Stratton v. Thompson/Center Arms et al

Filing 193

MEMORANDUM DECISION AND ORDER granting in part and denying in part 154 Motion to Preclude Plaintiffs Expert Charles Powell; granting in part and denying in part 156 Motion for Summary Judgment. Signed by Judge David Nuffer on 5/2/22 (alt)

Case 4:18-cv-00040-DN-PK Document 193 Filed 05/02/22 PageID.5334 Page 1 of 26

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ZANE STRATTON,
Plaintiff,
v.
THOMPSON/CENTER ARMS, INC.;
SMITH & WESSON CORP.; SMITH &
WESSON HOLDING COMPANY;
CABELA’S WHOLESALE, LLC; AND
DOES I-X,
Defendants.

MEMORANDUM DECISION
AND ORDER
• GRANTING IN PART AND
DENYING IN PART MOTION TO
PRECLUDE PLAINTIFF’S EXPERT
CHARLES POWELL AND
• GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT
Case No. 4:18-cv-00040-DN-PK
District Judge David Nuffer
Magistrate Judge Paul Kohler

This case arises out of a firearm explosion that occurred on September 6, 2016. Plaintiff
Zane Stratton asserts various claims against Defendant Thompson/Center Arms, Inc.
(“Thompson”) for serious injuries resulting from the explosion of a muzzleloading rifle
manufactured by Thompson. Defendant has filed a Motion for Summary Judgment 1 on all of
Plaintiff’s claims, as well as a Motion to Preclude Plaintiff’s Expert Charles Powell (“Motion to
Preclude”). 2
Summary judgment will be GRANTED in favor of Defendant on Plaintiff’s claims for
failure to warn, manufacturing defect, and breach of implied warranty for a particular purpose.

1

Docket no. 156, filed December 10, 2021.

2

Docket no. 154, filed December 10, 2021.

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Plaintiff’s request for punitive damages will also be dismissed. Summary judgment on Plaintiff’s
other claims will be DENIED.
Additionally, the Motion to Preclude will be GRANTED in part and DENIED in part.
Mr. Powell will be permitted to provide expert testimony on the cause of the rifle explosion.
However, Mr. Powell will be precluded from offering expert testimony on subjects which require
expertise in warnings, external ballistics, or terminal ballistics. Mr. Powell will also not be
permitted to testify to other gun barrel explosions where he has no personal knowledge. The
prohibited opinions are identified in this order.
Contents
Undisputed Material Facts .............................................................................................................. 3
The Incident ........................................................................................................................ 4
Procedural History .......................................................................................................................... 5
Discussion ....................................................................................................................................... 6
The Motion for Summary Judgment ................................................................................... 6
The parties and claims which were previously dismissed without prejudice will be
dismissed with prejudice ............................................................................. 7
Summary judgment will be granted on Plaintiff’s manufacturing defect claims,
and request for punitive damages ............................................................... 8
Summary judgment will be denied on Plaintiff’s design defect claims.................. 8
Summary judgment will be denied on Plaintiff’s breach of express warranty
claims .......................................................................................................... 8
The Motion to Preclude .................................................................................................... 11
Standard for decision on expert witness testimony............................................... 12
Mr. Powell is qualified to testify on the Subject Bullet insofar as his testimony is
based off his expertise in internal ballistics, but not external and terminal
ballistics .................................................................................................... 13
Mr. Powell may not offer expert testimony on warnings ..................................... 18
Mr. Powell’s opinions are reliable because his conclusions were supported by
objective data and characterized by an appropriate degree of intellectual
rigor ........................................................................................................... 19
Mr. Powell may not testify to other lawsuits involving this particular type of
firearm exploding ...................................................................................... 23
Conclusion and Order ................................................................................................................... 24

2

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UNDISPUTED MATERIAL FACTS 3
1.

In 2007 or 2008, non-party Jarron Glazier (“Glazier”) purchased an Omega

Muzzleloading Rifle (“the Subject Rifle”) from either Cabela’s or Beaver Sport and Pawn. 4
2.

Omega Muzzleloading Rifles, including the Subject Rifle, are designed and

manufactured by Defendant Thompson. 5
3.

The Omega was designed with a barrel manufactured from AISI 1137 steel

(“1137 steel”). 6
4.

Omega rifles, including the Subject Rifle, were shipped with a manual which

contained warnings and instructions on use. 7
5.

The manual contained a “limited warranty.” 8

6.

The warranty read, in relevant part, “THOMPSON/CENTER ARMS provides a

warranty for all factory finished firearms for the LIFETIME OF THE ORIGINAL
CONSUMER PURCHASER.” 9

Defendant provided a “concise statement of the undisputed material facts” in its Motion, as required by DUCivR
56-1(b)(3) and cited “with particularity the evidence in the Appendix that supports each factual assertion.” Plaintiff
did not respond as required by DUCivR 56-1(c)(3) by identifying any “specific facts the opposing party contends are
genuinely disputed or immaterial.” The following Undisputed Facts are thus taken from the parties briefing on
Defendant’s Motion for Summary Judgment: Motion for Summary Judgment at 3-12; Plaintiff’s Opposition to
Defendant’s Motion for Summary Judgment (“Opposition to Summary Judgment”), docket no. 173, filed Jan. 17,
2022, at 1-4; and the record. These Undisputed Facts contain facts that are not necessarily material, but nevertheless
provide a more complete background of the events and circumstances to give context to the parties’ arguments.
Those facts, or portions thereof, identified in the parties’ briefing that do not appear in these Undisputed Facts are
either disputed; not supported by the cited evidence; not material; or are not facts, but rather, are characterization of
facts or legal argument.
3

4

Motion for Summary Judgment at 9.

5

Id. at 4-6.

6

Id. at 4.

7

Id. at 6.

