O'Neal v. Remington Arms Company, LLC et al
ORDER denying 45 Motion for Partial Summary Judgment; denying as moot 47 Motion to Exclude; granting 50 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 3/13/2014. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CAROL O’NEAL, as Personal
Representative of the Estate of
Lanny O’Neal, Deceased,
REMINGTON ARMS COMPANY,
SPORTING GOODS PROPERTIES,
E.I. DUPONT DE NEMOURS AND
ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND GRANTING
DEFENDANTS’ MOTION FOR
Plaintiff, Carol O’Neal, as personal representative of the estate of Lanny
O’Neal, deceased, brought an action against defendants, Remington Arms
Company, LLC, Sporting Goods Properties, Inc., and E.I. Dupont De Nemours
and Company, alleging strict liability (product defect), strict liability (failure to
warn), negligent design and manufacture, negligent failure to warn, and
spoliation of evidence. O’Neal’s spoliation of evidence claim was dismissed
following a motion by defendants because it is not an independent cause of
Defendants previously moved for summary judgment while discovery
was still occurring. The court denied defendants’ motion at that time, in part
because additional discovery may provide O’Neal sufficient facts to support her
Discovery has now concluded, and there are three motions pending
before the court. O’Neal moves for partial summary judgment on the issue of
product defect, arguing issue preclusion applies. Defendants move to exclude
the testimony of O’Neal’s expert witness, Charles Powell, and also move for
summary judgment on all of O’Neal’s claims. For the following reasons,
O’Neal’s motion for partial summary judgment is denied, defendants’ motion to
exclude the testimony of Powell is denied as moot, and defendants’ motion for
summary judgment is granted.
The pertinent facts, viewed in the light most favorable to O’Neal, the
nonmoving party, are as follows:
Carol O’Neal is the widow of Lanny O’Neal and is a resident of Brandon,
South Dakota. Defendants are business entities registered in the state of
Delaware and are in the business of selling firearms, one of which was the
Remington Model 700, .243 caliber bolt action rifle that is at the center of this
On November 9, 2008, Lanny O’Neal was deer hunting with friends near
Eagle Butte, South Dakota. Lanny loaned Mark Ritter, one of the hunters, a
Remington Model 700 rifle to use hunting that day. The hunters were traveling
in a pickup truck when they came across a deer. At the time, Ritter was sitting
in the back seat of the truck and Lanny sat in the front seat. After the truck
stopped, Ritter began exiting the truck so that he could shoot the deer. While
Ritter was exiting, the rifle discharged when Ritter moved the safety from the
“on” position to the “off” position, and Lanny was shot and killed. 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 stepfather, 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 nor does he know whether the rifle was ever
modified or altered prior to his acquisition of the rifle. Swanson would
occasionally loan the rifle to others and loaned it to Lanny in approximately
2005 or 2006. Lanny remained in possession of the rifle until the day of the
accident. The rifle was never altered or modified from the time Swanson
acquired it until the day of the accident, and Swanson did not have a
gunsmith examine the rifle while he owned it.
Following Lanny’s death, Shawn O’Neal contacted the law firm of Robins,
Kaplan, Miller & Ciresi, LLP (Robins Kaplan), in Minneapolis, Minnesota. In
December 2008, Shawn and plaintiff, Carol 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, plaintiff and her friend, Joe Weir,
retrieved the rifle from Robins Kaplan after it was determined that no legal
action would be taken by Robins Kaplan on behalf of plaintiff.1 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.
STANDARD OF REVIEW
Summary judgment is appropriate “if 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); Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (“[A] party seeking summary judgment always bears the initial
responsibility of . . . demonstrat[ing] the absence of a genuine issue of material
fact.”) (internal quotations omitted). The moving party must inform the court of
the basis for its motion and also identify the portion of the record that shows
that there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394,
395 (8th Cir. 1992). Once the moving party has met its initial burden, the
“nonmoving party may not ‘rest on mere allegations or denials, but must
O’Neal also met with a different attorney who declined to represent her
after she met with Robins Kaplan. The second attorney, however, never
obtained the rifle from Robins Kaplan.
