Stratton v. Thompson/Center Arms et al
Filing
199
MEMORANDUM DECISION AND ORDER granting in part and denying in part 147 Motion in Limine; granting 150 Motion in Limine; granting in part and denying in part 148 Motion in Limine; denying 146 Motion in Limine; denying 145 Motion to Preclude Testimony of Ravi Chandran. Signed by Judge David Nuffer on 6/13/22 (alt)
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THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ZANE STRATTON,
Plaintiff,
v.
THOMPSON/CENTER ARMS, INC.,
Defendant.
MEMORANDUM DECISION
AND ORDER ON MOTIONS IN LIMINE
[145], [146], [147], [148], and [150]
Case No. 4:18-cv-00040-DN-PK
District Judge David Nuffer
Magistrate Judge Paul Kohler
This order deals with a series of motions regarding experts, filed by each party.
Plaintiff Zane Stratton has filed four motions to exclude expert testimony in this action.
Specifically, Mr. Stratton moves to preclude testimony from:
•
Dr. Sam Fadala, who is offered as an expert in use, operation, and design of
muzzleloading rifles; 1
•
Mr. Marlin Jiranek, who is offered as an expert in metallurgy, firearm design, and
material failure analysis; 2 and
•
Mr. Lance Martini, who is offered an expert in firearms failure and toolmark
evidence. 3
Plaintiff’s Motion in Limine to Exclude the Testimony of Sam Fadala (“Motion to Preclude Fadala”), docket no.
147, filed December 10, 2021.
1
Plaintiff’s Motion in Limine to Limit the Testimony of Defense Expert Marlin Jiranek (“Motion to Limit
Testimony of Jiranek”), docket no. 150, filed December 10, 2021.
2
3
Plaintiff’s Motion in Limine to Exclude Lance T. Martini as an Expert Witness (“Motion to Preclude Martini”),
docket no. 148, filed December 10, 2021.
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Mr. Stratton has also filed a motion to exclude cumulative expert testimony. 4
Defendant Thompson has opposed the Motion to Preclude Fadala, 5 the Motion to Limit
Testimony of Jiranek, 6 the Motion to Preclude Martini, 7 and the Motion to Exclude Cumulative
Expert Testimony. 8 Plaintiff has filed replies in support of the Motion to Preclude Fadala, 9 the
Motion to Preclude Jiranek, 10 the Motion to Preclude Martini, 11 and the Motion to Exclude
Cumulative Expert Testimony. 12
Thompson’s Motion to Exclude Chandran: Thompson has also filed a motion to
preclude testimony from Dr. Ravi Chandran, an expert for whom Mr. Stratton never provided an
expert report. 13 Mr. Stratton does not oppose the Motion to Preclude Chandran. 14
For the following reasons, Plaintiff’s Motion to Preclude Fadala is GRANTED IN PART
and DENIED IN PART; Plaintiff’s Motion to Limit Testimony of Jiranek is GRANTED;
Plaintiff’s Motion in Limine to Limit Cumulative Expert Testimony (“Motion to Exclude Cumulative Expert
Testimony”), docket no. 146, filed December 10, 2021.
4
Opposition to Plaintiff’s Motion in Limine to Preclude the Testimony of Defense Expert Sam Fadala (“Opposition
to Motion to Preclude Fadala”), docket no. 171, filed January 26, 2022.
5
Opposition to Plaintiff’s Motion in Limine to Limit the Testimony of Defense Expert Marlin Jiranek (“Opposition
to Motion to Limit Testimony of Jiranek”), docket no. 169, filed January 26, 2022.
6
Opposition to Plaintiff’s Motion in Limine to Exclude Lance T. Martini as an Expert Witness (“Opposition to
Motion to Preclude Martini”), docket no. 170, filed January 26, 2022.
7
Opposition to Plaintiff’s Motion in Limine to Limit Cumulative Expert Testimony (“Opposition to Motion to
Exclude Cumulative Expert Testimony”), docket no. 172, filed January 26, 2022.
8
Reply Memorandum in Support of Plaintiff’s Motion in Limine to Limit the Testimony of Defense Expert Sam
Fadala (“Reply in Support of Motion to Preclude Fadala”), docket no. 178, filed February 8, 2022.
9
Reply Memorandum in Support of Plaintiff’s Motion in Limine to Limit the Testimony of Defense Expert Marlin
Jiranek (“Reply in Support of Motion to Limit Testimony of Jiranek”), docket no. 177, filed February 8, 2022.
