Lee et al v. Smith & Wesson Corp.

Filing 52

Memorandum of opinion and Order granting Defendant's Motion in limine to Preclude Testimony of Roy Ruel (Related Doc # 46 ). Judge Dan Aaron Polster on 1/23/13.(P,R)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARK D. LEE et al.,

Plaintiffs,
vs.
SMITH & WESSON CORP.,
Defendant.

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Case No. 1:11-CV-1940
Judge Dan Aaron Polster

MEMORANDUM OF OPINION
AND ORDER

Before the Court in this product-liability case, which involves an allegedly defective
revolver (a Smith & Wesson 460XVR revolver), is Defendant Smith & Wesson’s motion to
preclude the testimony of Roy Ruel, Plaintiffs’ expert witness. The motion has been fully
briefed and is ripe for decision.
I.

Background
On November 11, 2006, Plaintiff Mark D. Lee was target shooting with his Smith &

Wesson 460XVR revolver, which he had bought from a sporting-goods store two months earlier.
He fired the gun twice that day without incidence. On his third shot, however, something
happened that seriously damaged his right eye. Lee said it felt like he had been “hit...with a
sledgehammer in the face....” (Doc. # 46-9 at 67). One of two men with whom Lee was target
shooting that day said the gun fired louder on the third shot than on the previous two. He also
noticed an unusual yellowish flash. The other witness likewise heard a strange noise and noticed
a brighter-than-normal flash.

After the third shot, Lee lowered the gun and passed it to the men. They said the cylinder
was open when Lee passed the gun. They even tried, but were unable, to get the cylinder closed.
Lee was taken to the hospital where he was diagnosed with a very large corneal abrasion
as well as acute right-eye hyphema and abrasion, nasal abrasion, and a superficial, lower lid
laceration. (Doc. # 50-5 at 2). He continues to suffer significant vision loss and pain in his right
eye. His injuries have had a devastating effect on his work.
The parties have different theories as to what exactly happened when Lee fired the third
shot. Defendant argues that there was nothing wrong with the gun; rather, the injury was caused
by Lee’s “improper handling of the firearm, including his failure to control it during recoil.”
(Doc. # 46-1 at 4). When the gun recoiled, Defendant contends, it struck Lee in the face, causing
blunt-force trauma to the right eye.
Plaintiffs’ expert witness, Roy Ruel, who is a mechanical engineer with over 40 years of
experience that includes training in firearms and gun function, mechanics, and safety, offers a
different explanation. He opines the injury occurred as a result of a defect in the gun that
allowed hot, high-pressure gases to explode out the back and into Lee’s face. That happened,
Ruel thinks, because the gun’s cylinder was not fully closed when Lee fired the third shot. Ruel
explains:
When a revolver’s cylinder is not fully closed and locked, the chamber and
cartridge do not line up with the barrel and when fired the bullet enters the barrel
slightly off-center. The result is that a higher than normal pressure is required in
the gun’s cylinder to force the misaligned bullet into and down the barrel. The
high pressure causes the gap between the barrel and cylinder to widen and a large
amount of gas and unburned power to be expelled, creating a much brighter flash
and louder report.
(Doc. # 50-7 at 3).

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Normally, a gun cannot be fired unless the cylinder is fully closed. Ruel believes Lee
was able to trick the gun into thinking the cylinder was closed—even though it was still slightly
open—by pushing on the thumb latch, which is located just above the handgrip. The ability to
trick the gun into thinking the cylinder was closed is, according to Plaintiffs’ theory, the
product’s defect.
Defendant now seeks to exclude Ruel’s testimony under Rule 702 of the Federal Rules of
Evidence. Defendant offers three reasons for excluding Ruel’s testimony: 1) He is not qualified
to render his opinion; 2) His opinion is not relevant because it is wholly inconsistent with Lee’s
sworn testimony and invites speculation; and 3) His opinion is not reliable.
II.

Analysis
Under Rule 702, a witness may offer scientific, technical, or other specialized testimony

only if the following three requirements are met: (1) the witness is qualified by knowledge, skill,
experience, training, or education; (2) his testimony is relevant; and (3) his testimony is reliable.
In re Scrap Metal Antistrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008).
While Defendant’s arguments on Ruel’s qualifications and the methodology he employed
go to the weight, not the admissibility, of his testimony, Defendant is correct that Ruel’s
testimony fails to satisfy the “relevancy” requirement of Rule 702. The “relevancy” prong of
Rule 702 requires that an expert’s theory adequately “fit” the facts of the case. See Daubert v.
Merrell Dow Pharms., 509 U.S. 579, 591 (1993). Expert testimony that does not fit the facts
does not relate to an issue in the case and, therefore, is not relevant. Id. (citation omitted).
In his expert report, Ruel writes:
When Mr. Lee attempted to fire his gun for the third shot, the cylinder failed to
fully close and the gun would not fire. Not understanding the problem and as the
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cylinder appeared to be closed, Mr. Lee pushed on the thumb latch and in so
doing was able to cock and fire the gun with the result experienced.
(Doc. # 50-7 at 3). But that contradicts Lee’s own sworn testimony.
Lee testified he had no difficulty whatsoever firing the gun a third time. (Doc. # 46-9 at
180–82). He even denied what Ruel speculates he did: Try, but fail, to pull the trigger. (Id.). In
fact, Lee said everything was exactly the same as when he fired the first two shots. (Id.). Lee
also testified, contrary to Ruel’s theory, that the cylinder was closed when he fired the third
round. (Id. at 179). In addition, Lee’s demonstration, as depicted in a photograph included in
Defendant’s brief, makes clear that he never touched he thumb piece during the firing sequence,
as Ruel speculates he did. (See Doc. # 46-1 at 8).
Indeed, Ruel even admitted he disregarded Lee’s testimony about the facts surrounding
the firing of the third bullet. In his deposition, Ruel stated that, in forming his conclusion, he has
rejected significant parts of Lee’s deposition testimony about what occurred. Here is a telling
exchange between defense counsel and Ruel:
Q: You’re not accepting [Lee’s] sworn testimony as part of your analysis of this
case?
A: That’s correct.
Q: Because you would agree that his account of the events of the event of [sic]
11-11-06 is different from your reconstruction?
A: It also -- yeah. It agrees with an account that the cylinder was open after the
event.
(Doc. # 46-4 at 19). Here is another revealing exchange:
Q: [Your] reconstruction of the events is inconsistent with Mr. Lee’s testimony as
to what happened on November 11, 2006?
A: As reflected in this, yes.
Q: When you say “as reflected in this,” you are talking about his deposition?
A: Yes, I’m talking about his deposition as of that date.
(Id.).
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In short, Ruel offers an opinion that contradicts Lee’s sworn testimony. Such an opinion
clearly does not satisfy the “relevancy” requirement under Rule 702, for it is an opinion that does
not fit the facts of the case.
III.

Conclusion
For this reason, the Court GRANTS Defendant’s Motion to Preclude the Testimony of

Roy Ruel Pursuant to Fed. R. Evid. 702 (Doc. # 46).
Furthermore, the Court believes that Plaintiffs cannot survive a motion for summary
judgment on their design- and manufacturing-defect claims without an expert. If Plaintiffs
concur with this assessment, the Court suggests that counsel submit a stipulated dismissal entry,
preserving Plaintiffs’ right to appeal the ruling on Mr. Ruel. Otherwise, the Court invites
Defendant to file a motion for summary judgment.
IT IS SO ORDERED.
/s/Dan Aaron Polster1/23/13
Dan Aaron Polster
United States District Judge

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