Omega Manual (2 of 2), Exhibit D to Motion for Summary Judgment, docket no. 156-6, filed December 10, 2021,
at 1.

8

9

Id.

3

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7.

Glazier shot the Subject Rifle approximately 10 times per year during his

ownership with no apparent issue. 10
8.

In the summer of 2012, Plaintiff purchased the Subject Rifle from Glazier.

Plaintiff also received the manual package, which included the written manual and a CD. 11
9.

Plaintiff read the owner’s manual after he purchased the rifle. 12

10.

Plaintiff estimates that between 2012 and 2016, he fired the Subject Rifle

approximately 30 times per year without issue. 13
The Incident
11.

On September 6, 2016, Plaintiff and his brother went to Cedar Mountain, near

Cedar City, Utah, to fire their muzzle-loading rifles. 14
12.

Plaintiff brought the Subject Rifle to fire. 15

13.

September 6th was the first day of the hunting season that Plaintiff shot the rifle. 16

14.

Plaintiff testified at a deposition that he cleaned the Subject Rifle prior to firing. 17

15.

Plaintiff testified that he loaded the Subject Rifle with black powder and a bullet

(the “Subject Bullet”), seated the Subject Bullet with a ramrod, and removed the ramrod. 18

10

Motion for Summary Judgment at 10.

11

Motion for Summary Judgment at 10.

12
Id.; Plaintiff’s Deposition 9/2/19, Exhibit G to Motion for Summary Judgment (“Stratton Depo”), docket no. 1569 at 110:3–8.
13

Motion for Summary Judgment at 11.

14

Id. at 11; Stratton Depo at 66:23–67:7.

15

Motion for Summary Judgment at 11.

16

Stratton Depo at 68:15-69:14.

17

Motion for Summary Judgment at 11; Stratton Depo at 78:14–79:4.

Stratton Depo at 79:17–80:11, 84:4–12. Contrary to local rules, Defendant did not dispute Plaintiff’s proposed
statement of material fact that Plaintiff properly loaded and seated the bullet. However, it is clear from the record
that Plaintiff’s testimony is disputed by Defendant.
18

4

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16.

When Plaintiff pulled the trigger, the barrel of the Subject Rifle exploded, injuring

his hands. 19
PROCEDURAL HISTORY
In June 2018, Plaintiff filed a complaint asserting various claims against Thompson,
Smith & Wesson Corp., Smith & Wesson Holding Company, and Cabela’s Wholesale, LLC as a
result of his injury. 20 Specifically, Plaintiff asserted claims for (1) strict liability failure to
warn; 21 (2) strict liability design defect; 22 (3) strict liability manufacturing defect; 23 (4)
negligence, including negligent failure to warn, negligent design, and negligent manufacturing of
the rifle; 24 (5) breach of express warranty; 25 (6) breach of implied warranty of merchantability 26;
and (7) breach of implied warranty of fitness for a particular purpose. 27 The complaint requested
compensatory and punitive damages. Several of the claims, as well as Defendants Smith &
Wesson Corp., Smith & Wesson Holding Company, and Cabela’s Wholesale, LLC, were
dismissed without prejudice though stipulated motions. 28

19

Motion for Summary Judgment at 11; Stratton Depo at 85:12–87:2

Complaint, docket no. 2, filed June 18, 2018. Plaintiff originally filed suit against “Cabela’s, Inc.” but that party
was replaced with Cabela’s Wholesale, LLC in July 2018. First Amended Complaint, docket no. 17, filed July 9,
2018.
20

21

Complaint at 5.

22

Id.

23

Id.

24

Id. at 6.

25

Id. at 7.

26

Id.

27

Id. at 8.

Order Granting [42] Joint Motion to Change Location of Holding Court for Pretrial Matters from St. George to
Salt Lake City; and Deferring Ruling in Part, Granting in Part, and Denying in Part [26] Defendants
Thompson/Center Arms, Smith & Wesson Corp., and Smith & Wesson Holding Company’s Partial Motion to
Dismiss Pursuant to Rules 12(B)(2) and 12(B)(6), docket no. 50, filed October 11, 2018; Order Granting Dismissal
of Defendants Smith & Wesson Corp. and Smith & Wesson Holding Company Without Prejudice, docket no. 62,
filed January 11, 2019; Order Dismissing Cabela’s Wholesale, LLC, docket no. 81, filed November 20, 2019.

28

5

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On December 10, 2021, 29 Thompson filed its Motion for Summary Judgment and Motion
to Preclude. Plaintiff filed responses to the Motion for Summary Judgment 30 and the Motion to
Preclude. 31 And Thompson filed replies in support of the Motion for Summary Judgment 32 and
the Motion to Preclude. 33
DISCUSSION
The Motion for Summary Judgment
Summary judgment is only appropriate if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 34 A factual dispute is genuine
when “there is sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way” 35 or “if a reasonable jury could return a verdict for the nonmoving party.” 36 A
fact is material if “it is essential to the proper disposition of [a] claim.” 37 In ruling on a motion
for summary judgment, the factual record and all reasonable inferences drawn therefrom are
viewed in the light most favorable to the nonmoving party. 38

29
On that same day, Plaintiff and Thompson filed eight other motions in limine and motions to preclude experts.
Those motions will be addressed in a separate order.
30

Opposition to Summary Judgment.

Plaintiff’s Opposition to Defendant’s Motion to Preclude Plaintiff’s Expert Charles Powell, docket no. 174, filed
January 26, 2022.
31

32

Reply in Support of Defendant’s Motion for Summary Judgment, docket no. 183, filed February 9, 2022.

Reply in Support of the Motion to Preclude Plaintiff’s Expert Charles Powell, docket no. 182, filed February 9,
2022.
33

34

Fed. R. Civ. P. 56(a).