10
Plaintiff’s Reply Memorandum in Support of Motion in Limine to Exclude Lance T. Martini as an Expert Witness
(“Reply in Support of Motion to Preclude Martini”), docket no. 175, filed February 7, 2022.
11
Reply Memorandum in Support of Plaintiff’s Motion in Limine to Limit Cumulative Expert Testimony (“Reply in
Support of Motion to Exclude Cumulative Expert Testimony”), docket no. 179, filed February 8, 2022.
12
Motion to Preclude Testimony of Ravi Chandran or Relying on Work Done by or Communications with Dr.
Chandran (“Motion to Preclude Chandran”), docket no. 145, filed December 10, 2021.
13
Plaintiff’s Non-Opposition to Defendant’s Motion to Preclude Testimony of Ravi Chandran or Relying on Work
Done by or Communications with Dr. Chandran (“Response to Motion to Preclude Chandran”), docket no. 185,
filed February 16, 2022.
14
2
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Plaintiff’s Motion to Preclude Martini is GRANTED IN PART and DENIED IN PART; and
Plaintiff’s Motion to Exclude Cumulative Expert Testimony is DENIED. Additionally,
Defendant’s Motion to Preclude Dr. Chandran is GRANTED.
Contents
Background ..................................................................................................................................... 3
Discussion ....................................................................................................................................... 3
Dr. Fadala may not offer causation opinions ...................................................................... 5
Dr. Fadala’s methods are not reliable ..................................................................... 5
There is too large a gap between Dr. Fadala’s methods and the conclusions he
makes .......................................................................................................... 7
Mr. Jiranek may not provide expert testimony based on methods that Dr. Block did not
use. .......................................................................................................................... 9
Mr. Martini may testify about the characteristics of the subject bullet, but not about the
cause of the explosion ........................................................................................... 11
Mr. Martini’s Causation Opinions ........................................................................ 11
Mr. Martini’s Subject Bullet Opinions ................................................................. 14
Plaintiff’s Motion to Exclude Cumulative Testimony is Denied ..................................... 14
Defendant’s Motion to Exclude Dr. Chandran is granted................................................. 15
Conclusion and Order ................................................................................................................... 16
BACKGROUND
This action arises out of injuries Mr. Stratton suffered as a result of a muzzleloading rifle
explosion in Cedar City, Utah. When Mr. Stratton fired the rifle (the “Subject Rifle”), it
exploded, causing serious damage to his hand. Both the Subject Rifle and the bullet that was in
the rifle when it was fired (the “Subject Bullet”) were later recovered. Thompson has disclosed
several witnesses as experts to testify on the rifle failure, including Dr. Fadala, Mr. Jiranek, and
Mr. Martini. Mr. Stratton has filed motions to preclude or limit the expert testimony of a number
of these witnesses.
DISCUSSION
Pursuant to Federal Rules of Evidence 702, which provides the standard for admission of
expert testimony:
3
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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. 15
The proponent of the expert testimony bears the burden of establishing that the offered expert
meets the standards required by Rule 702. 16
Rule 702 requires an expert’s opinion to not only be reliable, but also relevant. 17
Reliability requires a determination that “the reasoning or methodology underlying the testimony
is scientifically valid”, and that the reasoning or methodology is characterized by an appropriate
degree of intellectual rigor. 18 Opinions which are connected to the case only by the ipse dixit of
the expert do not pass muster under Rule 702. 19 Furthermore, there must be a “fit” between the
expert testimony and the proposed expert conclusions; even if an expert’s testimony is reliable, it
must be relevant and applicable to the subject matter at hand. 20 The Tenth Circuit has illustrated
this principle by explaining “[t]estimony concerning the laws of quantum mechanics may be
scientifically relevant, but may have no practical relevance to testimony concerning the function
and possible failure of a water heater safety valve control.” 21
15
Fed. R. Evid. 702.
16
SFF-TIR, LLC v. Stephenson, 250 F. Supp. 3d 856, 1001 (N.D. Okla. 2017).
17
Norris v. Baxter Healthcare Corp., 397 F.3d 878, 883 (10th Cir. 2005).
18
Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (citations omitted).
19
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999).
20
Bitler, 400 F.3d at 1234.
21
Id.
