Cynthia Seamon v. Remington Arms Company, LLC

Case: 14-15662 Date Filed: 02/17/2016 Page: 1 of 16

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-15662 ________________________

D.C. Docket No. 2:12-cv-00895-WKW-TFM

CYNTHIA SEAMON, individually and as Personal Representative of the Estate of Kenneth Seamon, deceased,

Plaintiff-Appellant,

versus

REMINGTON ARMS COMPANY, LLC,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(February 17, 2016)

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBRENO, * District Judge.

ROBRENO, District Judge:

* The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.  Case: 14-15662 Date Filed: 02/17/2016 Page: 2 of 16

This appeal arises out of a product liability case against Remington Arms

Company, a gun manufacturer. The district court excluded Plaintiff’s expert – who

concluded that Plaintiff’s husband died as a result of a defect in the design of his

rifle – finding his opinion speculative and thus unreliable. As a result, the district

court granted summary judgment for Remington. Plaintiff now appeals.

We hold that the district court abused its discretion by excluding Plaintiff’s

expert, and so we reverse the judgment granting both the motion to exclude and the

motion for summary judgment.

I. BACKGROUND

This case results from the tragic death of 49-year-old Kenneth Seamon. On

November 26, 2011, Mr. Seamon was deer hunting alone in Autauga County,

Alabama. After Mr. Seamon failed to respond to text messages from his wife and

daughter, his son-in-law went to investigate and found Mr. Seamon dead in his

elevated tree stand with a single gunshot wound to his chest. Law enforcement

officers found Mr. Seamon’s rifle on the ground thirteen feet below the tree stand;

there was a rope attached to the rifle with carabiners and wrapped around the

rifle’s scope and safety. The rifle’s safety mechanism was off, there was a spent

cartridge casing in the rifle’s chamber, and there was no gunshot residue on Mr.

Seamon’s body or clothing, which led responding officers to conclude that the rifle

was at least five to ten feet away from Mr. Seamon when it fired. Moreover, Mr.

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Seamon’s left hand was clenched around the front rail of his tree stand, while his

right hand was positioned as if he had been grasping something. There are no

known witnesses to the shooting. The question, therefore, is a veritable whodunit:

what caused the rifle to fire?

Plaintiff-Appellant Cynthia Seamon (“Plaintiff” or “Appellant”) –

individually and as Personal Representative of the Estate of Kenneth Seamon –

filed suit against Defendant-Appellee Remington Arms Company, LLC

(“Defendant” or “Appellee”), in the Middle District of Alabama. Plaintiff, Mr.

Seamon’s widow, alleged that Mr. Seamon died as a result of a defect in his

Remington Model 700 bolt action rifle.

Both parties filed motions for summary judgment. Defendant also filed a

motion to exclude the causation opinion of Plaintiff’s liability expert, Charles

Powell, who had concluded that the rifle fired due to a defect in its trigger system.

The district court issued an opinion and order granting both of Defendant’s

motions and denying Plaintiff’s motion. The court then entered final judgment in

favor of Defendant and against Plaintiff. Plaintiff filed a motion for

reconsideration, which the court denied.

Plaintiff now appeals, arguing that the district court erred both by excluding

Powell’s causation opinion and by granting Defendant’s motion for summary

judgment.

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A proper analysis of the issues at stake requires detailed understandings of

both the rifle’s trigger system and Powell’s opinion:

The Remington Model 700 rifle contains the Walker fire control system,

named for its inventor. Critical in this case are two particular components of the

system – the “connector” and the “sear.” In firearms, the sear is the part of the

trigger mechanism that holds back the firing pin. In the Walker system, unlike

other trigger systems, a connector supports the sear by resting under it. When the

trigger is pulled, the connector moves forward, allowing the sear to drop and the

firing pin to snap forward and fire a cartridge.

The place at which the connector and the sear meet is called the “sear

engagement.” Because the connection occurs at the corners of these two

components, the sear engagement is very small – roughly 0.025” (or less),

according to rifle specifications. In other words, the connector supports the sear by

roughly one-fortieth of an inch. As a result, even very slight movement of the

connector allows the sear to drop and the rifle to fire.

According to Powell, rifles with Walker triggers have fired unexpectedly “a

number of times in historical testing and experiences reported in documents

produced by Remington Arms.” 1 In Powell’s view, the use of the connector is a

1 For further discussion of the Walker trigger system and its checkered history, see O’Neal v. Remington Arms Co., LLC, 803 F.3d 974 (8th Cir. 2015), a case involving the same expert witness (Charles Powell) and the same rifle model (Remington Model 700) as in this case. In

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design defect in the Walker system because the connector “does not reliably return

to full engagement with the [s]ear each time the rifle bolt is cocked.” If the

connector does not fully return to its proper position supporting the sear, the sear

can drop when it should not – which, in turn, causes the rifle to fire.