35

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994) (citation and internal
quotation marks omitted).
36

37

Adler, 144 F.3d at 670.

38

Id.

6

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The parties and claims which were previously dismissed without prejudice will be
dismissed with prejudice
On October 11, 2018, Plaintiff’s Fifth Cause of Action for breach of implied warranty for
a particular purpose and Plaintiff’s failure to warn claims were dismissed without prejudice. 39 On
January 11, 2019, Plaintiff’s stipulated motion to dismiss Defendants Smith & Wesson Corp. and
Smith & Wesson Holding Company without prejudice was granted. 40 On November 20, 2019,
Defendant’s stipulated motion to dismiss Defendant Cabela’s Wholesale, LLC was granted. 41
Thompson seeks to convert these dismissals without prejudice to dismissals with prejudice
because the deadlines for Plaintiff to amend pleadings and conduct discovery have now
expired. 42 Plaintiff does not oppose the motion to dismiss the parties with prejudice or the
motion to dismiss the failure to warn claim with prejudice. 43 Plaintiff does not address the
motion in regards to the breach of implied warranty of fitness for a particular purpose; however,
as previously noted, that claim was dismissed without prejudice and the time to amend has
passed. 44 Therefore, Plaintiff’s claims for failure to warn and breach of implied warranty for a
particular purpose, and Defendants Smith & Wesson Corp., Smith & Wesson Holding Company,
and Cabela’s Wholesale, LLC, are dismissed with prejudice.

39
Order Granting [42] Motion to Change Location of Holding Court for Pretrial Matters from St. George to Salt
Lake City; and Deferring Ruling in Part, Granting in Part, and Denying in Part [26] Defendants Thompson/Center
Arms, Smith & Wesson Corp., and Smith & Wesson Holding Company’s Partial Motion to Dismiss Pursuant to
Rules 12(b)(2) and 12(b)(6).
40
Order Granting Dismissal of Defendants Smith & Wesson Corp. and Smith & Wesson Holding Company Without
Prejudice.
41

Order Dismissing Cabela’s Wholesale, LLC.

42

Motion for Summary Judgment at 13-14.

43

Opposition to Summary Judgment at 4.

See Order Granting [42] Motion to Change Location of Holding Court for Pretrial Matters from St. George to Salt
Lake City; and Deferring Ruling in Part, Granting in Part, and Denying in Part [26] Defendants Thompson/Center
Arms, Smith & Wesson Corp., and Smith & Wesson Holding Company’s Partial Motion to Dismiss Pursuant to
Rules 12(b)(2) and 12(b)(6).
44

7

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Summary judgment will be granted on Plaintiff’s manufacturing defect claims, and request
for punitive damages
Thompson seeks summary judgment on Plaintiff’s manufacturing defect claims and
Plaintiff’s request for punitive damages. Specifically, Thompson argues that (1) Plaintiff’s
manufacturing defect claims fail because it is undisputed that Subject Rifle was manufactured in
accordance with its specifications 45 and (2) Plaintiff’s punitive damages claim fails because there
is no evidence that Thompson acted with deliberate indifference to a risk of bodily harm. 46
Plaintiff does not oppose summary judgment on those claims. 47 Accordingly, summary judgment
will be granted in favor of Thompson on Plaintiff’s claims for manufacturing defects and for
punitive damages. Those claims will be dismissed with prejudice.
Summary judgment will be denied on Plaintiff’s design defect claims.
Thompson moves for summary judgment on Plaintiff’s design defect claims. Thompson’s
sole basis for this argument is that an expert witness is required to establish a design defect. It
contends that because Plaintiff’s expert, Charles Powell, should be precluded from testifying,
Plaintiff’s claim necessarily fails. 48 As further detailed infra, Mr. Powell will be permitted to
provide expert testimony on the materials failure of the Subject Rifle. Therefore, summary
judgment on Plaintiff’s design defect claim is denied.
Summary judgment will be denied on Plaintiff’s breach of express warranty claims
In the sale of the Subject Rifle, Thompson provided a warranty for the “lifetime of the
original consumer purchaser.” 49 Thompson moves for summary judgment on Plaintiff’s breach

45

Id. at 15-16.

46

Id. at 21-24.

47

Opposition to Summary Judgment at 4.

48

Id. at 14-15.

49

Omega Manual (2 of 2) at 1.

8

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of express warranty claim, arguing that Plaintiff is not entitled to this warranty because he was
not the original consumer purchaser. 50 Because Utah Code § 70A-2-318 requires a seller’s
express warranty to extend to any person who may reasonably be expected to use a good,
summary judgment will be denied.
Utah Code § 70A-2-318 states that:
A seller's warranty whether express or implied extends to any person who may
reasonably be expected to use, consume, or be affected by the goods and who is
injured by breach of the warranty. A seller may not exclude or limit the operation
of this section with respect to injury to the person of an individual to whom the
warranty extends. 51
This language is derived from § 2-313 of the Uniform Commercial Code; specifically,
“Alternative C” of that code. 52 Courts in states which have adopted similar statutes have
concluded this language prevents a seller of goods from excluding any person who may
reasonably be expected to use those goods from a warranty. 53
In Stroklund v. Thompson/Center Arms, the United States District Court for the District
of North Dakota, applying North Dakota law, 54 held the question of whether an identical
warranty extended to a secondhand purchaser was for the jury. 55 In that case, a purchaser of a
secondhand gun, originally manufactured by Thompson, brought a claim against Thompson for

50

Motion for Summary Judgment at 20-21.

51

Utah Code Ann. § 70A-2-318.

