O'Neal v. Remington Arms Company, LLC et al

Filing 104

ORDER denying 94 Motion to Exclude Expert Testimony and Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 4/14/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CAROL O'NEAL, as Personal
Representative of the Estate of Lanny
O’Neal, Deceased,

4:11-CV-04182-KES

ORDER DENYING MOTION TO
EXCLUDE EXPERT TESTIMONY AND
MOTION FOR SUMMARY JUDGMENT

Plaintiff,
vs.
REMINGTON ARMS COMPANY, L.L.C.,
SPORTING GOODS PROPERTIES, INC.,
and E.I. DUPONT DE NEMOURS AND
COMPANY,
Defendants.

Defendants, Remington Arms Company, LLC, Sporting Goods Properties,
Inc., and E.I. Dupont De Nemours and Company, move the court to disqualify
Charles Powell as an expert witness for plaintiff, Carol O’Neal. Defendants also
move the court for summary judgment on all of O’Neal’s claims. O’Neal resists the
motion.1 For the following reasons, the court denies the motion to exclude Powell
as an expert and denies the motion for summary judgment.
PROCEDURAL HISTORY
O’Neal is the widow and personal representative of the estate of Lanny
O’Neal. The defendants are entities in the business of selling firearms. O’Neal
brought an action against defendants after Lanny was shot and killed in a hunting

As described more fully below, defendants filed a single motion styled
as a “renewed motion for summary judgment and Daubert motion to exclude
plaintiff’s liability expert.” Docket 94. Thus, the court refers to defendants’
combined arguments as a single motion.
1

accident on November 9, 2008. The firearm involved in the accident was a
Remington Model 700 rifle. O’Neal sued defendants alleging strict liability (product
defect), strict liability (failure to warn), negligent design and manufacture,
negligent failure to warn, and spoliation of evidence. Docket 1. O’Neal’s spoliation
claim was dismissed following a motion by defendants because it is not an
independent cause of action. Docket 36.
The parties submitted several motions after discovery concluded.2 O’Neal
moved for partial summary judgment on the issue of product defect, arguing issue
preclusion applied. Defendants moved to exclude Powell’s testimony and for
summary judgment on all of O’Neal’s claims. The court denied O’Neal’s motion for
summary judgment and granted defendants’ motion for summary judgment.
Docket 81. Because the court granted defendants’ motion for summary judgment,
the court denied defendants’ motion to exclude Powell’s testimony as moot. Id.
O’Neal moved the court to reconsider its order. The court denied the motion.
Docket 86. O’Neal appealed.
The Eighth Circuit Court of Appeals reversed and remanded. O’Neal v.
Remington Arms Co., LLC, 803 F.3d 974 (8th Cir. 2015). The Eighth Circuit
concluded that the record contained sufficiently disputed material facts to
preclude entry of summary judgment in defendants’ favor. Id. at 982. On remand
to this court, defendants renewed their motion to exclude Powell’s testimony and
their motion for summary judgment on all of O’Neal’s claims.

Defendants moved for summary judgment prior to the close of
discovery. Docket 25. The court denied the motion. Docket 39.
2
2

I.

Defendants’ Motion to Exclude Powell’s Testimony
LEGAL STANDARD
In diversity cases, federal law controls whether expert testimony is

admissible. Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Fed. R.
Evid. 702. Under Rule 702, the trial court acts as a “gatekeeper” by screening a
party’s proffered expert testimony for its reliability and relevance. Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999) (“The objective of [the gatekeeping]
requirement is to ensure the reliability and relevancy of expert testimony.”).
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a)

the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles and
methods; and

(d)

the expert has reliably applied the principles and
methods to the facts of the case.

Fed. R. Evid. 702. “Rule 702 reflects an attempt to liberalize the rules governing
the admission of expert testimony.” Lauzon v. Senco Prods., Inc., 270 F.3d 681,
686 (8th Cir. 2001) (quoting Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.
1999)). “The rule clearly ‘is one of admissibility rather than exclusion.’ ” Id.

