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O'Neal v. Remington Arms Company, LLC

United States District Court, D. South Dakota, Southern Division

April 14, 2016

CAROL O'NEAL, as Personal Representative of the Estate of Lanny O’Neal, Deceased, Plaintiff,



Defendants, Remington Arms Company, LLC, Sporting Goods Properties, Inc., and E.I. Dupont De Nemours and Company, move the court to disqualify Charles Powell as an expert witness for plaintiff, Carol O’Neal. Defendants also move the court for summary judgment on all of O’Neal’s claims. O’Neal resists the motion.[1] For the following reasons, the court denies the motion to exclude Powell as an expert and denies the motion for summary judgment.


O’Neal is the widow and personal representative of the estate of Lanny O’Neal. The defendants are entities in the business of selling firearms. O’Neal brought an action against defendants after Lanny was shot and killed in a hunting accident on November 9, 2008. The firearm involved in the accident was a Remington Model 700 rifle. O’Neal sued defendants alleging strict liability (product defect), strict liability (failure to warn), negligent design and manufacture, negligent failure to warn, and spoliation of evidence. Docket 1. O’Neal’s spoliation claim was dismissed following a motion by defendants because it is not an independent cause of action. Docket 36.

The parties submitted several motions after discovery concluded.[2] O’Neal moved for partial summary judgment on the issue of product defect, arguing issue preclusion applied. Defendants moved to exclude Powell’s testimony and for summary judgment on all of O’Neal’s claims. The court denied O’Neal’s motion for summary judgment and granted defendants’ motion for summary judgment. Docket 81. Because the court granted defendants’ motion for summary judgment, the court denied defendants’ motion to exclude Powell’s testimony as moot. Id. O’Neal moved the court to reconsider its order. The court denied the motion. Docket 86. O’Neal appealed.

The Eighth Circuit Court of Appeals reversed and remanded. O’Neal v. Remington Arms Co., LLC, 803 F.3d 974 (8th Cir. 2015). The Eighth Circuit concluded that the record contained sufficiently disputed material facts to preclude entry of summary judgment in defendants’ favor. Id. at 982. On remand to this court, defendants renewed their motion to exclude Powell’s testimony and their motion for summary judgment on all of O’Neal’s claims.

I. Defendants’ Motion to Exclude Powell’s Testimony


In diversity cases, federal law controls whether expert testimony is admissible. Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005). Federal Rule of Evidence 702 governs the admissibility of expert testimony. Fed.R.Evid. 702. Under Rule 702, the trial court acts as a “gatekeeper” by screening a party’s proffered expert testimony for its reliability and relevance. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (“The objective of [the gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony.”).

Rule 702 provides:

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.

Fed. R. Evid. 702. “Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (quoting Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir. 1999)). “The rule clearly ‘is one of admissibility rather than exclusion.’ ” Id. (quoting Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991)). Thus, “[t]he exclusion of an expert’s opinion is proper only if it is ‘so fundamentally unsupported that it can offer no assistance to the jury[.]’ ” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (quoting Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)).

The Eighth Circuit has determined that a district court should apply a three-part test when screening expert testimony under Rule 702.

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Lauzon, 270 F.3d at 686 (internal citations and quotations omitted). With respect to relevancy, expert testimony will be relevant and helpful to the jury if it concerns matters beyond the general knowledge of average individuals. See United States v. Shedlock, 62 F.3d 214, 219 (8th Cir. 1995). With respect to an expert's qualifications, Rule 702 recognizes five bases for qualifying an expert, which include “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. Significantly, “[g]aps in an expert witness's qualifications or knowledge generally go to the weight of the witness's testimony, not its admissibility.” Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006).

To satisfy the reliability requirement, the party offering the expert testimony must show by a preponderance of the evidence “that the methodology underlying [the expert's] conclusions is scientifically valid.” Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010). In making the reliability determination, the court may consider: (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) whether the theory or technique has a known or potential error rate and standards controlling the technique's operations; and (4) whether the theory or technique is generally accepted in the scientific community. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). Additional factors to consider include: “whether the expertise was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case.” Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008). “This evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt, or reject” these factors as the particular case demands. Russell, 702 F.3d at 456.