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. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)). For purposes of summary judgment, the facts, and inferences drawn
from those facts, are “viewed in the light most favorable to the party opposing
the motion.” Matsushita Elec. Indus. Co. 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).
O’Neal’s Motion for Partial Summary Judgment
O’Neal moves for partial summary judgment on the issue of product
defect, arguing that collateral estoppel (also known as issue preclusion)
precludes defendants from relitigating the issue of whether their product—the
Model 700 rifle—was defective.
The application of issue preclusion in diversity cases is determined
according to state law. Royal Ins. Co. of Am. v. Kirksville Coll. of Osteopathic
Med., Inc., 304 F.3d 804, 807 (8th Cir. 2002). Under South Dakota law, “[i]ssue
preclusion refers to the effect of a judgment in foreclosing relitigation of a
matter that has been litigated and decided.” Nemec v. Goeman, 810 N.W.2d
443, 446 (S.D. 2012). “Issue preclusion only bars a point that was actually and
directly in issue in a former action and was judicially passed upon and
determined by a domestic court of competent jurisdiction.” Id. For issue
preclusion to apply, the following four elements must be met:
(1) The issue decided in the prior adjudication was identical with
the one presented in the action in question;
(2) There was a final judgment on the merits;
(3) The party against whom issue preclusion is asserted was a
party or in privity with a party to the prior adjudication; and
(4) The party against whom issue preclusion is asserted had a full
and fair opportunity to litigate the issue in the prior adjudication.
SDDS, Inc. v. South Dakota, 569 N.W.2d 289, 294 (S.D. 1997).
In support of her argument, O’Neal directs the court to three cases in
which judgments were entered against defendant Remington Arms Company.
The first, Lewy v. Remington Arms Company, Inc., 836 F.2d 1104 (8th Cir.
1988), is a case from the Western District of Missouri. In Lewy, plaintiffs
alleged claims for strict liability (design defect), strict liability (failure to warn),
and negligent failure to warn after a Remington Model 700 bolt-action rifle
discharged upon release of the safety. Id. at 1106. The jury returned a verdict
in favor of plaintiffs on all three claims, and the district court entered
judgment. The Eighth Circuit Court of Appeals, however, remanded the case
for a new trial after it concluded that the district court erred in admitting
evidence of similar incidents involving a Remington Model 600 rifle. Because
the case was remanded for a new trial, the determination in Lewy was not a
final judgment on the merits. Issue preclusion, therefore, does not apply.
Next, Campbell v. Remington Arms Company, 958 F.2d 376 (9th Cir.
1992) (unpublished), is a case from the District of Alaska. In Campbell, the
jury found against Remington on plaintiff’s product liability claim, in favor of
Remington on plaintiff’s negligence claim, and also found plaintiff was not
comparatively negligent. Id. at *1. To find in favor of plaintiff on the product
liability claim, the court instructed the jury that the plaintiff was required to
prove, among other things, that the product was defective. Docket 55 at 32.
The court further instructed the jury that a product is defective if (1) the
product failed to perform safely as an ordinary consumer would expect, or (2)
the design of the product caused the injury, and the benefits of the design did
not outweigh the risk of danger inherent in the design. Docket 55 at 33. The
jury returned a special verdict, finding that the product made by Remington—a
Model 700 barreled action2—was defective, but the verdict form did not identify
under which prong the finding was based. Docket 56 at 3-4. The jury could
have found either that the specific rifle in that case had a manufacturing
defect, i.e., a particular item in a line of products was defective, or a design
A barreled action includes essentially all parts of a rifle except the rifle
stock. Docket 55 at 26. The rifle at issue in Campbell underwent some
significant changes from the time it left Remington’s possession, including
having the barrel replaced and having certain parts nickel plated. Id.