3

(quoting Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991)). Thus,
“[t]he exclusion of an expert’s opinion is proper only if it is ‘so fundamentally
unsupported that it can offer no assistance to the jury[.]’ ” Wood v. Minn. Mining &
Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (quoting Hose v. Chicago Nw. Transp.
Co., 70 F.3d 968, 974 (8th Cir. 1995)).
The Eighth Circuit has determined that a district court should apply a
three-part test when screening expert testimony under Rule 702.
First, evidence based on scientific, technical, or other specialized
knowledge must be useful to the finder of fact in deciding the ultimate
issue of fact. This is the basic rule of relevancy. Second, the proposed
witness must be qualified to assist the finder of fact. Third, the
proposed evidence must be reliable or trustworthy in an evidentiary
sense, so that, if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.
Lauzon, 270 F.3d at 686 (internal citations and quotations omitted). With respect
to relevancy, expert testimony will be relevant and helpful to the jury if it concerns
matters beyond the general knowledge of average individuals. See United States v.
Shedlock, 62 F.3d 214, 219 (8th Cir. 1995). With respect to an expert's
qualifications, Rule 702 recognizes five bases for qualifying an expert, which
include “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702.
Significantly, “[g]aps in an expert witness's qualifications or knowledge generally
go to the weight of the witness's testimony, not its admissibility.” Robinson v.
GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006).
To satisfy the reliability requirement, the party offering the expert testimony
must show by a preponderance of the evidence “that the methodology underlying
[the expert's] conclusions is scientifically valid.” Barrett v. Rhodia, Inc., 606 F.3d

4

975, 980 (8th Cir. 2010). In making the reliability determination, the court may
consider: (1) whether the theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer review or publication;
(3) whether the theory or technique has a known or potential error rate and
standards controlling the technique's operations; and (4) whether the theory or
technique is generally accepted in the scientific community. Russell v. Whirlpool
Corp., 702 F.3d 450, 456 (8th Cir. 2012). Additional factors to consider include:
“whether the expertise was developed for litigation or naturally flowed from the
expert's research; whether the proposed expert ruled out other alternative
explanations; and whether the proposed expert sufficiently connected the proposed
testimony with the facts of the case.” Polski v. Quigley Corp., 538 F.3d 836, 839
(8th Cir. 2008). “This evidentiary inquiry is meant to be flexible and fact specific,
and a court should use, adapt, or reject” these factors as the particular case
demands. Russell, 702 F.3d at 456.
Also when making the relevance inquiry, the court should focus on
“principles and methodology, not on the conclusions that they generate.” Kuhn v.
Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (citing Daubert, 509 U.S. at 595). At
times, conclusions and methodology are not entirely distinct from one another,
and the court “ ‘need not completely pretermit judicial consideration of an expert's
conclusions.’ ” Id. (quoting Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d
11, 15 (1st Cir. 2011)). But “[a]s a general rule, the factual basis of an expert
opinion goes to the credibility of the testimony, not the admissibility, and it is up
to the opposing party to examine the factual basis for the opinion in cross-

5

examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001)
(internal quotations omitted).
District courts have discretion in determining whether to admit expert
witness testimony under Rule 702. See In re Air Crash at Little Rock Ark., on June
1, 1999, 291 F.3d 503, 509 (8th Cir. 2002). “That standard applies as much to the
trial court’s decisions about how to determine reliability as to its ultimate
conclusion.” Kumho Tire Co., 526 U.S. at 152. Nonetheless, the proponent of expert
testimony must prove its admissibility by a preponderance of the evidence.
Daubert, 509 U.S. at 592 n.10.
DISCUSSION
There is no genuine dispute that Powell is qualified to express an expert
opinion or that his opinion is relevant. Regarding Powell’s qualifications, he is a
professional engineer who has performed material failure analyses for a number of
years. He described his work as “the evaluation of failed components to determine
the underlying causes of the failure[.]” Docket 48-7 at 33. Powell has held several
teaching positions related to his field and has worked on engineering projects for
private and governmental agencies. Docket 48-8 at 3. Powell estimated that he has
served as an expert and performed failure analyses in approximately fifty cases
involving firearms. Docket 48-7 at 19. Thus, the court finds that Powell is qualified
to serve as an expert.
As to relevance, expert testimony is ordinarily required in product liability
actions. Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 407 (S.D.
2007). Whether a plaintiff’s theory is based on strict liability or negligence, expert

6

testimony is generally necessary to establish that a product is defective and that
the defect proximately caused the plaintiff’s injury. Id. at 7-11; see also Nationwide
Mut. Ins. Co. v. Barton Solvents, Inc., 855 N.W.2d 145, 151 (S.D. 2014) (“Expert
testimony is generally necessary to establish elements of negligence and strict
liability”). Powell explained that he would testify to the defects he has identified in
the subject rifle and the cause of the shooting incident. Docket 48-7 at 3. Thus,
the court finds that Powell’s testimony is relevant.
Regarding reliability, O’Neal argues that the Eighth Circuit resolved this
issue in her favor because the Eighth Circuit cited portions of Powell’s testimony
and Powell’s report in its opinion. The court disagrees. This court did not address
previously whether Powell’s testimony was admissible. Powell’s testimony and his
report were, therefore, considered as evidence and part of the summary judgment
record before the Eighth Circuit. The Eighth Circuit noted that “Remington
disputes most (if not all) of Powell’s opinions and testimony, as well as other facts
in the record,” but the court was “obligated to view them in the light most
favorable to O’Neal, the non-moving party.” O’Neal, 803 F.3d at 975 n.1. The
Eighth Circuit cited portions of Powell’s testimony and his report for the purpose of
determining whether the record contained sufficient circumstantial evidence to
defeat defendants’ motion for summary judgment. See id. at 981 (“for our purposes
in reviewing the grant of summary judgment, we agree with O'Neal that the
reasonable inferences supported by this record require us to reverse and remand
for further proceedings.”). But the Eighth Circuit explicitly declined to rule on the
admissibility of Powell’s testimony and, instead, directed this court to address the