4
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Dr. Fadala may not offer causation opinions
Dr. Fadala was offered by Thompson as an expert in muzzleloading rifle use, design, and
operation. 22 Parts of Dr. Fadala’s proposed testimony involves opinions on the cause of the rifle
explosion. Mr. Stratton objects to those opinions, arguing that Dr. Fadala is not qualified to opine
on the cause of the firearm explosion; his methods are flawed; and his opinions on the subject
should be excluded. 23 Because Dr. Fadala’s methods regarding the rifle’s explosions are neither
reliable nor relevant, he will be precluded from testimony on the subject.
Dr. Fadala opines that the Subject Rifle failed due to a “short start”, which occurs when
empty space is left between powder and projectile in a muzzleloading rifle, causing the entirety
of the powder to ignite at once. 24 Dr. Fadala bases his conclusion on the presence of a visual
signature in the remains of the Subject Rifle: a combination of the forepart of the barrel
remaining intact, 25 a large debris field, 26 and some type of bulge deformity being present in the
rifle barrel. 27 No further specific information about this visual signature is given; rather, Dr.
Fadala states that he “know[s] what a short start looks like.” 28
Dr. Fadala’s methods are not reliable
While Dr. Fadala has tremendous experience with muzzleloading rifles, he has not
established that the “visual signature” is a reliable way of determining the cause of a rifle
22
Defendant’s Updated Disclosure of Expert Testimony, docket no. 131, filed May 5, 2021, at 3.
23
Motion to Preclude Fadala at 2.
24
Dr. Sam Fadala Report (“Fadala Report”), Exhibit D to Motion to Preclude Fadala, docket no. 147-4, filed
December 10, 2021, at 9; Excerpt from Sam Fadala’s Muzzleloading Notebook, Exhibit D to Opposition to Motion
to Preclude Fadala, docket no. 171-2, filed January 26, 2022, at 48. All page numbers of expert reports refer to the
pages of the report itself, not the docketed document.
Deposition of Sam Fadala dated September 18, 2021 (“Fadala Depo.”), Exhibit C to Motion to Preclude Fadala,
docket no. 147-3, filed December 10, 2021, at 59:12-60:14; Fadala Report at 13-14.
25
26
Fadala Report at 15.
27
Fadala Report at 11-14; Opposition to Motion to Preclude Fadala at 5.
28
Fadala Depo. at 59:23- 60:14.
5
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explosion. Dr. Fadala points to no peer reviewed studies or other forms of objective validation to
demonstrate that this signature is a reliable way of identifying the cause of a gun explosion. 29 It
is unclear if this signature can appear in the absence of a short start, if the presence of this
signature always indicates a short start, or if a short start can occur without leaving this signature
—in other words, the error rate is completely unknown. Indeed, Dr. Fadala states in a handbook
he published that he has “seen barrels withstand several short started loads,” but also has seen
“barrels exploding into fragments with short started loads.” 30 And the signature itself is not
described in sufficient detail for its presence or absence to be reasonably challenged by Mr.
Stratton. Dr. Fadala appears to primarily base his conclusion on “know[ing] what a short start
looks like.” 31 Dr. Fadala’s analysis is thus “a subjective, conclusory approach that cannot
reasonably be assessed for reliability,” and accordingly does not meet the standards of Rule
702. 32
Dr. Fadala claims support for his conclusions from tests he conducted where he blew up
“hundreds of muzzleload[ing rifles]” and observed the results. 33 These tests are opaque to say the
least. Dr. Fadala has not detailed the amount or type of gunpowder used in each test, the type of
metal of the rifles, how specifically he created the short start, whether he used any type of
controls, or indeed most of the factors a different expert would need to reconstruct or evaluate
the tests. Dr. Fadala has also not disclosed any data from the tests, photographs or measurements
The evidence Thompson references to support this assertion is Dr. Fadala’s own book, which does not appear to
be peer-reviewed. Excerpt from Sam Fadala’s Muzzleloading Notebook, Exhibit D to Opposition to Motion to
Preclude Fadala, at 47.
29
30
Excerpt from Sam Fadala’s Muzzleloading Notebook, Exhibit D to Opposition to Motion to Preclude Fadala, at
48.
31
Fadala Depo. at 59:23-60:14.
32
Federal Rules of Evidence 702, Advisory Notes.
33
Fadala Report at 3.