defect, i.e., where an entire line of products all have the same defect. Because
a manufacturing defect claim involves a specific product, issue preclusion
would only apply in later litigation if the later suit involved the exact same
product. Because the Model 700 rifle involved in this suit is a different rifle
than the rifle in Campbell, the issue decided in Campbell is not identical to the
one presented here, which bars application of issue preclusion. Additionally,
South Dakota law recognizes the complete defense of post-sale modifications,
alterations, and product misuses. See SDCL 20-9-10. The Campbell jury was
not instructed on product misuse because the injury occurred before Alaska’s
Tort Reform Act took effect. Campbell, 958 F.2d 376, at *2. Therefore, the issue
decided in Campbell was not identical to the one presented in this case.
The third case relied on by O’Neal is Collins v. Remington Arms Company,
Inc., No. 91-11-10856-CV (D. Maverick Cnty, Tex., 293d Jud. D. May 1, 1994),
a state court case out of Texas. Docket 56-3. While the facts in Collins are not
entirely clear, it appears the plaintiff alleged that the rifle discharged while it
was being either loaded or unloaded and that the rifle was defective because it
did not provide a safety feature that would prevent such a discharge. Collins v.
Remington Arms Co., JVR No. 161125, 1994 WL 866816 (Tex. Dist. 1994).
Here, O’Neal claims the rifle is defective because it discharged when the safety
was moved from on to off, not while the rifle was being loaded or unloaded.
Therefore, the defect at issue here is different than the defect that was litigated
in Collins. Issue preclusion, thus, does not apply.
O’Neal has the burden to prove that the specific Model 700 rifle at issue
here is defective.3 O’Neal has not identified a final judgment that would allow
her to meet her burden via issue preclusion. Simply put, the issues decided in
Lewy, Campbell, and Collins are not identical to the issue presented here or
there was not a final judgment on the merits, and thus, whether the particular
Model 700 rifle in this case is defective was not actually litigated in previous
cases. Therefore, issue preclusion does not preclude litigation of whether the
Model 700 rifle involved in this case is defective, and O’Neal’s motion for
partial summary judgment is denied.
Defendants’ Motion for Summary Judgment
Defendants argue summary judgement should be granted in their favor
for three reasons. First, defendants urge the court to exclude O’Neal’s lone
expert witness, and upon doing so, O’Neal no longer has the expert opinion
necessary to establish a defect and causation. Second, defendants claim
O’Neal cannot establish two necessary elements of her claims: (1) that a defect
existed at the time the rifle left defendants’ control, and (2) that there was not
a substantial unforeseeable change to the rifle. And third, defendants claim
O’Neal also must prove that the defect existed at the time it left
Remington’s control and that there had not been a substantial unforeseeable
change in its condition. Burley v. Kytec Innovative Sports Equip., Inc., 737
N.W.2d 397, 408-09 (S.D. 2007); Peterson v. Safway Steel Scaffolds, 400
N.W.2d 909, 912 (S.D. 1987); Crandell v. Larkin & Jones Appliance Co., 334
N.W.2d 31, 34 (S.D. 1983); S.D. Civ. Pattern Jury Instructions 20-120-10 &
10-120-40 (2010). Each of these inquiries is specific to the particular Model
700 rifle that is at issue here.
O’Neal’s destruction of the rifle has unfairly prejudiced defendants’ ability to
defend themselves to the point that she should not be able to pursue her
claims. The court begins and ends its analysis with O’Neal’s ability to establish
The four remaining claims in O’Neal’s complaint are strict liability
(defective design and/or manufacture), strict liability (failure to warn),
negligent design and manufacture, and negligent failure to warn. Regardless of
the theory on which O’Neal relies, she must prove that the rifle was in a
defective condition and that the defective condition was a legal cause of the
injuries. See Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397,
408-10 (S.D. 2007) (setting out elements for strict liability and negligent
product defects); Robinson v. Brandtjen & Kluge, Inc., 500 F.3d 691, 697 (8th
Cir. 2007) (noting the similarity between strict liability and negligence
theories); Peterson v. Safway Steel Scaffolds, 400 N.W.2d 909, 912 (S.D. 1987);
Crandell v. Larkin & Jones Appliance Co., 334 N.W.2d 31, 34 (S.D. 1983); S.D.