7

issue in the first instance. Id. at 981. Thus, the Eighth Circuit did not hold that
Powell’s testimony is reliable or otherwise admissible.
Defendants argue primarily that Powell’s opinions are unreliable because he
cannot rule out alternative causes of the accident and that his testimony does not
fit with the facts of the case. They argue that Powell’s opinion boils down to
speculation. For purposes of defendants’ motion to exclude Powell’s testimony, the
court considers only whether the testimony is admissible and does not consider
whether it is sufficient to prove an element in O’Neal’s case. See Daubert, 509 U.S.
at 596 (noting the difference between admissibility and sufficiency).
A.

The Remington Model 700 Rifle

There is no dispute that the rifle involved in Lanny’s death was a Remington
Model 700 rifle. Because Powell’s testimony concerns several working parts of the
rifle, the court will describe briefly its relevant components.3 The rifle at issue here
was manufactured in 1971. Model 700 rifles manufactured at that time were
assembled with what is known as the “Walker” fire control system. For purposes of
this dispute, the relevant parts of the Walker fire control system are the trigger,
the connector, the sear, and the safety lever.
The connector is an elongated U-shaped piece of metal located in front of the
trigger. The sear is an independent piece of metal that interacts with the connector
and the firing pin. When the rifle is not being fired, the bottom tip of the sear rests
on and is supported by the top rear of the connector. The sear also restrains the
firing pin. When the trigger is pulled, the connector is pushed forward and the

Both parties’ proffered experts have described the role of these
components. See Docket 48-6; Docket 48-8.
8
3

bottom tip of the sear is allowed to fall behind the connector. This action releases
the firing pin, which allows the rifle to fire a cartridge. When the safety is in the
“safe” or “on” position, it physically lifts and restrains the sear away from its
engagement point with the connector. When the safety is moved to the “fire” or
“off” position, the sear is returned to its engagement point with the connector.
B.

Powell’s Analysis and Opinion

Powell concluded that the Remington Model 700 rifle was defective and that
the defect caused the accident that killed Lanny. He reviewed internal documents
from Remington, several reports generated by law enforcement officers who
investigated the incident, the known history of the rifle, and statements from
witnesses. Docket 48-7 at 8, 9, 13, 14, 23-25. Powell also relied on his own
knowledge and experience from performing failure analyses in approximately fifty
other cases involving firearms, some of which also involved Remington rifles. Id. at
19.
The South Dakota Supreme Court has found that there are three general
categories of product defects: (1) design defects; (2) manufacturing defects; and (3)
improper warnings. Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 912
(S.D. 1987). A design defect theory alleges that a product was constructed as
intended, but the entire design line is defective. Id. A manufacturing defect theory
alleges that an individual product was not constructed as intended and that the
deviations in the individual product’s construction render it defective. Id. An
improper warning theory alleges that an otherwise properly designed and

9

manufactured product is nonetheless hazardous because it lacks adequate
instructions or warnings as to its use. Id.
Powell testified that all Model 700 rifles manufactured at the time with the
Walker fire control system are defective. Docket 48-7 at 32. He opined, for
example, that because the connector separates briefly from the trigger every time
the rifle is fired, the period of separation allows for deposits such as dirt,
corrosion, or condensation to build up between the trigger and the connector.
Docket 48-8 at 5. These interferences can lead to misfires. Id. at 5-6. Moreover,
because the fire control components are enclosed in a riveted housing, users
cannot easily inspect the connector’s engagement with the sear. Id. at 7.
Because Powell testified that this alleged defect would infect the entire
product line, it is a design defect theory. Peterson, 400 N.W.2d at 912. But Powell
acknowledged that he could not testify with certainty that this alleged design
defect caused the accident in this case. See Docket 48-7 at 32. Specifically, he
testified as follows:
Q:

You agree, though, that you cannot offer an opinion to a
reasonable degree of certainty in the O’Neal case that the
design defect caused or contributed to cause this shooting?

A:

Correct.