Gary E. Sullivan & Braxton Thrash, Purchasers Lacking Privity Overcoming "The Rule" for Express Warranty
Claims: Expanding Judicial Application of Common Law Theories and Liberal Interpretation of U.C.C. Section 2318, 5 Drexel L. Rev. 49, 61 (2012)
52

Disher v. Tamko Bldg. Prod., Inc., No. 14-CV-740-SMY-SCW, 2015 WL 4609980, at *9 (S.D. Ill. July 31, 2015)
(applying Colorado law). While Colorado has adopted a modified version of “Alternative B” of § 2-313, the
language of “Modified Alternative B” is substantially similar to Alternative C, and is comparable for the purpose of
this analysis. See Sullivan and Thrash, supra at 63-64, 97.
53

North Dakota, like Utah, has adopted Alternative C of UCC § 2-313. Accordingly, the Stroklund court’s analysis
is persuasive here.
54

55

Stroklund v. Thompson/Ctr. Arms Co., No. 4:06 CV-08, 2007 WL 4191740, at *7 (D.N.D. Nov. 21, 2007).

9

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breach of express warranty. 56 Thompson argued that its warranty, which (like the warranty at
issue here) was “for the LIFETIME OF THE ORIGINAL PURCHASER,” did not apply to
subsequent purchasers. Chief Judge Hovland rejected that argument, stating that the “plain
language of [Alternative C] provides that the question of to whom an express or implied
warranty extends is a question of who may reasonably be expected to use, consume, or be
affected by the goods, and as such is a question for the jury to resolve at trial.” 57
If a jury finds that Plaintiff would reasonably be expected to use, contribute, or be
affected by the goods, Plaintiff would be entitled to the benefits of the warranty, irrespective of
the limitation in the warranty. Anything that enters into commerce may reasonably be expected
to be resold and used. Therefore, whether this warranty applies is a question for the jury at trial,
unless trial testimony makes it so clear that the issue may be determined as a matter of law.
Thompson argues that because Plaintiff admits he did not read the warranty until he
purchased the Subject Rifle from Glazier, the warranty was not the basis of the bargain, and
Plaintiff cannot assert a breach of warranty claim. But as the Maryland Court of Appeals noted,
this argument ignores “the circumstances surrounding most purchases in modern commercial
dealing,” where warranties are typically not disclosed prior to sale. 58 Comment 7 to Utah Code
Ann. § 70A-2-313, which provides the statutory basis for the creation of express warranties in
Utah, states that “[t]he precise time when words of description or affirmation are made or
samples are shown is not material. The sole question is whether the language or samples or
models are fairly to be regarded as part of the contract.” 59 Due to the nature of commercial

56

Id. at *7.

57

Id. at *8 (citation and internal quotation marks omitted).

58

See Rite Aid Corp. v. Levy-Gray, 391 Md. 608, 625 (Md. 2006).

59

Utah Code Ann. § 70A-2-313, Comment 7.

10

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dealings in the modern world, “courts are recognizing that later statements found in [written
warranties delivered after the contract is made] are part of the basis of the bargain.” 60 A jury
could find that the warranty in this case was part of the basis of the bargain. 61
Finally, Thompson argues in its reply that Plaintiff’s breach of express warranty claim is
duplicative of Plaintiff’s other claims. 62 While this argument may or may not have merit, it was
raised for the first time in a reply brief. Therefore, consideration of this argument is not
appropriate at this time. 63
The Motion to Preclude
Plaintiff designated Charles Powell to provide expert testimony on the cause of the
Subject Rifle explosion. Mr. Powell is a registered professional engineer who has extensive
experience in material failure analysis and has conducted numerous evaluations of firearm
explosions. Thompson moves to preclude his testimony on several grounds, arguing that he is not
qualified to opine on warnings, ballistics, and tool markings; 64 that his methods are not
reliable; 65 and that it would be prejudicial to allow him to testify to other firearm explosions. 66
The objected-to portions of Mr. Powell’s proposed testimony can be divided into four
topic areas. Those topics include:
1. Challenges to Mr. Powell’s qualifications to testify to the condition of the Subject
Bullet;

§ 2-313:70 Post sale statements—Post sale statements as a part of the “basis of the bargain”, 3 Anderson U.C.C. §
2-313:70 (3d. ed.)
60

61

As the case develops towards and into trial, this issue may be resolved as a matter of law before it goes to the jury.

62

Reply in Support of Defendant’s Motion for Summary Judgment at 8.

63

Rodriguez v. Cascade Collections LLC, 532 F. Supp. 3d 1099, 1119 (D. Utah 2021).

64

Motion to Preclude at 3-5.

65

Id. at 5-10.

66

Id. at 10-11.

11

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2. Challenges to Mr. Powell’s qualifications to testify to warnings;
3. A general reliability challenge to Mr. Powell’s methods in coming to his conclusions;
and
4. An objection to any testimony regarding other instances of Thompson-manufactured
firearms exploding.
Mr. Powell is qualified to provide testimony in the fields of metallurgic engineering and internal
ballistics. He is not qualified in the fields of external and terminal ballistics, tool markings, or
warnings. Accordingly, he will be permitted to testify to opinions which are based in his areas of
expertise, the specifics of which are described infra. Additionally, Mr. Powell’s methods are
sufficiently reliable. Finally, any mention of other firearm explosions which are not based on Mr.
Powell’s personal knowledge would be unduly prejudicial.
Standard for decision on expert witness testimony
Federal Rule of Evidence 702 provides that:
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. 67
A district court is the “gatekeeper” of expert testimony, charged with making the initial
determination as to whether an expert’s testimony is both reliable and relevant. 68 Because
the Federal Rules of Evidence favor the admissibility of expert testimony, preclusion of

67

Fed. R. Evid. 702.

68

Tudor v. Se. Oklahoma State Univ., 13 F.4th 1019, 1029 (10th Cir. 2021).