What causes the connector to fail to return to its proper position is the

presence of “interferences” within the fire control housing. Powell’s examples of

interferences include dirt, corrosion deposits, condensation, frozen moisture,

lubricant deposits, firing deposits, and manufacturing residue. Because the sear

engagement is very small even when the rifle is in perfect condition, the presence

of even minute particles can prevent the connector from engaging the sear

correctly. When this occurs, the connector’s position is precarious enough that if

the rifle comes into contact with any external forces – anything that is not the rifle

itself – the connector can fall out of place, causing the sear to drop and the rifle to

fire, even without a trigger pull.

Because Powell found particles and deposits within the fire control housing

during his examination of the rifle – the types of particles and deposits “that have

been shown to be sources of interferences for the connector sear engagement” in

other rifles with Walker systems – he believes that in this case, “interferences with

O’Neal, the Eighth Circuit determined, among other things, that for the purposes of summary judgment, the evidence was sufficient to show that any rifle with a Walker trigger system “is defective and not fit for its ordinary purpose.” Id. at 979.

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the fire control components produced inadequate sear-connector engagement and

allowed the subject rifle to release the firing pin and fire the subject rifle without

any interaction with the trigger.” He further believes that the firing may have been

spurred by a “jar-off” – meaning that the rifle contacted an external force like the

tree, rope, or ground, and the connector was further jarred out of position, allowing

the rifle to fire.

Additionally, when Powell examined the rifle, the sear engagement was still

at a safe level even despite the presence of particles and deposits. In fact, he stated

during his deposition that when examining this type of rifle after an inadvertent

firing, he has never seen a precipitous sear engagement due to interferences.

However, he believes that he has not observed such conditions because by the time

he receives a rifle for inspection, the rifle’s actions have worked and the conditions

are no longer the same as they were before the rifle fired. In other words, the fact

that he has not seen a dangerously low sear engagement due to interferences after a

rifle allegedly fired without a trigger pull does not mean those conditions did not

exist before the rifle fired.

The district court excluded Powell’s opinion, finding that it was speculative

and thus unreliable.

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II. STANDARDS OF REVIEW

We review the district court’s exclusion of expert testimony for abuse of

discretion. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). Under

this standard, we reverse only if the district court “applies an incorrect legal

standard, follows improper procedures in making the determination, or makes

findings of fact that are clearly erroneous.” Klay v. United Healthgroup, Inc., 376

F.3d 1092, 1096 (11th Cir. 2004) (quoting Martin v. Automobili Lamborghini

Exclusive, Inc., 307 F.3d 1332, 1336 (11th Cir. 2002)). In the Daubert context, we

defer to the district court’s ruling unless it is “manifestly erroneous.” Id. “Because

the task of evaluating the reliability of expert testimony is uniquely entrusted to the

district court . . ., we give the district court ‘considerable leeway’ in the execution

of its duty.” Id. (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152

(1999)) (citation omitted).

We review the district court’s ruling on a motion for summary judgment de

novo, applying the same legal standards that bound the district court. Nat’l Fire

Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003).

Motions for summary judgment should be granted only when the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, show that there is no genuine issue as to any material fact and that the

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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. DISCUSSION

A. Motion to Exclude Expert Testimony

Federal Rule of Evidence 702 governs the admissibility of expert testimony.

It provides as follows:

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.

Rule 702 compels district courts to perform a “gatekeeping” role concerning

the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 597 (1993); Kumho, 526 U.S. at 141. Courts must consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of

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inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)

(footnote omitted).

As to the first prong – qualifications – “experts may be qualified in various

ways,” including by scientific training, education, and experience. United States v.

Frazier, 387 F.3d 1244, 1260-61 (11th Cir. 2004).

The second prong – reliability – concerns “whether the reasoning or

methodology underlying the testimony is scientifically valid and . . . whether that

reasoning or methodology properly can be applied to the facts in issue.” Daubert,

509 U.S. at 592-93. The district court may consider “(1) whether the expert’s

methodology has been tested or is capable of being tested; (2) whether the

technique has been subjected to peer review and publication; (3) the known and

potential error rate of the methodology; and (4) whether the technique has been

generally accepted in the proper scientific community.” McDowell v. Brown, 392

F.3d 1283, 1298 (11th Cir. 2004) (citing Daubert, 509 U.S. at 593-94). This list is

not exhaustive; the district court may take other relevant factors into account. In

assessing reliability, the court must focus “solely on principles and methodology,

not on the conclusions that they generate.” Daubert, 509 U.S. at 595.