Id.
Alternatively, however, Powell testified that the specific rifle involved in this
case was defective. He opined that many of the older Model 700 rifles fired
inadvertently when the user toggled the safety from the “on” to the “off” position.
Docket 48-8 at 6. Powell testified that Remington acknowledged by 1979 that

10

about 1% of the approximately 2,000,000 Model 700 rifles manufactured prior to
1975 (i.e., 20,000 rifles) were defectively made. Id. More specifically, those defective
rifles were manufactured with what Powell termed “inadequate sear lift.” Docket
48-7 at 31. Powell described the defect as “an insufficient clearance between the
sear and the connector such that if the safety is on and you pull the trigger, the
connector will get trapped in front of the sear and [be] allowed to drop.” Id. at 4.
Powell believed that the subject rifle was one of the 1% of Model 700 rifles that
were manufactured before 1975 that were defectively made. Id. Thus, it is a
manufacturing defect theory. Peterson, 400 N.W.2d at 912.
Powell explained the basis for his opinion. He testified that the rifle’s serial
number demonstrated that it was manufactured prior to 1975 and therefore within
the bevy of rifles susceptible to the 1% defect. Docket 48-7 at 8. He explained that
the 1% defect also tended to manifest itself randomly. Because the misfire that
killed Lanny appeared to be the first reported incident of the rifle misfiring, Powell
believed that the lack of other occurrences supported his conclusion that the rifle
in this case was manufactured with the 1% defect. Id. at 9. Also, Mark Ritter, the
individual who handled the gun at the time of the accident, testified that the rifle
discharged when he moved the safety from the “on” to the “off” position. Docket
48-1 at 24. Powell explained that Ritter’s testimony supported his conclusion that
the rifle had the 1% defect because the defect allowed Model 700 rifles to discharge
when the safety was toggled from the “on” to the “off” position. Docket 48-7 at 31.
Powell acknowledged that he was unable to examine the rifle because it had
been destroyed. Docket 48-7 at 4. And because he could not examine the rifle,

11

Powell further acknowledged that he could not determine definitively the amount
of sear lift actually present in the rifle at the time of the accident. Id. But Powell
explained that he was reasonably certain that his theory fit the circumstances of
the case. He testified as follows:
Q:

Okay. And is it your opinion that at the time of this shooting
this particular model 700 rifle had inadequate sear lift?

A:

I think that is the best explanation of what occurred.

Q:

Is that your opinion to a reasonable degree of certainty?

A:

Yes.

Id. at 4.
C.

Ruling Out Other Causes

Defendants argue that Powell did not adequately rule out other possible
causes of the accident. They argue that there are many other explanations for the
accident that do not support Powell’s theory. Defendants also argue that because
the rifle was destroyed, it is impossible to determine whether the rifle was, in fact,
defective.
First, Powell was asked whether a misfire could occur due to an owner’s
improper alteration or adjustment of the rifle’s fire control system. Powell agreed
that that could cause misfires. Docket 48-7 at 11. And Powell agreed that because
he could not inspect the rifle, he could not be certain whether the fire control
system was improperly altered or adjusted. Id. But Powell did not believe that this
scenario explained the cause of the accident. Rather, he testified that no one who
possessed the rifle acknowledged adjusting or altering the fire control system. Id.
at 12. And he explained that if the fire control system had been improperly altered

12

or adjusted, then there should have been more reported problems of the rifle
misfiring rather than the one occasion that led to Lanny’s death. Id. at 11-12.
Second, Powell was asked whether improper maintenance, abuse, or neglect
of the rifle could cause it to misfire. Powell agreed that that could also cause
misfires. Id. at 33. Likewise, Powell agreed that if some of the parts in the fire
control system were broken, then those broken parts could cause misfires. Id. at
18. And Powell acknowledged that he could not definitely rule out this potential
cause because he could not examine the rifle. Id. at 18, 33. But Powell explained
that there was no evidence that suggested the rifle had been improperly
maintained, abused, or neglected. Id. at 33. Similarly, he was unaware of any
evidence suggesting that parts of the rifle’s fire control system were broken. Id. at
18. Powell also explained that law enforcement briefly examined the rifle after the
accident. Id. None of the officers noted the presence of broken parts or that the
rifle showed signs of neglect. Id.
Third, Powell was asked whether replacing the Walker fire control system
with an after-market trigger mechanism could cause misfires. Powell agreed that if
the after-market trigger mechanism was itself defective, then that could cause
misfires. Id. at 17. Powell further agreed that liability would likely lie with the
manufacturer of the after-market trigger mechanism. Id. at 18. And Powell again
acknowledged that he could not inspect the rifle to determine whether the original
Walker fire control system had ever been replaced. Id. But Powell explained that
there was no evidence suggesting that the Walker fire control system had ever