12

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experts “is the exception rather than the rule.” 69 A court sitting as a gatekeeper is not
meant to usurp the role played by the jury in weighing expert testimony. 70 “Vigorous
cross-examination [and] presentation of contrary evidence” is the most appropriate way
to attack “shaky but admissible evidence.” 71
Mr. Powell is qualified to testify on the Subject Bullet insofar as his testimony is based off
his expertise in internal ballistics, but not external and terminal ballistics
Thompson challenges the opinions Powell offers on the condition of the recovered
Subject Bullet. Specifically, Thompson argues that Powell is not qualified to offer testimony on
external ballistics (“the [behavior of the] bullet once it leaves the barrel”), 72 terminal ballistics
(“the performance of the bullet once it hits something”), 73 or firearm tool markings. Thompson
argues that Powell’s testimony regarding the Subject Bullet is based on these fields. Thompson
does not challenge Powell’s status as an expert in “internal ballistics,” which relates to the
behavior of a bullet while still inside the barrel of a rifle. 74 Mr. Powell has extensive experience
in forensic analysis of firearms. 75 Therefore, for the purpose of this order, it is assumed that Mr.
Powell is qualified to testify on the field of internal ballistics.

Mickelsen v. Aramark Sports & Ent. Servs., 536 F. Supp. 3d 1238, 1241 (D. Utah 2021) (quoting Fed. R. Evid.
702, Advisory Committee Notes).

69

70

United States v. Frazier, 387 F.3d 1244, 1272 (11th Cir. 2004).

71

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993).

72
Charles Powell’s Deposition 7/30/20, Exhibit F to Motion for Summary Judgment (“Powell Depo.”), docket no.
154-6, filed December 10, 2021, at 75:24-76:4.
73

Id.

74

See Motion to Preclude at 4.

75
Charles Powell’s SSEC Engineering Report dated December 3, 2019, Exhibit B to Motion to Preclude (“Powell
Report”), docket no. 154-2, filed December 10, 2021, at 3; Powell Depo. at 11:17-19.

13

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Mr. Powell offers the following expert analysis regarding the condition of the Subject
Bullet, after it was recovered from the tree where it was found embedded: 76 1) discussion of
“land and groove marks” on the Subject Bullet and further discussion of its trajectory while
inside the barrel of the Subject Rifle; 77 2) discussion of the expansion of the Subject Bullet while
inside the barrel of the subject rifle 78; 3) discussion of whether the Subject Bullet contacted a
ramrod or other object before it struck a tree, including a conclusion that the “recovered bullet
evidence shows that no barrel obstruction was present”; 79 and 4) discussion of “crush tests”
conducted to analyze the bullet’s impact with objects, including discussion of crush tests
conducted by experts for Thompson 80 and a crush test where Powell “compressed two exemplar
300 grain Harvester Scorpion PT Gold bullets into an oak block” 81 and compared the result with
the Subject Bullet.
Despite Mr. Powell’s experience and training in analyzing firearm explosions, 82 his CV
and publications contain no reference to external ballistics, terminal ballistics, or tool mark
analysis. 83 Mr. Powell has not described any special skills or training concerning ballistics or
tool marks. He testified at his deposition that he believed he had previously conducted tool mark
analysis for the Oklahoma State Bureau of Investigation, and had been qualified to give expert

Powell Report at 9-11; Charles Powell’s SSEC Supplemental Engineering Report dated March 18, 2020, Exhibit
C to Motion to Preclude (“Powell First Supplemental Report”), docket no. 154-3, filed December 10, 2021, at 5-7.
76

77

Powell Report at 9.

78

Powell First Supplemental Report at 6.

79

Powell Report at 11.

80

Powell First Supplemental Report at 5.

81

Id. at 5-6.

82

Powell Report at 3.

83

Id. at 18-23.

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testimony on the subject in the past. 84 But a belief concerning some indeterminate past
experience with ballistics does not alone qualify him as an expert. 85 Therefore, Mr. Powell’s
qualification to offer expert opinion on these matters is limited. The parameters of Mr. Powell’s
admissible expert testimony is discussed more thoroughly below.
Markings on the Subject Bullet
Thompson argues that Mr. Powell should be precluded from testifying about the
markings on the Subject Bullet, including the land and groove marks. This argument is based on
Mr. Powell’s lack of certification by the Association of Firearm and Tool Mark Examiners and
Mr. Powell’s purported lack of credentials or education as a “firearm/tool mark examiner.” 86 The
usual work of a firearm/tool mark examiner is to match a recovered bullet to a specific firearm. 87
First, a “lack of formal certification by a professional organization—although relevant to [Mr.
Powell’s] expertise—is not dispositive [because] Rule 702 ‘does not require any particular
imprimatur.’” 88 Second, Mr. Powell has extensive experience analyzing the cause of firearm
explosions, and Thompson has not challenged his expertise in this area or in internal ballistics. 89
Mr. Powell’s lack of training in the field of tool mark analysis should not prevent his testimony
insofar as the testimony is based on his unchallenged expertise in internal ballistics. Mr. Powell
may testify to the land and groove markings on the Subject Bullet which were caused before it
left the rifle barrel. He may also offer testimony on whether these markings reveal that the

84

Powell Depo. at 79:22-80:24.

85

See Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d 378, 391 n.7 (D. Md. 2001).

86

Motion to Preclude at 4-5; Reply in Support of the Motion to Preclude Plaintiff’s Expert Charles Powell at 3.

United States v. Shipp, 422 F. Supp. 3d 762, 770 (E.D.N.Y. 2019). It does not appear disputed that the Subject
Bullet came from the Subject Rifle.
87

United States v. Muro, 784 F. App'x 160, 162 (4th Cir. 2019) (quoting United States v. Gutierrez, 757 F.3d 785,
788 (8th Cir. 2014)).

88

89

See Powell Report at 3; Powell Depo. at 11:17-19.