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Finally, the third prong – helpfulness, or fit – “goes primarily to relevance.”

Id. at 591. “The ‘basic standard of relevance . . . is a liberal one,’ but if an expert

opinion does not have a ‘valid scientific connection to the pertinent inquiry’ it

should be excluded because there is no ‘fit.’” Boca Raton Cmty. Hosp., Inc. v.

Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (quoting Daubert,

509 U.S. at 587, 591-92).

This case involves the second prong: reliability. The district court

determined that Powell’s opinion is unreliable for two reasons: (1) Powell had not

adequately accounted for possible alternative causes of the shooting; and (2)

Powell had formed his opinions based upon facts not in the record. We hold that

both of these conclusions are manifestly erroneous because they mischaracterize

Powell’s opinion and the evidence supporting it, and thus that the district court

abused its discretion by excluding Powell’s testimony. See Adams v. Lab. Corp. of

Am., 760 F.3d 1322, 1328-29 (11th Cir. 2014) (holding that it was manifestly

erroneous for the district court to exclude an expert on the basis that her opinion

was “an ipse dixit assessment,” when the record was to the contrary); United States

v. Alabama Power Co., 730 F.3d 1278, 1284-88 (11th Cir. 2013) (holding that the

exclusion of an expert was an abuse of discretion because the district court

mischaracterized the evidence supporting the expert’s opinion); United Fire & Cas.

Co. v. Whirlpool Corp., 704 F.3d 1338, 1341-42 (11th Cir. 2013) (reversing the

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exclusion of a portion of an expert’s testimony because the district court had failed

to consider the evidence supporting that opinion).

1. Powell’s Treatment of Alternative Causes

Contrary to the district court’s conclusion, it is evident from the record that

Powell did in fact “provide a reasonable explanation as to why he ‘has concluded

that [any alternative cause suggested by the defense] was not the sole cause’ of the

plaintiff’s injury.” Guinn v. AstraZeneca Pharm. LP, 602 F.3d 1245, 1253 (11th

Cir. 2010) (alteration in original) (quoting Best v. Lowe’s Home Ctrs., Inc., 563

F.3d 171, 179 (6th Cir. 2009)). When asked during his deposition about

Defendant’s theory that the rifle fired due to a trigger pull, either by Mr. Seamon or

someone else, Powell responded, “I don’t have any evidence that the trigger was

pulled in this case. In fact, the evidence is just to the contrary, that the rifle was

being raised or lowered at the time and it went off.” The record supports this

conclusion. The lack of gunshot residue on Mr. Seamon suggests that he did not

pull the trigger himself. The position of his body – his left hand grasping the tree

stand, his right hand positioned as if it were grasping the rope – suggests that

someone else did not come along and pull the trigger, but rather that he was in the

process of raising or lowering the rifle. The position of the rope – wrapped around

the scope and the safety – also suggests that the rope did not pull the trigger. And

there appeared to be no branches or other objects which could have caught the

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trigger between the tree stand and the ground. Given the evidence, therefore,

Powell did provide a reasonable explanation for why the defense’s proposed

alternative cause – a trigger pull – was not in fact the cause of Mr. Seamon’s death.

2. Factual Support for Powell’s Opinion

In holding that Powell’s opinion was based on speculation, rather than facts

in the record, the district court also mischaracterized the evidentiary support for

Powell’s opinion in several ways.

First, the district court conflated reasonable inference with improper

speculation when considering the circumstances of the shooting:

Is it possible that Mr. Seamon lost his grip on the rope and that the rifle crashed onto the ground? Is it possible that Mr. Seamon snatched the rope, which jolted the rifle? Is it possible that Mr. Seamon raised or lowered the rifle with gentle ease? Is it possible that someone else shot Mr. Seamon with his own rifle? All of these factual possibilities and any number of others are unanswered by the evidence and, thus, fall within the realm of the unknown. This goes to show that Plaintiff has not shown how the record supports the inferences upon which Mr. Powell relies for his opinion testimony that this case “may have been a jar off.” “May not have been” is an equally plausible inference.

Seamon v. Remington Arms Co., LLC, 51 F. Supp. 3d 1198, 1213-14 (M.D. Ala.

