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Vickery v. Remington Arms Company LLC

United States District Court, N.D. Alabama, Western Division

March 19, 2015

WIL A. VICKERY, Plaintiff,
v.
REMINGTON ARMS COMPANY LLC, Defendant.

MEMORANDUM OPINION

R. DAVID PROCTOR, District Judge.

This matter is before the court on (1) Defendant's Motion to Exclude Plaintiff's Liability Expert (Doc. # 30); (2) Defendant's Motion for Summary Judgment (Doc. # 31); and Defendant's Motion to Strike the New Affidavit of Plaintiff's Expert (Doc. # 45). The Motions have been fully briefed. (Docs. # 35, 37, 43, 46, 47).

Plaintiff's Amended Complaint asserts three claims: (1) a violation of the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), (2) negligence/wantonness, and (3) breach of warranty. (Doc. # 15). The Motions before the court (Docs. # 30, 31 and 45) are interdependent because a ruling excluding Plaintiff's expert's opinions would deprive Plaintiff of evidence of causation, an essential element of each of his claims. See Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, 31 (Ala. 2003) (To succeed on a claim under the AEMLD, the plaintiff must prove, among other elements, "that an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer." (citation and internal quotation marks omitted); Farr Metal, Inc. v. Hines, 738 So.2d 863, 863 (Ala. 1999) (Under Alabama law, to prevail on a negligence claim, "a plaintiff must establish four elements: 1) a duty to a foreseeable plaintiff; 2) a breach of that duty; 3) proximate causation; and 4) damage or injury); Clark v. Allied Healthcare Products, Inc., 601 So.2d 902, 903 (Ala. 1992) ("In order to sustain a cause of action under breach of warranty, plaintiff must prove the existence of such warranty, breach, and proximate causation of damages.").

I. Background

Plaintiff's theory in this case is that he was injured while firing a rifle because of Defendant's defective ammunition. More specifically, Plaintiff claims that the Core-Lokt.270 caliber 130 grain PSP cartridge (which was manufactured by Defendant and fired by Plaintiff) was over-pressurized and caused the rifle and cartridge to be blown apart injuring Plaintiff. Plaintiff has proffered the expert testimony of Lawden H. Yates in support of his theory. The Motions filed by Defendant (Docs. # 30, 31 and 45) challenge the admissibility of the expert opinion offered by Yates. Based upon the issues raised in connection with the Motions before the court, it is necessary for the court to examine the record evidence about the rifle and ammunition at issue in this case.

Before the incident upon which Plaintiff bases his claim, he had owned his Browning A-Bolt II rifle for approximately two years. (Doc. # 30-6 at 95:23-96:9, 97:19-23, 98:5-8). Plaintiff was an experienced hunter. (Doc. # 30-6 at 21:21-23:20, 43:13-44:9). He cleaned the gun every week or two, and had cleaned it the night before the incident causing his injury. (Doc. # 30-6 at 97:19-23, 100:9-12, 103:6-16). Plaintiff had not experienced any trouble with the bolt, getting the bolt to close, or the way the bolt worked. (Doc. # 30-6 at 107:7-15). He did not notice anything unusual about the gun when loading it on the morning of the incident. (Doc. # 30-6 at 115:23-116:4).

On January 19, 2011, Plaintiff was hunting from a deer stand near his brother's home. (Doc. # 15 at ¶ 8; Doc. # 30-6 at 109:2-110:4). Plaintiff was using the Browning A-Bolt II rifle with Remington Core-Lokt 130 grain PSP ammunition. (Doc. # 15 at ¶ 9). The ammunition came in a box of 20 cartridges. (Doc. # 30-6 at 57:5-58:2). That day, Plaintiff had fired 16 of the 20 cartridges without experiencing anything out of the ordinary. (Doc. # 30-6 at 57:14-58:2).

On the morning of the hunt, Plaintiff fired shots at two deer and a bobcat, missing all three. (Doc. # 30-6 at 115:1-17). Plaintiff thought that his scope was out of alignment. (Doc. # 30-6 at 116:5-22). Plaintiff left his deer stand to (among other things) purchase more ammunition. (Doc. # 30-6 at 124:1-125:6).