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Subject Bullet expanded while inside the rifle. But Mr. Powell may not testify that he was able to
match the Subject Bullet to the Subject Rifle using tool mark analysis or regarding markings or
deformation caused after the Subject Bullet’s exit from the Subject Rifle’s barrel.
Analysis of Subject Bullet’s terminal impact.
Thompson also challenges Mr. Powell’s proposed testimony on the shape of and impacts
to the Subject Bullet caused by it striking objects. As part of his report, Mr. Powell opines about
the cause of the rifle explosion based on his analysis of the shape of the Subject Bullet and
exemplar bullets that had been fired into objects. 90 But Mr. Powell conceded during his
deposition that he is not an expert in the fields of external ballistics, which he defined as relating
to “the bullet once it leaves the barrel,” or an expert in the field of terminal ballistics, which he
defined as relating to “the performance of the bullet once it hits something”. 91 Because Mr.
Powell admits that he lacks expertise in analyzing the behavior of bullets upon hitting an object,
he is not qualified to opine on the effect on a bullet resulting from the bullet’s contact with an
object. Analysis of the condition of a bullet due to striking an object squarely implicates the field
of terminal ballistics. Therefore, Mr. Powell may not offer expert testimony on the condition of
the Subject Bullet, insofar as he is testifying to bullet deformity caused by the bullet striking an
object. This includes discussion of (1) crush tests, including the shape of bullets Mr. Powell fired
into oak blocks, (2) the appearance a bullet has after contacting a ramrod, (3) whether the
expansion of the Subject Bullet was caused by an impact with a tree, and (4) whether the shape
of the Subject Bullet reveals that it did or did not strike a barrel obstruction. Mr. Powell also may
not testify regarding bullet trajectory.

90

Powell First Supplemental Report at 5-6.

91

Powell Depo. at 75:24-76:4.

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Mr. Powell may, however, testify regarding the condition of the Subject Bullet, insofar as
that condition is based on his knowledge of and expertise in internal ballistics, such as the
Subject Bullet’s behavior while inside the barrel of the Subject Rifle. This includes the barrel
causing certain markings on a bullet, even after the bullet strikes an external object. Defendant is
incorrect that any discussion of the condition of the bullet is too closely linked to terminal
ballistics for Mr. Powell to offer expert testimony. But cross-examination on Mr. Powell’s
specific qualifications will be permitted at trial.
Mr. Powell’s general expertise in mechanical engineering and material failure analysis do
not qualify him to testify to opinions regarding external or terminal ballistics.
Plaintiff contends that Mr. Powell’s general expertise in mechanical engineering and
material failure analysis qualify him to testify to all conclusions in his report regarding the
Subject Bullet, including those after it exited the barrel of the Subject Rifle. Plaintiff argues that
Mr. Powell’s testimony is based on “general engineering principles rather than specific ballistic
principles.” 92 Mr. Powell is certainly well-qualified in the fields of mechanical and metallurgical
engineering. However, expertise in one area “does not ipso facto qualify [Mr. Powell] to testify
as an expert in all related areas.” 93 “Unless he is to testify only to general engineering principles
that any mechanical engineer would know, [an] engineer must possess ‘some special skill,
knowledge, or experience,’ concerning the particular issue before the court.” 94
Principles of ballistics are not “general engineering principles that any mechanical
engineer would know . . . .” 95 While Mr. Powell has expertise in general engineering principles

92

Plaintiff’s Opposition to Defendant’s Motion to Preclude Plaintiff’s Expert Charles Powell at 15.

93

Shreve, 166 F. Supp. 2d at 391 (D. Md. 2001).

94

Id. at 392 (citation omitted).

95

Id. at 392.

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and internal ballistics, that is not sufficient to allow him to testify to the related fields of external
ballistics, terminal ballistics, and firearm tool marks analysis.
Mr. Powell is not precluded from offering testimony at trial on 1) “land and groove
marks” on the Subject Bullet and further discussion of its trajectory while inside the barrel of the
Subject Rifle; 96 and 2) discussion of the expansion of the Subject Bullet while inside the barrel
of the subject rifle 97. Mr. Powell is precluded from offering testimony on 3) whether the Subject
Bullet contacted a ramrod or other object before it struck a tree, including a conclusion that the
“recovered bullet evidence shows that no barrel obstruction was present”; 98 and 4) “crush tests”
conducted to analyze the bullet’s impact with objects, including discussion of crush tests
conducted by experts for Thompson 99 and a crush test where Powell “compressed two exemplar
300 grain Harvester Scorpion PT Gold bullets into an oak block” 100 and compared the result with
the Subject Bullet.
Mr. Powell may not offer expert testimony on warnings
For an expert to be “qualified” under Federal Rule of Evidence 702, the expert must
possess some specialized “knowledge, skill, experience, training, or education” in the relevant
field. 101 Thompson argues that Mr. Powell is not qualified to offer expert opinions on warnings
under Rule 702. 102 Plaintiff does not contest that Mr. Powell is not qualified to testify regarding
warnings. Therefore, Mr. Powell will not be permitted to offer expert testimony on warnings.

96

Powell Report at 9.

97

Powell First Supplemental Report at 6.

98

Powell Report at 11.

99

Powell First Supplemental Report at 5.

100

Id. at 5-6.

101

Fed. R. Evid. 702.

102

Motion to Preclude at 3-5.