13

been replaced and, in Powell’s opinion, Ritter’s description of the accident was
consistent with documented problems with the Walker fire control system. Id.
Fourth, Powell was asked whether it was possible that the rifle did not
misfire at all. That is, whether the rifle fired because Ritter pulled the trigger while
the safety was in the “off” position. Powell acknowledged that that scenario would
not be indicative of a defect. Id. at 35. But Powell explained that based on Ritter’s
testimony, he believed that the rifle fired when Ritter moved the safety from the
“on” to the “off” position. Id.
The common ground shared by all of defendants’ arguments is that Powell
cannot exclude definitively other potential causes of the accident that are
unrelated to a manufacturing defect theory. Under South Dakota law, a plaintiff
can rely on circumstantial evidence to support a products liability cause of action.
Crandell v. Larkin & Jones Appliance Co., 334 N.W.2d 31, 34 (S.D. 1983). And the
plaintiff need not “eliminate all other possible explanations of causation that the
ingenuity of counsel might suggest. It is sufficient that plaintiff negate his own and
others' misuse of the product.” Id. Thus, the “[p]roponents of expert testimony
need not demonstrate that the assessments of their experts are correct, and trial
courts are not empowered ‘to determine which of several competing . . . theories
has the best provenance.’ ” Kuhn, 686 F.3d at 625 (quoting Milward, 639 F.3d at
15). Rather, “it is [O’Neal’s] burden to show that [Powell] arrived at his . . . opinion
in a scientifically sound and methodological fashion.” Id. at 626. Moreover, “[the
reliability] requirement cannot be carried to a quixotic extreme.” Lauzon, 270 F.3d
at 693. “[A]n expert’s causation conclusion should not be excluded because he or

14

she has failed to rule out every possible alternative cause.” Id. (emphasis in
original) (internal quotation omitted). “[The expert] need only be able to explain
why other conceivable causes are excludable. [The opponent] may attack [the
expert’s] explanations of causation on cross examination, thereby requiring [the
expert] to offer valid explanations as to why his conclusion remains reliable.” Id. at
694; see also Bonner, 259 F.3d at 929 (“[T]he factual basis of an expert opinion
goes to the credibility of the testimony, not the admissibility.”).
Here, Powell explained that approximately 1% of the Model 700 rifles
manufactured before 1975 were constructed with a manufacturing defect. And he
concluded that the rifle in this case was one of those defectively manufactured
rifles and that the defect caused the accident that killed Lanny. Powell relied on
evidence in the record and his own skill and experience to arrive at his position.
Although Powell agreed that he could not be absolutely certain about his
conclusion, he also explained why he did not believe that any of the alternatives
posed by defendants caused the accident. The court finds that Powell has offered
sufficient justifications for his beliefs that those other conceivable causes are
excludable. It is not for this court to determine which of several competing theories
explaining the accident has the best provenance. Rather, the jury must decide
whether to believe Powell’s causation theory, and defendants are free to attack
Powell’s explanations through cross examination.
D.

Sufficient Connection to the Facts of the Case

Defendants argue that Powell’s theory does not fit the facts of the case.
According to Powell’s description of the manufacturing defect, a rifle with

15

inadequate sear lift would not misfire simply because the user toggled the safety
from the “on” to the “off” position. Rather, the trigger also must be pulled at some
point prior to toggling the safety. Docket 48-7 at 9-10. Powell’s testimony is as
follows:
Q:

When I said something prerequisite to it happening, that’s what
I was referring to. It’s not just the safety being on and the gun
having been cocked and somebody flipping the safety off and
the gun firing. It’s the safety being on, the trigger being
depressed --

A:

While it’s on safe.

Q:

--while it’s on safe and then the safety being released?

A:

Correct.

Id. at 10.
Defendants argue that the record does not support Powell’s theory. They
point to Ritter’s testimony. Ritter testified that he was sure he did not pull the
trigger at any time while he was handling the rifle. Docket 48-1 at 17. Ritter also
did not think the trigger was pulled inadvertently by anyone or anything else. Id.
He testified that he was “very positive” about his recollection. Id. at 19. Powell
acknowledged that he could not pinpoint when the trigger was pulled. Docket 48-7
at 10. But Powell believed that the trigger must have been pulled at some time
after the rifle was loaded and that it was “the best explanation for what caused the
fire-on-safe release.” Id.
Assuming Ritter’s memory of his own actions is accurate, his testimony does
not rule out the possibility that the trigger was pulled at another time by either an
object or another hunter. Powell testified that the trigger could have been pulled at