6
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of the tests, or the individual results of the tests. In these circumstances, Dr. Fadala’s conclusions
are nothing more than ipse dixit. 34 Therefore, Dr. Fadala has not met his burden of demonstrating
that his methods are reliable.
There is too large a gap between Dr. Fadala’s methods and the conclusions he
makes
Even if Dr. Fadala’s testing methods had been reliable, there is not a “fit” between the
methods he used and the conclusion he draws in this case. 35 The tests that Dr. Fadala conducted
involved different guns and different circumstances than the gun and circumstances at issue
here. 36 Not only did Dr. Fadala never conduct tests on an exemplar rifle, he has never tested any
rifle manufactured by Thompson. 37 Dr. Fadala has also never conducted tests using the same
type of powder that Mr. Stratton used or the same type of bullet as the Subject Bullet. 38 Nor is it
clear if he has ever tested a rifle made with the same type or thickness of steel as the one at
question here. In fact, Dr. Fadala has disclosed little information about the tests he conducted
besides the rather cursory description that he has “personally tested hundreds of muzzleloaders to
destruction, including using double projectiles, double loads, triple loads, quadruple loads,
duplex loads, smokeless powder loads in black powder only firearms, pistol powder, short starts,
and many combinations of this list.” 39 In light of this lack of information, it is difficult to
evaluate the extent to which the conclusions he draws from those tests are relevant here.
34
See Wendler & Ezra, P.C. v. Am. Int'l Grp., Inc., 521 F.3d 790, 791 (7th Cir. 2008).
35
See Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1204 (10th Cir. 2002).
36
Fadala Depo. at 52:19-22.
37
Id. at 41:1-7.
38
Id. at 55:18-56:12.
39
Fadala Report at 3.
7
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These omissions would certainly not be fatal to Dr. Fadala’s testimony if he established
that the tests he conducted are applicable to these circumstances. For example, if Dr. Fadala
opined that all guns which exploded due to a short start had the same signature, regardless of
their maker, caliber, type of powder used, metal composition, metal thickness, and other
characteristics, that would allow the results of his tests to be extrapolated to this case. In other
words, Dr. Fadala needs to show that the tests he conducted are relevant here by linking his tests
to his conclusions in this case.
But Dr. Fadala has provided no such opinions, and has not adequately linked the tests he
has conducted to the conclusions he made or to the events at issue in this case. There is no way
to conclude that the tests Dr. Fadala has conducted are relevant to the situation at hand.
Therefore, his testimony fails the “fit” requirement of Daubert. 40
Dr. Fadala also opines that the presence of Mr. Stratton’s brother “may have distracted
his attention from the vital practice of fully seating the projectile firmly on the powder charge
and ensuring that there are no obstructions in the barrel.” 41 This opinion is speculative and is not
based on any reliable methods that Dr. Fadala was able to describe. Dr. Fadala may not testify to
this at trial.
Dr. Fadala will be permitted to testify to the use, operation, and design of muzzleloading
rifles. However, he has not demonstrated that his conclusions on the Subject Rifle’s explosion
were based on reliable methods, or that his methods have produced testimony which satisfies the
fit prong of Rule 702. Accordingly, he will be precluded from testimony on the cause and
mechanism of the Subject Rifle’s failure.
40
United States v. W.R. Grace, 455 F. Supp. 2d 1177, 1180 (D. Mont. 2006).
41
Fadala Report at 13-14.
8
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Mr. Jiranek may not provide expert testimony based on methods that Dr. Block did not
use.
Mr. Marlin Jiranek was offered by Thompson as an expert in metallurgy, firearm design,
and material failure analysis. 42 Mr. Jiranek was offered as a substitute expert for Dr. Robert
Block, who passed away during this litigation. Mr. Stratton moves to limit Mr. Jiranek’s
testimony concerning Finite Element Analysis (FEA), a type of computer modeling. 43 Mr.
Stratton argues that because FEA is a method of expert analysis that Dr. Block did not use, and
because substitute expert witnesses are limited to the subject matter and methods of the expert
they are replacing, Mr. Jiranek cannot testify based on FEA. 44 Thompson argues that Mr. Jiranek
is entitled to perform his own work, including using new methods, so long as his theories and
conclusions match Dr. Block’s. 45 Mr. Stratton is correct.