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Mr. Powell’s opinions are reliable because his conclusions were supported by objective
data and characterized by an appropriate degree of intellectual rigor
Thompson argues that Mr. Powell’s opinions must be excluded because they are
unreliable under Federal Rule of Evidence 702 and Daubert. 103 Mr. Powell’s opinions are
reliable, and therefore, the testimony for which he is qualified as an expert will not be excluded.
For a court to find that an expert’s methods are reliable, the proponent “must show that
the method employed by the expert in reaching the conclusion is scientifically sound and the
opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirement.” 104 In
assessing reliability, “a trial court’s focus generally should not be upon the precise conclusions
reached by the expert, but on the methodology employed in reaching those conclusions.” 105
The Supreme Court has identified as relevant certain factors a court may consider in
assessing the reliability of an expert’s methods: (1) whether a theory can or has been tested;
(2) whether the theory has been subject to peer review or publication; (3) whether there are
known or potential rates of error regarding specific techniques, and (4) whether the theory has
been generally accepted in the relevant scientific community. 106 The Tenth Circuit has “made
clear,” however, that these factors are “neither definitive nor exhaustive” in assessing
reliability. 107 Certain methods or theories are not susceptible to all or even any of these factors.
The key inquiry is not necessarily whether an expert’s methods can meet all the above factors,
but rather whether the link between the expert’s methods and conclusions is characterized by an

103

Motion to Preclude at 5-10.

Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (quoting Mitchell v. Gencorp Inc., 165 F.3d 778,
781 (10th Cir. 1999)).

104

105

Bitler, 400 F.3d at 1233.

106

See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-150 (1999).

107

Bitler, 400 F.3d at 1233.

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appropriate level of intellectual rigor. 108 The above factors may be relevant in assessing whether
that is the case, but they are certainly not the beginning and the end of a court’s gatekeeping
function. 109
A review of Mr. Powell’s report demonstrates his conclusions are based on scientifically
supported tests and objective data, and his methods are characterized by an appropriate degree of
intellectual rigor. Mr. Powell concluded that the causes of the Subject Rifle’s failure were the
characteristics of the 1137 metal, which contains manganese 110 sulfide inclusions, and the
notches cut into the rifle. Mr. Powell observed physical evidence—the remains of the Subject
Rifle and Subject Bullet—and made these conclusions based on his extensive experience and
technical knowledge of firearms and material failure analysis. 111 The Tenth Circuit has noted that
observation based on experience and technical knowledge, “although . . . not susceptible to
testing or peer review,” can be considered reliable if standard in a field. 112
More than just relying on his experience, however, Mr. Powell also conducted a
multitude of tests and examinations. Mr. Powell measured and photographed the Subject Bullet;
scanned the Subject Rifle and Subject Bullet with an electron microscope; observed the
propagation of the fracture; sampled the metal and analyzed its composition; measured the
thickness of the metal; calculated the yield pressure of the barrel based on generally accepted

108

Kumho, 526 U.S. at 152.

While footnote five of Thompsons Motion to Preclude also argues that Mr. Powell's testimony on the Subject
Bullet is unreliable because it is “not based on any authoritative source, testing, or data,” little argument was made
and little discussion is needed in light of the previous analysis on Mr. Powell’s qualification and the discussion of
Bitler v. A.O. Smith Corp below. Mr. Powell’s detailed examinations of the Subject Bullet and experience in the
field are sufficient for a finding of reliability.
109

Both parties reference the inclusions as consisting of “magnesium sulfide.” A careful review of Mr. Powell’s
reports and deposition clarify the inclusions are in fact “manganese sulfide.” See Powell Report at 5; Powell Depo at
164:17-24.
110

111

Powell Depo. at 22:10-20; 23:6-12.

112

Bitler, 400 F.3d at 1235.

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mathematical equations; and measured the pressure exerted when exemplar rifles were fired. 113
Thompson does not contend that any of these tests or methods are unreliable or are not standard
in the field of material failure analysis. And Mr. Powell stated that he conducted these tests and
methods in accordance with applicable standards. 114 On this record, and under the circumstances,
sufficient indica of reliability are present such that Mr. Powell’s methods appear “scientifically
sound.”
Thompson argues that because Mr. Powell “had no objective validation for his opinion”
and his conclusions were not testable or falsifiable, his opinions should be excluded. 115 This
argument is not persuasive.
First, Mr. Powell did have objective validation for his opinions. As noted previously, Mr.
Powell conducted extensive tests, including scanning the rifle with an electron microscope to
observe crack propagation and comparing the yield strength of the metal to the force exerted
when the rifle was fired. 116 These tests were well documented, and attack on them is best suited
for cross-examination.
Thompson suggests that because Mr. Powell was not able to create a rifle explosion
through acts of normal firing, his own testing contradicts his theory. 117 But this mischaracterizes
Mr. Powell’s theory. Mr. Powell is not opining that the 1137 steel will cause a rifle to explode
every time it is fired, or that even every rifle made with that steel will eventually explode.

113

Powell Report at 5-9, 12-16.

114
Powell Depo. at 24:10-25:6, 135:3-6. Thompson argues that Mr. Powell could not cite the correct American
Society for Testing and Materials standards, but that argument goes to the weight, not the admissibility, of his
testimony.
115

Motion to Preclude at 6-7.

116

Powell Report at 5-7.

117

Motion to Preclude at 9-10.

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Instead, Mr. Powell is opining that the nature of 1137 steel will cause a rifle made with that steel
to have an increased risk of cracking. For a rifle to fail under Mr. Powell’s theory, several factors
need to be present: “you have to have a certain number of brittle inclusions, you have to have
them in a certain critical area, and you have to have [a number of] loads fired.” 118 As counsel for
Thompson noted in Mr. Powell’s deposition, Powell is not suggesting “that every 1137
muzzleloader barrel is going to fail[.]” 119 Reproduction of an accident is not a requirement for an
expert to opine on the cause of the accident; not every accident is susceptible to easy
reproduction. 120 Therefore, Mr. Powell’s testing does not contradict his theory.
Second, even if Mr. Powell had not physically tested his theory, that would not
necessarily be dispositive of the gatekeeping inquiry. On the contrary, the Tenth Circuit held in
Bitler v. A.O. Smith Corp that “testing is not necessary in all instances to establish reliability
under Daubert,” and failure to test does not preclude a finding of reliability. 121 Regardless, Mr.
Powell did test this theory, by measuring the force exerted by the firing of exemplars, and
concluded that the pressure exerted by firing the Subject Rifle could exceed the strength of the
metal and initiate cracking. 122 And Mr. Powell observed a possible crack in an exemplar rifle
after firing. 123
This is not a situation where an expert’s conclusions are supported only by his own ipse
dixit. In reaching his conclusions, Mr. Powell conducted numerous tests and analysis, which

Charles Powell’s Deposition (Volume II) 9/30/21, Exhibit G to Motion for Summary Judgment (“Powell Depo.
Vol. II”), docket no. 154-7, filed December 10, 2021, at 299:13-17.
118

119

Id. at 299:6-10.

