
facts, in clear violation of Rule 56.1. As such, the Court accepts Defendant’s factual statements as uncontested, and
accordingly admitted by Plaintiff, for purposes of this motion. See Friedman v. Bank of Am., N.A., No. 09-2214,
2012 WL 1019220, at *6 n.2 (D.N.J. Mar. 26, 2012).
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Quincy Mut. Fire Ins. Co. v. Scripto USA, 573 F. Supp. 2d 875, 879 (D.N.J. 2008) (holding that a
Court cannot send a design defect case to a jury absent evidence that a feasible alternative design
exists); see also Diaz v. Glock, Inc., No. 08-5670 (D.N.J. May 30, 2012) (holding that a design
defect claim regarding a Glock pistol must be dismissed on summary judgment when a reasonable
alternative design is not identified). Because Plaintiff has not suggested any possible alternative
design, he cannot proceed.
Hooker’s contention that the pistol’s discharge is itself evidence that the firing pin safety
failed is hardly more than speculation or bare allegation that the pistol may be defective. The law,
however, requires more of the non-moving party in a motion for summary judgment. Ridgewood
Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999) (citations omitted) (“Once the
moving party points to evidence demonstrating no issue of material fact exists, the non-moving
party has the duty to set forth specific facts showing that a genuine issue of material fact exists and
that a reasonable factfinder could rule in its favor.”). Further, “speculation and conclusory
allegations do not satisfy this duty.” Id.
Clearly, Plaintiff has failed to present or point to evidence supportive of claims on which
he has the burden of proof. Because Plaintiff has not sufficiently identified defects with the pistol
or excluded other possible reasons for discharge, he cannot establish proximate cause, a requisite
element in a product liability claim. As such, a “complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex,
477 U.S. at 317. Thus, the Court grants summary judgment in favor of Defendant.
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IV.
CONCLUSION
For the reasons mentioned above, the Court GRANTS Defendant’s motion for summary
judgment. An appropriate order shall accompany this opinion.
/s/Esther Salas
Esther Salas, U.S.D.J.
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