When determining if substitute expert testimony is admissible, courts typically look at the
prejudice to the nonmoving party, pursuant to Federal Rules of Civil Procedure 26. 46 Substitute
experts, while not bound to the testimony of the expert they are replacing, cannot meaningfully
change their testimony from that of the previous expert. In other words, the testimony of the
substitute expert must be “substantially similar” to that of the original expert. 47 The purpose of a
substitute expert’s testimony should be to put a party in as good as a position as they were prior
to the loss of the original expert, not to designate a superior expert. 48 As a matter of fairness, the
42
Defendant’s Updated Disclosure of Expert Testimony at 2.
43
Motion to Limit Testimony of Jiranek at 2.
44
Id.
45
Opposition to Motion to Limit Testimony of Jiranek at 4-5.
46
Al-Baaj v. Bennett, No. 118CV00618DDDSTV, 2021 WL 6339611, at *1 (D. Colo. Sept. 24, 2021).
47
Shipp v. Arnold, No. 4:18-CV-4017, 2019 WL 4040597, at *3 (W.D. Ark. Aug. 27, 2019).
48
Noffsinger v. Valspar Corp., No. 09 C 916, 2013 WL 12340488, at *6 (N.D. Ill. Jan. 4, 2013).
9
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death of a party’s expert “should not be a windfall for [that party].” 49 If a replacement expert
uses new methods that the original expert did not use, testimony arising from those methods are
typically precluded. 50
Mr. Jiranek was designated as a substitute expert for Dr. Block. His report was not
submitted until after the original deadlines for expert discovery, so the scheduling order was
extended for the express purpose of allowing a “replacement expert” for Dr. Block. 51 Dr. Block
did not conduct any type of computer modeling in his analysis of the rifle failure, let alone
FEA. 52 Mr. Jiranek’s proposed testimony on FEA goes far beyond the scope of Dr. Block’s
testimony. Permitting testimony on FEA would allow Thompson to benefit from the passing of
their expert by designating a “superior expert” with additional methods and means of analysis. 53
Thompson argues that although Mr. Jiranek was designated as a substitute expert, he is
still entitled to express his opinions in his own language, including running his own tests. It is
true that Mr. Jiranek is not required to regurgitate verbatim the proposed testimony of Dr. Block,
and a “party is not meaningfully prejudiced by an opinion that merely departs from the general
scheme [of the original expert] or only expands the scope.” 54 But that does not allow a
replacement expert to use entirely new methods which the original expert did not. Allowing that
would frustrate the rationale behind allowing a replacement expert and provide a windfall to
Thompson.
49
Baumann v. Am. Fam. Mut. Ins. Co., 278 F.R.D. 614, 616 (D. Colo. 2012).
Lincoln Nat. Life Ins. Co. v. Transamerica Fin. Life Ins. Co., No. 1:04-CV-396, 2010 WL 3892860, at *3 (N.D.
Ind. Sept. 30, 2010).
50
51
Stipulated Motion to Amend Scheduling Order, docket no. 129, filed March 26, 2021.
See Report of Findings of Dr. Robert Block, Exhibit C to Motion to Limit Testimony of Jiranek, docket no. 150-3,
filed December 10, 2021.
52
53
Noffsinger, 2013 WL 12340488, at *6.
54
Al-Baaj, 2021 WL 6339611, at *1.
10
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Therefore, the Motion to Preclude Jiranek will be granted, and Mr. Jiranek’s testimony
will be limited to exclude FEA and opinions based on FEA.
Mr. Martini may testify about the characteristics of the subject bullet,
but not about the cause of the explosion
Mr. Lance Martini is offered by Thompson as an expert in toolmark evidence and firearm
failure. 55 He intends to offer testimony about “[t]he examination and evaluation of the subject
bullet, the tree section which is reported to have been the impact surface of the subject bullet, as
well as the internal, exterior, and terminal ballistics related to this incident.” 56 Mr. Martini’s
report primarily analyzed the shape of and markings on the Subject Bullet, and made conclusions
about the bullet’s behavior based on that shape and those markings. Mr. Stratton challenges Mr.
Martini’s qualifications to testify to the cause of the explosion. Mr. Stratton also challenges the
reliability of
1. Mr. Martini’s opinions on the cause of the Subject Rifle explosion, and
2. the portions of his report which discussed the cause of the Subject Rifle’s barrel
failure, including his conclusion that a defect in the barrel metal could be excluded as
the sole cause of the barrel failure.
Because Mr. Martini is not qualified to opine on causation, his opinions on the cause of
the barrel failure will be excluded.