Also when making the relevance inquiry, the court should focus on “principles and methodology, not on the conclusions that they generate.” Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (citing Daubert, 509 U.S. at 595). At times, conclusions and methodology are not entirely distinct from one another, and the court “ ‘need not completely pretermit judicial consideration of an expert's conclusions.’ ” Id. (quoting Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011)). But “[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross- examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (internal quotations omitted).

District courts have discretion in determining whether to admit expert witness testimony under Rule 702. See In re Air Crash at Little Rock Ark., on June 1, 1999, 291 F.3d 503, 509 (8th Cir. 2002). “That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion.” Kumho Tire Co., 526 U.S. at 152. Nonetheless, the proponent of expert testimony must prove its admissibility by a preponderance of the evidence. Daubert, 509 U.S. at 592 n.10.


There is no genuine dispute that Powell is qualified to express an expert opinion or that his opinion is relevant. Regarding Powell’s qualifications, he is a professional engineer who has performed material failure analyses for a number of years. He described his work as “the evaluation of failed components to determine the underlying causes of the failure[.]” Docket 48-7 at 33. Powell has held several teaching positions related to his field and has worked on engineering projects for private and governmental agencies. Docket 48-8 at 3. Powell estimated that he has served as an expert and performed failure analyses in approximately fifty cases involving firearms. Docket 48-7 at 19. Thus, the court finds that Powell is qualified to serve as an expert.

As to relevance, expert testimony is ordinarily required in product liability actions. Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 407 (S.D. 2007). Whether a plaintiff’s theory is based on strict liability or negligence, expert testimony is generally necessary to establish that a product is defective and that the defect proximately caused the plaintiff’s injury. Id. at 7-11; see also Nationwide Mut. Ins. Co. v. Barton Solvents, Inc., 855 N.W.2d 145, 151 (S.D. 2014) (“Expert testimony is generally necessary to establish elements of negligence and strict liability”). Powell explained that he would testify to the defects he has identified in the subject rifle and the cause of the shooting incident. Docket 48-7 at 3. Thus, the court finds that Powell’s testimony is relevant.

Regarding reliability, O’Neal argues that the Eighth Circuit resolved this issue in her favor because the Eighth Circuit cited portions of Powell’s testimony and Powell’s report in its opinion. The court disagrees. This court did not address previously whether Powell’s testimony was admissible. Powell’s testimony and his report were, therefore, considered as evidence and part of the summary judgment record before the Eighth Circuit. The Eighth Circuit noted that “Remington disputes most (if not all) of Powell’s opinions and testimony, as well as other facts in the record, ” but the court was “obligated to view them in the light most favorable to O’Neal, the non-moving party.” O’Neal, 803 F.3d at 975 n.1. The Eighth Circuit cited portions of Powell’s testimony and his report for the purpose of determining whether the record contained sufficient circumstantial evidence to defeat defendants’ motion for summary judgment. See Id. at 981 (“for our purposes in reviewing the grant of summary judgment, we agree with O'Neal that the reasonable inferences supported by this record require us to reverse and remand for further proceedings.”). But the Eighth Circuit explicitly declined to rule on the admissibility of Powell’s testimony and, instead, directed this court to address the issue in the first instance. Id. at 981. Thus, the Eighth Circuit did not hold that Powell’s testimony is reliable or otherwise admissible.

Defendants argue primarily that Powell’s opinions are unreliable because he cannot rule out alternative causes of the accident and that his testimony does not fit with the facts of the case. They argue that Powell’s opinion boils down to speculation. For purposes of defendants’ motion to exclude Powell’s testimony, the court considers only whether the testimony is admissible and does not consider whether it is sufficient to prove an element ...

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