120

See Navelski v. Int'l Paper Co., 244 F. Supp. 3d 1275, 1290-91 (N.D. Fla. 2017).

121

Bitler, 400 F.3d at 1236.

122

Powell Depo. at 109:20-24.

123

Powell Report at 40.

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followed applicable standards and were based on his experience in the field. Thompson’s
arguments primarily do not attack the “core science” 124 undergirding Mr. Powell’s methods.
Rather, Thompson takes issue with the conclusions Mr. Powell draws: that the relative weakness
of the steel was the cause of the rifle explosion. Mr. Powell has adequately drawn a link between
the methods he employed and the conclusions he reached. An attack on those conclusions is best
left for cross-examination or counter-expert testimony at trial. “[D]isagreements with the expert's
conclusions go not to admissibility but to the weight and credibility of the evidence—questions
for the jury to decide.” 125
Therefore, Mr. Powell’s methods underpinning his conclusions on the material failure of
the Subject Rifle are reliable for purposes of Rule 702.
Mr. Powell may not testify to other lawsuits involving this particular type of firearm
exploding
In a supplemental report, Mr. Powell lists other claims against Thompson involving
ruptured 1137 steel barrels, and states those incidents are substantially similar. 126 However, Mr.
Powell admitted during his deposition that he has no personal knowledge of the vast majority of
incidents, and is unaware if they were caused by misuse. 127 Thompson argues that Mr. Powell
should not be permitted to testify to these other claims. Plaintiff does not contest this, but instead
suggests that if Mr. Powell is precluded from testifying that there were other incidents involving

124

Bitler, 400 F.3d at 1236.

United States v. Hoyt, No. 2:14CR00001, 2014 WL 5023093, at *2 (W.D. Va. Oct. 8, 2014) (citing United States
v. Nichols, 169 F.3d 1255, 1263 (10th Cir.1999)).

125

126

Powell First Supplemental Report at 2-3.

127

See Powell Depo. at 139:17-154:16.

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1137 steel rifles exploding, Thompson cannot argue to the jury that there were no other similar
incidents. 128
Federal Rule of Evidence 403 allows a court to exclude evidence if the probative value of
that evidence is substantially outweighed by the danger of unfair prejudice or confusing the
jury. 129 Here, any probative value of Mr. Powell’s testimony concerning other incidents is low
because he has no direct knowledge of any of the causes of barrel failures in other incidents. For
example, all other failures could have been caused by improper loading of ammunition.
Comparatively, the prejudicial effect of such evidence, and the danger of a jury giving that
evidence undue weight, is high. Therefore, Mr. Powell may not testify regarding other lawsuits
where there are allegations of this type of firearm exploding, unless he has personal knowledge
of the incidents.
Plaintiff’s argument that Thompson should also be precluded from arguing to the jury
that there are no other incidents of 1137 steel rifle barrels exploding is well-founded. If
Thompson successfully elicits testimony at trial that there were no other incidents of 1137 steel
barrels exploding, the door is opened, and Plaintiff might then refer to other instances of this type
of gun exploding, including other lawsuits. However, such an attempt by Thompson could be
objectionable under Fed. R. Evid. 403.
CONCLUSION AND ORDER
For the foregoing reasons, IT IS HEREBY ORDERED:
1. Thompson’s Motion for Summary Judgment is GRANTED on Plaintiff’s claims for
a. Failure to warn;

128

Plaintiff’s Opposition to Defendant’s Motion to Preclude Plaintiff’s Expert Charles Powell at 16.

129

Fed. R. Evidence 403.

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b. Manufacturing defect;
c. Breach of implied warranty for a particular purpose; and
d. Punitive damages.
These claims are dismissed with prejudice.
2. Thompson’s Motion for Summary Judgment is DENIED on all other claims, including:
Cause of Action 1: Strict liability design defect;
Cause of Action 2: Negligent design defect;
Cause of Action 3: Breach of express warranties; and
Cause of Action 4: Breach of implied warranty of merchantability.
3. Thompson’s Motion to Preclude is GRANTED IN PART and DENIED IN PART.
a.

Mr. Powell may testify regarding the failure of the Subject Rifle based on his

analysis of the barrel. He may also provide expert testimony on the Subject Bullet,
insofar as his testimony is limited to the field of internal ballistics. This includes: 1)
discussion of “land and groove marks” on the Subject Bullet and the Subject Bullet’s
trajectory while inside the barrel of the Subject Rifle; and 2) discussion of the expansion
of the Subject Bullet while inside the barrel of the subject rifle.
b.

Mr. Powell is precluded from offering expert testimony based on external

ballistics, terminal ballistics, and tool mark analysis, including 3) discussion of whether
the Subject Bullet contacted a ramrod or other object before it struck a tree, and other
discussion concerning objects the Subject Bullet may have struck besides the tree, and 4)
discussion of “crush tests”.
c.

Also, Mr. Powell may not testify to other incidents involving muzzle-loading

rifles exploding where he does not have personal knowledge of such incidents.

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Dated May 2, 2022.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

26