16

any time after the rifle was loaded for the defect to manifest itself. Docket 48-7 at
10. And he explained that the trigger could have been pulled by accidental means,
such as getting caught on an object or moved by an unaware individual. Id. at 35.
Ritter explained that he received the rifle from Lanny after Ritter’s own rifle
malfunctioned the previous day. Id. at 17. Ritter testified that the rifle was already
loaded when he took possession of it and that the safety was on. Id. at 19, 20. He
explained that he did not keep the rifle in a case while the hunters drove around
looking for deer, but rather he kept it “propped on the seat in between [himself]
and the other passenger.” Id. at 22. Ritter recalled that the rifle remained fully
loaded during the hunt. Id. Ritter acknowledged that keeping a loaded rifle in such
a position was not necessarily in compliance with firearm safety guidelines, but he
asserted that it is a common practice for hunters in South Dakota. Id. at 23. He
recalled moving the rifle in and out of the vehicle several times without unloading
it. Id. Ritter also testified that he did not have possession of the rifle every time he
got in and out of the vehicle. Id. at 22. And although Ritter testified that he
consumed a single beer for lunch, he acknowledged that several beer cans and
open bottles of hard liquor were later found in the vehicle on the day of the
accident. Id. at 18.
Ritter’s testimony, therefore, does not rule out the possibility that the trigger
was pulled prior to him receiving the rifle from Lanny. As Powell testified, it did not
matter when the trigger was pulled as long as it was pulled prior to the time the
safety was toggled from the “on” to the “off” position. Likewise, the manner in
which the rifle was kept inside the vehicle allowed for the possibility that someone

17

or some object depressed the trigger. And because Ritter acknowledged that he did
not possess the rifle at all times, he cannot testify with certainty that none of the
other hunters depressed the trigger.
While the events leading up to the accident and the destruction of the rifle
create several unknowns, expert opinions “must be supported by appropriate
validation–i.e., ‘good grounds,’ based on what is known.” Daubert, 509 U.S. at 590
(emphasis added). What is known is that the subject rifle was manufactured
during a time when approximately 1% of Model 700 rifles were constructed with a
manufacturing defect and that the rifle discharged in a manner that could be
indicative of that defect. The record contains at least some circumstantial evidence
supporting Powell’s theory. The Eighth Circuit has admonished district courts that
the better practice in close cases is to give the jury the opportunity to pass on the
proffered expert opinion evidence. Lauzon, 270 F.3d at 695. The court will follow
that practice here.
Based on the Rule 702 factors identified by the Eighth Circuit, the court
finds that Powell is qualified to provide an expert opinion and that his opinion
would be relevant and reliable. Thus, defendants’ motion to exclude Powell from
testifying is denied.
II.

Defendants’ Motion for Summary Judgment
As discussed, defendants moved previously for summary judgment on all of

O’Neal’s claims. They asserted three theories. First, that if Powell’s testimony is
excluded, then O’Neal’s claims must fail. Second, that O’Neal could not establish a
prima facie case for any of her product liability claims. And third, that summary

18

judgment should be entered in defendants’ favor as a spoliation sanction because
O’Neal destroyed the subject rifle. This court granted summary judgment in
defendants’ favor on the prima facie case theory, and the Eighth Circuit reversed.
Defendants now ask the court to enter summary judgment in their favor on either
of the two unadjudicated theories.
BACKGROUND
The pertinent facts,4 viewed in the light most favorable to O’Neal, the
nonmoving party, are as follows:
On November 9, 2008, Lanny O’Neal was deer hunting with friends near
Eagle Butte, South Dakota. Lanny loaned Ritter, one of the hunters, a Remington
Model 700 rifle to use for hunting that day. Lanny was accidentally shot and killed
while Ritter was handling the rifle. O’Neal alleges that the rifle was defective and
that the defect was the reason the rifle discharged, causing the death of her
husband.
The rifle was manufactured in 1971. Doug Swanson, Lanny’s step-father,
acquired the rifle in the early-to-mid 1980s from the estate of his mother’s
boyfriend, Albert Mcilvenna. Swanson does not know when or how Mcilvenna
acquired the rifle. Swanson occasionally lent the rifle to Shawn O’Neal, Lanny’s
brother. Neither Swanson nor Shawn adjusted or modified the rifle during the
times that they possessed it. Neither individual had a gunsmith inspect the rifle or