Mr. Martini’s Causation Opinions
Mr. Martini makes several conclusions that go outside his area of expertise. Specifically,
Mr. Martini concludes that
55
Defendant’s Updated Disclosure of Expert Testimony at 2.
56
Deposition of Lance T. Martini dated June 29, 2021 (“Martini Depo.”), Exhibit C to Motion to Preclude Martini,
Docket no. 148-3, filed December 10, 2021, at 15:6-17.
11
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1. A metal defect can be excluded as the sole cause of the Subject Rifle’s failure 57; and
2. The failure was caused by a dramatic increase in pressure within the barrel from a
barrel obstruction. 58
Mr. Martini is not qualified to give these causation opinions, and to the extent he may be
qualified to opine generally on firearms failure, he has not shown the methods he used to reach
these conclusions are reliable. As Mr. Martini readily admitted during his deposition, he is not
qualified to opine if the metal of the barrel was defective; 59 what capacity it had to withstand
pressure; 60 the force an explosion (with or without a barrel obstruction) would have exerted on
the gun barrel; 61 or how the metal fracture propagated. 62 The offered causation opinions
necessarily require some type of expertise in metallurgy, material engineering, or material
science, which Mr. Martini does not have. 63
Even if Mr. Martini’s stated expertise in “firearms failure analysis” qualified him to
testify as to the cause of the failure, Mr. Martini does not explain how he knows that the pressure
exerted by a barrel obstruction was enough for the rifle barrel to fail, or how he was able to
determine that was the cause. When asked during his deposition as to how he knew that the bore
obstruction caused the barrel to explode, he responded initially “[m]y conclusions are based on
physical evidence aspects and observations which are based on the scientific analysis of the
Report Of Thompson-Center Omega Black Powder Rifle Failure (“Martini Report”), Exhibit E to Motion to
Preclude Martini, docket no. 148-5, filed December 10, 2021, at 7.
57
58
Id.
59
Martini Depo. at 14:2-12.
60
Id. at 134:23-25.
61
Id. at 134:11-22.
62
Id. at 14:20-15:5.
63
Id. at 11:3-13:8.
12
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physical evidence,” 64 and later testified that “[w]hat I see in terms of physical evidence as relates
to this case is consistent with my conclusions.” 65 When asked to specify, he instead repeatedly
deferred to Thompson’s other experts. 66 These general and vague descriptions do not
demonstrate that his methods were reliable or sufficient. While Mr. Martini may incorporate
other expert’s work into his analysis, he may not serve as a mouthpiece for another expert. 67
Because of his lack of qualifications and the failure to explain his methods outside of relying on
Thompson’s other experts, Mr. Martini’s causation opinions do not meet the standards Rule 702
requires.
Thompson argues that Mr. Martini is not excluding that a metal defect was a cause of the
explosion, but rather that the defect was the sole cause of the explosion. But this is a distinction
without a difference. Mr. Martini is still offering an opinion about the cause of the gun barrel
failure. Even if he were to opine that the gun barrel failed in part due to a bore obstruction, that
conclusion implicitly involves a conclusion about the strength of the metal and the extent to
which a metal defect played a role in its failure. Mr. Martini cannot opine to the cause of the gun
barrel failure without also offering opinions on metal failure, the internal pressure capacity of the
gun barrel, and whether a bore obstruction could have created an increase in pressure which
exceeded that capacity. Accordingly, Mr. Martini may not offer causation opinions on the
Subject Rifle’s failure.
64
Id. at 95:19-97:1.
65
Id. at 135:13-136:4.
66
Martini Depo. at 97:20-99:23, 134:19-135:1.
67
Thorne Rsch., Inc. v. Atl. Pro-Nutrients, Inc., No. 2:13-CV-784 TS, 2017 WL 396643, at *2 (D. Utah Jan. 30,
2017); Ash Grove Cement Co. v. Emps. Ins. of Wausau, 246 F.R.D. 656, 661 (D. Kan. 2007).