Civ. Pattern Jury Instructions 20-120-10 & 10-120-40 (2010). Defendants
specifically argue that because she no longer has the rifle, O’Neal cannot show
that a defect existed at the time the rifle left defendants’ control or that there
had not been a substantial unforeseeable change to the rifle, thereby making
proof of causation impossible.
In its previous order denying defendants’ motion for summary judgment,
the court noted that plaintiff could establish the defectiveness of the rifle and
causation through circumstantial evidence. O’Neal v. Remington Arms Co., 913
F. Supp. 2d 736, 740 (D.S.D. 2012). The court also noted that because
discovery was still taking place, O’Neal could still produce evidence regarding
whether the rifle was ever modified or altered. Discovery has since concluded,
and O’Neal has not produced any additional evidence.
O’Neal has the burden of proving that there was not a substantial
unforeseeable change to the rifle from the time it left defendants’ control to the
time of the accident.4 Because O’Neal had the rifle destroyed before filing suit,
meeting her burden on this element is difficult. O’Neal has brought forth
evidence to show that the rifle was never modified or altered from some time in
the 1980s (when Doug Swanson acquired the rifle) until the time of the
accident. But the rifle was manufactured in 1971, and there is no evidence in
the record regarding whether the rifle was ever modified or altered during the
time period when it was first manufactured until the time Swanson acquired
it, over a ten-year period. O’Neal admitted that she does not “have much
information” on the history of the rifle. Docket 61-3 at 3. Similarly, Swanson
does not know whether the rifle was ever modified or altered prior to his
obtaining it. Docket 48-2 at 9. Moreover, there is no evidence that anyone
inspected the rifle at any time since Swanson acquired it for the purpose of
establishing whether it was ever modified or altered. In sum, over one-fourth of
This showing goes to both the issues of defect and causation.
the time the rifle was in existence is entirely unaccounted for, and because the
rifle was destroyed, O’Neal cannot show that the rifle was never modified or
In her response, O’Neal correctly notes that under South Dakota law a
plaintiff can use circumstantial evidence to establish both a defect and
causation in a product liability case. Crandell, 334 N.W.2d at 34. Here,
however, there is a complete lack of evidence such that a jury could only
speculate and guess as to issues in which O’Neal bears the burden of proof,
i.e., whether the rifle was in substantially the same condition as it was when it
left defendants’ control and whether that condition is a legal cause of the
injuries. “To survive a motion for summary judgment, the nonmoving party
must substantiate [her] allegations with sufficient probative evidence that
would permit a finding in [her] favor based on more than mere speculation,
conjecture, or fantasy.” Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782,
801 (8th Cir. 2011). After a careful review of the record, O’Neal has failed to
substantiate her allegations with sufficient probative evidence that would
permit a finding in her favor on any of her claims.5
Because the court finds in defendants’ favor on its motion for summary
judgment, it need not address defendants’ motion to exclude the testimony of
Charles Powell, plaintiff’s expert.
O’Neal failed to direct the court to a previous judgment that actually and
directly determined whether the rifle involved in this action was defective.
Thus, issue preclusion does not preclude litigation of whether the rifle involved
here is defective. Separately, O’Neal has failed to come forth with sufficient
probative evidence to avoid summary judgment. Accordingly, it is
ORDERED that plaintiff’s motion for partial summary judgment (Docket
45) is denied.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 50) is granted.
IT IS FURTHER ORDERED that defendants’ motion to exclude testimony
of Charles Powell (Docket 47) is denied as moot.
Dated March 13, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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