2014). While it is true, as the district court noted, that there is no affirmative

evidence of a jar-off – evidence which cannot exist, under the circumstances of this

case – the evidence here is inconsistent with the defendant’s theory (a trigger pull)

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and fully consistent with Powell’s jar-off theory. Under these circumstances, it was

not speculative or unreasonable, as the district court stated,2 for Powell to infer that

a jar-off occurred. Moreover, even if the district court had been correct in its

determination that a trigger pull and Powell’s theory are “equally plausible,” that

finding would not be a basis for the exclusion of Powell’s opinion. Once an expert

opinion has satisfied Daubert, a court may not exclude the opinion simply because

it believes that the opinion is not – in its view – particularly strong or persuasive.

The weight to be given to admissible expert testimony is a matter for the jury. See

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir.

2003) (“[I]t is not the role of the district court to make ultimate conclusions as to

the persuasiveness of the proffered evidence. . . . Quite the contrary, ‘[v]igorous

cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.’” (quoting Daubert, 509 U.S. at 596) (third alteration in

original)).

Second, the district court incorrectly stated that Powell “was unable to

replicate a ‘jar off’ in his testing and inspection of the subject rifle.” Seamon, 51 F.

Supp. 3d at 1214. At his deposition, Powell in fact clarified that he did not attempt

to conduct a jar-off test on the rifle at issue because by the time he received the

2 Seamon, 51 F. Supp. 3d at 1213.

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rifle, the sear engagement was not low enough to necessitate such a test.

Importantly, the fact that the sear engagement was safe at the time of Powell’s

examination does not prove that it was also safe before the rifle fired, because the

placement of the sear would necessarily be different before and after the rifle fired.

Accordingly, it was clearly erroneous for the district court to effectively draw an

adverse inference from the alleged failure of Powell’s testing, when he did not

conduct that test in the first place because the condition of the sear engagement

would have made it a fruitless enterprise.

Finally, the district court also noted that there was no evidence of

interferences causing a precipitously low sear engagement at the time the rifle

fired. 3 That observation is partially correct, as it is simply impossible to know the

precise positioning of the sear in the moments before the rifle fired. But Powell did

find debris in the fire control housing – the type of debris that he previously has

observed interfering with the sear engagement in the same type of rifle. Under

these circumstances – where evidence also suggests the trigger was not pulled and

the only other possibility is that the rifle fired without a trigger pull – it does not

3 The district court also discussed (and discounted) an alternative theory: that the sear engagement was precipitously low, such that the rifle could fire if jarred, due to a previous partial trigger pull from which the sear engagement had not recovered. Powell’s opinion, however, did not rest on this theory. Rather, he merely acknowledged during his deposition that such a scenario was possible, particularly because the rifle had failed regain tests – meaning that the connector did not fully return to its proper position after a partial trigger pull.

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require “a metaphysical process”4 to infer that the debris in the fire control housing

created the condition (a precipitous sear engagement) that would have allowed the

rifle to fire upon being jarred. Moreover, the district court incorrectly stated in its

discussion of interferences that Powell “has never seen the condition he proposes

existed in this rifle at the time of the shooting.” Seamon, 51 F. Supp. 3d. at 1214.

What Powell actually testified to is that he has never seen this condition in a Model

700 accident rifle – that is, a rifle that has allegedly fired without a pull of the

trigger – because by the time he receives an accident rifle for examination, the

debris or deposits that would have interfered with the sear’s position have

necessarily been dislodged through the firing of the rifle. Powell did state that he

has observed interferences creating low sear engagements in non-accident rifles

with Walker trigger systems.

Under these circumstances, we hold that the district court manifestly erred

by mischaracterizing Powell’s opinion and the evidence supporting it, and thus that

it was an abuse of discretion for the district court to exclude Powell’s testimony.

B. Motion for Summary Judgment

As the district court recognized, Defendant’s motion for summary judgment

relied entirely on its motion to exclude Powell’s opinion; the district court’s

summary judgment decision thus rested entirely on its exclusion of Powell’s

4 Seamon, 51 F. Supp. 3d at 1214.

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testimony. Therefore, because we reverse the district court’s decision to grant the

motion to exclude, we also reverse the court’s decision to grant Defendant’s

motion for summary judgment.

IV. CONCLUSION

For the foregoing reasons, we reverse the district court’s order granting

Defendant’s motion to exclude expert testimony and motion for summary

judgment, and vacate the judgment entered for Defendant. The case is remanded to

the district court for further proceedings consistent with this opinion.

REVERSED.

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