13
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Mr. Martini’s Subject Bullet Opinions
To the extent Mr. Martini’s opinions on the bullet shape are objected to, those objections
are overruled. As Mr. Stratton admit in his Reply, Mr. Martini “is a qualified forensic scientist
who can provide opinions on the shape of the bullet, markings, and its characteristics.” 68
Testimony concerning the shape of and markings on the bullet, and the cause of those markings,
is well within Mr. Martini’s area of expertise. Mr. Martini has adequately laid out his methods,
procedures, and data regarding the analysis of the Subject Bullet. Mr. Martini may testify to the
shape of and markings on the Subject Bullet. He may also testify to the cause of those markings,
including his conclusion that the Subject Bullet deformity is consistent with a deformity caused
by a bore obstruction. There is no indication, and Mr. Stratton has not suggested, that Mr.
Martini’s reliance on the work of Dr. Block 69 and Mr. Jiranek is not typical of experts in the
field. 70
Therefore, the Motion to Preclude Martini is GRANTED IN PART and DENIED IN
PART.
Plaintiff’s Motion to Exclude Cumulative Testimony is Denied
Mr. Stratton moves to exclude cumulative testimony of Dr. Fadala, Mr. Jiranek, and Mr.
Martini under Federal Rule of Evidence 403, arguing that all three experts offer overlapping
opinions on the cause of the Subject Rifle explosion. As a result of the rulings in this order,
however, it appears that all three witnesses will testify in different areas: Dr. Fadala will testify
to the proper use and maintenance of a muzzleloading rifle; Mr. Jiranek will testify to the cause
68
Reply in Support of Motion to Preclude Martini at 1.
Although Dr. Block is deceased, it is permissible for experts to rely on deceased expert’s report if reasonable to do
so in the relevant fields. See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997).
69
70
Stephenson v. Honeywell Int'l, Inc., 703 F. Supp. 2d 1250, 1255 n.2 (D. Kan. 2010).
14
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of the Subject Rifle barrel failure, and Mr. Martini will testify to a ballistic analysis of the
Subject Bullet. 71
To the extent that the proposed testimony of the experts still overlaps, that can be dealt
with at trial if necessary. While it is true that a party may not elicit the same testimony on the
same subject from multiple witnesses, multiple experts may testify on the same subject matter, so
long as they testify from different backgrounds and different areas of expertise. 72 Considering
the different backgrounds and areas of expertise of Dr. Fadala, Mr. Jiranek, and Mr. Martini, it is
unlikely their testimony will overlap. If Mr. Stratton feels the line is crossed during trial, he is
able to make an objection.
Defendant’s Motion to Exclude Dr. Chandran is granted
Thompson moves to preclude Dr. Ravi Chandran because Mr. Stratton has not provided
an expert report for Dr. Chandran, and because Mr. Stratton has represented that Dr. Chandran
will not testify at trial. 73 Mr. Stratton does not oppose this motion.74 Therefore, Dr. Chandran
will be precluded from testifying at trial.
71
While Mr. Jiranek’s report does contain some discussion of ballistics, Thompson has stated that he will not testify
to ballistics at trial.
72
Abbott Point of Care, Inc. v. Epocal, Inc., 868 F. Supp. 2d 1310, 1331 (N.D. Ala. 2012).
73
Motion to Preclude Chandran.
74
Response to Motion to Preclude Chandran.
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Case 4:18-cv-00040-DN-PK Document 199 Filed 06/13/22 PageID.5397 Page 16 of 16
CONCLUSION AND ORDER
IT IS HEREBY ORDERED that:
A.
Plaintiff’s Motion to Exclude Fadala 75 is GRANTED IN PART and
DENIED IN PART. Dr. Fadala may testify to the proper use and care of muzzleloading
rifles. He may not testify to the cause of the Subject Rifle explosion.
B.
Plaintiff’s Motion to Limit the Testimony of Jiranek 76 is GRANTED. Mr.
Jiranek may not testify to FEA or to conclusions based on FEA.
C.
Plaintiff’s Motion to Exclude Martini 77 is GRANTED IN PART and
DENIED IN PART. Mr. Martini may testify to the shape and markings on the Subject
Bullet, and the cause of that shape and those markings. He may not testify to the cause of
the Subject Rifle explosion.
D.
Plaintiff’s Motion to Exclude Cumulative Testimony 78 is DENIED.
E.
Defendant’s Motion to Exclude Dr. Chandran 79 is GRANTED.
Dated June 13, 2022.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
75
Docket no. 147, filed December 10, 2021.
76
Docket no. 150, filed December 10, 2021.
77
Docket no. 148, filed December 10, 2021.
78
Docket no. 146, filed December 10, 2021.
79
Docket no. 145, filed December 10, 2021.
16
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