Because the two grounds asserted in defendants’ motion for summary
judgment do not concern the evidence supporting O’Neal’s products liability
claims, a detailed recitation of the facts underlying those claims is not
necessary.
19
4

work on it. Lanny acquired the rifle in approximately 2005 or 2006 and possessed
it until the day he lent it to Ritter.
Following Lanny’s death, Shawn contacted the law firm of Robins, Kaplan,
Miller & Ciresi, LLP (Robins Kaplan), in Minneapolis, Minnesota. In December
2008, Shawn and O’Neal met with attorney Chris Messerly of Robins Kaplan to
discuss the circumstances of Lanny’s death. After this meeting, Robins Kaplan
acquired the rifle from the FBI but never had the rifle inspected. On March 26,
2010, O’Neal and her friend, Joe Weir, an FBI agent, retrieved the rifle from Robins
Kaplan after it was determined that no legal action would be taken by Robins
Kaplan on behalf of O’Neal. O’Neal then asked Weir to destroy the rifle because she
did not want the rifle that killed her husband to be in her house. Weir complied
with O’Neal’s request and destroyed the rifle.
O’Neal brought this product liability action against defendants on December
9, 2011, after hearing about a news report detailing certain problems with
Remington rifles.
LEGAL STANDARD
Summary judgment on all or part of a claim is appropriate when the movant
“shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also In re Craig,
144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet its burden by
presenting evidence that there is no dispute of material fact or that the nonmoving
party has not presented evidence to support an element of its case on which it
bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

20

(1986). Once the moving party has met this burden, “[t]he nonmoving party may
not ‘rest on mere allegations or denials, but must demonstrate on the record the
existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of
Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “Further, ‘the mere existence of some
alleged factual dispute between the parties is not sufficient by itself to deny
summary judgment. . . . Instead, the dispute must be outcome determinative
under prevailing law.’ ” Id. (quoting Get Away Club, Inc. v. Coleman, 969 F.2d 664,
666 (8th Cir. 1992)). The facts, and inferences drawn from those facts, are “viewed
in the light most favorable to the party opposing the motion” for summary
judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The court applies the standard and burden associated with the applicable
substantive law to determine whether a genuine issue for trial exists. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). South Dakota substantive law
applies in this diversity action. Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991,
996 n.6 (8th Cir. 2007).
DISCUSSION
A.

Expert Testimony

Expert testimony is ordinarily required in product liability cases. Burley,
737 N.W.2d at 407. Defendants argue that if the court grants their motion to
exclude Powell’s testimony, then O’Neal’s products liability claims must fail
because Powell is her only expert. Because the court denied defendants’ motion to

21

exclude Powell’s testimony, the court denies defendants’ motion for summary
judgment on this issue.
B.

Spoliation Sanction

Defendants argue that summary judgment should be entered in their favor
because O’Neal destroyed the subject rifle. The four remaining claims in O’Neal’s
complaint are strict liability (product defect), strict liability (failure to warn),
negligent design and manufacture, and negligent failure to warn. Under South
Dakota law, each theory requires O’Neal to prove that the rifle was in a defective
condition and that the defective condition was the legal cause of the accident.
Burley, 737 N.W.2d at 408-10 (providing the elements of strict liability and
negligent product defects theories); Peterson, 400 N.W.2d at 912; Crandell, 334
N.W.2d at 34. Defendants argue that because the rifle was destroyed prior to the
instigation of this lawsuit, they cannot defend themselves fully against O’Neal’s
product liability claims. For example, defendants argue that because the rifle
cannot be examined, they cannot address adequately whether the rifle was
defective when it left defendants’ control or whether the rifle ever underwent a
substantial, unforeseeable change. According to defendants, the prejudice flowing
to them warrants summary judgment in their favor as a type of spoliation sanction
against O’Neal.
In diversity cases, “federal law applies to the imposition of sanctions for the
spoliation of evidence.” Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1006 (8th Cir.
2012); see also Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875 (8th Cir. 2015)
(instructing district courts to apply federal law in diversity cases to the issue of

22

giving an adverse inference instruction based on spoliation of evidence). “Prejudice,
bad faith, and evidence of an effort to suppress the truth are all required to impose
a sanction of dismissal based upon spoliation.” Sentis Grp., Inc. v. Shell Oil Co.,
763 F.3d 919, 924 n.1 (8th Cir. 2014). The Eighth Circuit has held that “a district
court must issue explicit findings of bad faith and prejudice” warranting the
sanction. Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 461 (8th Cir. 2013).
Here, there is no genuine dispute that O’Neal intentionally destroyed the
rifle. For purposes of this motion only, the court assumes that defendants have
been prejudiced by the rifle’s destruction. Thus, the issue is whether O’Neal
destroyed the rifle in bad faith in an effort to suppress the truth.
O’Neal testified that in December of 2008 she met with attorney Messerly to
investigate potential claims related to Lanny’s death. Docket 48-3 at 6. Evidence
including the rifle was delivered to the Robins Kaplan firm. Id. at 7. O’Neal
explained that she believed Messerly was investigating whether O’Neal could
recover against any insurance policies covering Ritter, the truck driver, or the
landowner. Id. at 6. She did not believe that Messerly was looking into a potential
claim against the rifle’s manufacturer. Id. In July of 2009, Messerly ultimately
declined to take O’Neal’s case, and no claims were asserted by Messerly on
O’Neal’s behalf. Id. at 9. According to O’Neal, Messerly did not believe that the
chances of success justified the costs of pursuing a lawsuit. Id. at 39.
O’Neal contacted Messerly again in October of 2009. Id. at 36. The rifle was
still stored by Robins Kaplan at this time. Id. O’Neal expressed her desire to have
the rifle destroyed, but she wanted to be sure of her decision. Id. O’Neal testified