After buying ammunition, Plaintiff went to another location near his brother's house to sight his rifle. (Doc. # 30-6 at 130:2-131:1). Plaintiff set up a target at 100 yards. (Doc. # 30-6 at 130:2-131:1, 138:17-22). He loaded the rifle and closed and lowered the bolt-handle. As the following testimony indicates, although Plaintiff lowered the bolt-handle, he could only assume that the locking-lugs on the rifle's bolt-head were locked in the receiver:

Q. When you closed the bolt on that day, you can't see the locking lugs at the end of the bolt, right?
A. You cannot.
Q. So when you move the handle down, you don't know whether or not the locking lugs on this particular day locked up properly, correct?
A. Correct.

(Doc. # 30-6 at 147:18-148:4).

Plaintiff acknowledged that the rifle would not be functioning properly if the locking-lugs did not lock when he closed and lowered the bolt-handle:

Q. If you were to close the bolt handle on a bolt action rifle, but the locking lugs between the bolt and the rest of the gun did not properly engage, would you consider that a malfunction with the gun?
A. Yes.

(Doc. # 30-6 at 96:10-96:17).

When Plaintiff pulled the trigger to shoot the target, the chambered round fired, and the Plaintiff immediately felt a blast hit him in the face. (Doc. # 30-6 at 148:5-150:5). The bolt had been ejected rearward from the rifle. (Doc. # 30-6 at 150:18-151:13). Plaintiff sustained a broken nose and a broken right thumb. (Doc. # 30-6 at 155:22-156:2; 170:5-171:3; 182:16-183:2; 185:22-186:14).

A. The Rifle

Browning manufactured the subject rifle - a Browning A Bolt II - in 1994. (Doc. # 30-3 at 3). Plaintiff bought the rifle, used, from his father's uncle, approximately two years prior to the 2011 accident. (Doc. # 30-6 at 95:23-96:9; 98:5-8). The Browning rifle utilizes a bolt-action style lockup designed to contain the pressures produced in the barrel when a chambered cartridge is fired. (Doc. # 30-3 at 5). The bolt assembly is designed to lock in the firing position when the user pushes the bolt-handle fully forward and then down. (Doc. # 30-3 at 5).

When the bolt-handle is closed and lowered, the bolt-head is designed to rotate clockwise causing its three locking-lugs to align with lug mating surfaces or abutments in the receiver. When the bolt-handle is closed, if the bolt-head locking-lugs do not engage the mating surfaces in the receiver, the rifle is not locked; in that event, it is not safe to fire the chambered cartridge. (Doc. # 30-3 at 5-6).

By design, as the bolt-handle is closed and lowered, the linkage of the bolt-head to the bolt-handle through the bolt-body causes the bolt-head's locking-lugs to rotate into engagement with the mating receiver surfaces. (Doc. # 30-3 at 5-6). If the linkage between the bolt-handle and the bolt-head is broken or interrupted, the lowering of the bolt-handle will not lock the bolt-head locking-lugs. (Doc. # 30-3 at 5, 8; Doc. # 30-2 at 148:10-149:20).

A bolt-action rifle must be in good working order and mechanically locked during firing to properly support and contain the pressures generated by the firing of a cartridge. (Doc. # 30-4 at 9-10). If the rifle is fired without engagement of the bolt-head's locking-lugs in the receiver, the rifle cannot contain the rearward thrust forces generated by the standard pressure of a fired cartridge. (Doc. # 30-4 at 9-10). Such a condition in the rifle is dangerous and can cause rearward ejection of the bolt upon firing of a standard pressure cartridge. (Doc. # 30-2 at 192:8-192:14, 218:17-219:1; 219:19-220:7; 246:13-247:1).

When a rifle is fired while unlocked and the bolt is forcibly propelled rearward, the head of the cartridge is held to the bolt-head by the extractor and pulled rearward with the bolt. However, the body of the cartridge obturates ( i.e., expands) to the dimensional limits of the rifle's chamber. (Doc. # 30-4 at 6, 10). As a result, as the bolt is propelled rearward, the cartridge case head will be torn or pulled from the case body, creating a 360° case head separation. (Doc. # 30-4 at 10). As the cartridge separates and the bolt is ejected rearward, the gas pressure created by the burning gunpowder, which normally exits only the muzzle of the rifle, is also released to the rear. (Doc. # 30-4 at 10).

When examined by the parties' experts, the linkage between the rifle's bolt-handle and the bolt-head was severed between the bolt-handle and the bolt-body:

Q. So as you found the evidence, there's actually a separation between the two parts that are necessary to be together for the bolt handle and ...

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