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December 28, 2017 Practice Points

Shots Fired! Hunter’s Claims Against Munitions Maker Survive Summary Judgment

By Jack Nolan

In mid-December, Federal Cartridge Company lost a motion for summary judgment regarding certain claims arising from injuries sustained by Jacob Barben, a hunter, when his shotgun’s barrel burst upon firing. See Barben v. Beretta USA Corp., Case No. 16-cv-00094, Dkt. No. 43 (D. Utah Dec. 18, 2017).

For the uninitiated, like this author, shotgun shells consist of a plastic hull and a metal head with a primer. The shells contain a powder charge, a wad and shot cup, and BBs. Upon firing, the primer ignites the powder charge, which shoots the wad, shot cup, and BBs through the folded end of the plastic hull, expelling the shell’s contents out of the shotgun’s barrel, leaving the plastic hull and metal head intact in the chamber.

According to the court, it is widely known that the plastic hull can separate from the metal head during discharge; this is called “hull separation.” But aside from these allegations, of the over 130 million H121 shells manufactured by Federal Cartridge since 2010, not one has experienced a hull separation.

Mr. Barben, an experienced sportsman, was shooting a Beretta Silver Pigeon at the time of the barrel explosion. The Silver Pigeon is a 12-gauge “break-action shotgun,” which automatically ejects spent shells from the barrels by “breaking” the gun at a hinge action where the barrels meet the gun receiver.

As Mr. Barben began the hunt, he loaded two shells into his Silver Pigeon. After a bird flushed nearby, Mr. Barben fired a shot from his lower barrel. According to Mr. Barben, nothing felt amiss—his Silver Pigeon shot exactly as it had many times before. He then broke the action of his shotgun to eject the spent shell. Although he did not watch the spent shell eject, Mr. Barben claimed that the chamber was clear. After walking a few yards, another bird flushed and Mr. Barben fired again. The shot exploded out of the left side of the barrel with an unusual recoil, severely injuring his left hand.

The Decision
Because the elements of strict products liability and breach of implied warranty of merchantability claims are “essentially the same,” the court analyzed them together, and determined that genuine issues of fact precluded summary judgment.

Mr. Barben presented sufficient evidence to create an inference that the ammunition was unreasonably dangerous, even though he could not identify a specific manufacturing defect. According to the court, Mr. Barben could not do so because the entire shell was never recovered. And ruling that proof of defect was unattainable in these circumstances “would effectively establish a conclusory presumption of non-liability in favor of strict product liability defendants whose products self-destruct in the process of causing injury to persons or property.”

To defeat summary judgment, Mr. Barben offered expert testimony that the explosion resulted from a barrel obstruction caused by a defect in the first shell. According to Mr. Barben’s expert, Tom Roster, the first shell experienced a hull separation upon firing, which allowed the plastic hull (and possibly other shell components) to become lodged in the barrel instead of being expelled with the metal head when Mr. Barben broke the action after the first shot. The second shot then struck this obstruction, causing it to explode out the side of the barrel.

In arriving at his conclusion, Mr. Roster examined the physical evidence, considered testimony that was consistent across six eyewitnesses, and excluded other potential causes of the barrel explosion. The chief alternative theory advanced by Federal Cartridge was that Mr. Barben accidentally used a 20-gauge shell instead of a 12-gauge. But neither Mr. Barben nor any of the other shooters owned a 20-gauge shotgun. Nor did the physical evidence support that theory.

Therefore, Mr. Roster’s opinion was sufficient to create an inference that Federal Cartridge’s ammunition was unreasonably dangerous due to a manufacturing defect, and that this defect caused Mr. Barben’s injuries. It will be for a jury to decide whether the circumstantial evidence is enough to sustain Mr. Barben’s claims against Federal Cartridge.

Federal Cartridge pitched a shutout for nearly seven full years. In quite an achievement of design—and to the delight of in-house counsel, presumably—it manufactured over 130 million shells without a single reported hull separation.

But that streak may now be over. And young lawyers should be mindful that, despite a client’s track record, it is unlikely to remain perfect forever. Nevertheless, the key to minimizing risk, from both a legal and business perspective, is to continually strive for perfection—elusive though it may be.

Jack Nolan is an associate with Weil, Gotshal & Manges LLP in New York City, New York.

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