23

that she asked Messerly if she should first have another attorney look at her case.
Id. She acknowledged that the rifle could still be important. Id.
O’Neal contacted an attorney named Malters in January of 2010. Id. Like
Messerly, Malters also ultimately declined to take O’Neal’s case. Id. at 37. O’Neal
explained that Malters agreed with Messerly’s financial analysis. Id. O’Neal
believed, but could not be sure, that Malters also told her that she could not sue a
gun manufacturer in South Dakota. Id. O’Neal decided to have the rifle destroyed
after Malters turned down her case. Id.
O’Neal testified that she retrieved the rifle from Robins Kaplan on March 26,
2010. Id. at 10. She testified that no one at Robins Kaplan instructed her to keep
the rifle or otherwise not have it destroyed. Id. at 9-10. The rifle was destroyed
shortly after O’Neal retrieved it. Id. at 8. O’Neal testified that she asked FBI Special
Agent Weir to destroy the rifle because she did not want it in her house. Id. She
explained that she believed a lawsuit against Ritter, the truck driver, or the
landowner was not economically worthwhile, and that she could not sue the gun’s
manufacturer. Id. at 42-43. O’Neal testified that she did not become aware of a
potential claim against the rifle’s manufacturer until she saw a documentary about
accidents involving Remington Model 700 rifles sometime after the subject rifle
had already been destroyed. Id. at 8. O’Neal explained that she then discovered the
connection between the documentary’s report about defective rifles and Ritter’s
explanation that the rifle fired without a trigger pull. Id. at 10. The documentary
noted that accidents similar to the one that killed her husband had led to lawsuits
being filed against Remington. Id. at 8. O’Neal contacted Messerly again as well as

24

other attorneys to ask whether she had a potential claim against Remington due to
the accident that killed her husband. Id. at 46-47. O’Neal then filed this lawsuit on
December 9, 2011.
Viewing the facts in the light most favorable to O’Neal, the court finds that
she did not destroy the rifle in bad faith. O’Neal had the rifle destroyed only after
speaking with several attorneys about asserting potential legal claims related to
the death of her husband. The rifle was not destroyed until after O’Neal believed
that she either should not or could not pursue a lawsuit. And it was not until after
the rifle’s destruction that O’Neal learned of other individuals who had brought
lawsuits against Remington for accidents involving Remington Model 700 rifles.
The facts do not suggest that O’Neal destroyed the rifle with an intent to hinder
Remington’s ability to defend itself or otherwise to suppress the truth. Rather, the
facts suggest that O’Neal destroyed the rifle after deciding that she would not
pursue legal recourse and that she did not want the weapon that killed her
husband to remain in her home.
At worst, the fact that O’Neal destroyed the rifle, although she believed in a
non-specified way that it could still be important, suggests that she acted
negligently. But the Eighth Circuit has explained that bad faith is not synonymous
with negligence. Stevenson v. Union Pac. R. Co., 354 F.3d 739, 746-47 (8th Cir.
2004) (disaffirming “a ‘knew or should have known’ negligence standard” as
“inconsistent with the bad faith consideration and the intentional destruction
required” to impose a spoliation sanction). Rather, “[a] spoliation sanction requires
a finding that a party intentionally destroyed evidence with a desire to suppress

25

the truth.” Bakhtiari v. Lutz, 507 F.3d 1132, 1135 (8th Cir. 2007). The court finds
that O’Neal did not intentionally destroy the rifle with a desire to suppress the
truth. Thus, defendants’ motion for summary judgment on this issue is denied.
CONCLUSION
The court concludes that Powell is qualified as an expert and that his
proffered testimony is reliable and would be useful to the jury. Therefore, he will
not be disqualified as an expert. The court also finds that defendants are not
entitled to summary judgment. Thus, it is
ORDERED that defendants’ renewed motion to exclude Powell’s testimony
and for summary judgment (Docket 94) is denied.
Dated April 14, 2016.

BY THE COURT:

/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

26