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Seventh Circuit Finds Statute Of Repose Bars Products Action Involving Muzzleloader Rifle Purchased In 1994

James M. Dedman, IV

Rejecting a Plaintiff’s negligence and strict liability claims in a case involving a muzzleloader rifle, the Seventh Circuit recently affirmed an Indiana federal district court’s grant of summary judgment on statute of repose grounds. Hartman v. EBSCO Indus., Inc., — F.3d —-, No. 13–3398, 2014 WL 3360799 (7th Cir. July 10, 2014). In so doing, the Seventh Circuit analyzed the two exceptions to Indiana’s ten year statute of repose and found that neither allowed the Plaintiff to bring claims involving a 2008 accident involving a LK–93 Wolverine muzzleloader first purchased in 1994.

For fourteen years, the Plaintiff had used his muzzleloader rifle (the somewhat complicated inner workings of which the Seventh Circuit explained in detail). In fact, he estimated he had fired it between 500 and 600 times prior to his November 2008 accident. His father had purchased and given to him the original rifle in 1994, but in 2008, the Plaintiff purchased a Knight 209 Primer Extreme Conversion Kit, an accessory designed to “deliver a hotter spark and thereby ignite Pyrodex pellets more reliably.” Plaintiff installed the kit himself. The court described the accident as follows:

[Plaintiff] fired two shots and did not swab the Wolverine’s barrel between shots. He fired a conical bullet with his first shot and a patched round ball with the second. Before attempting to load the rifle for a third shot, [Plaintiff] put a primer cap on the nipple of the breech plug . . .though he knew that a live primer cap should not be put on the nipple before loading. He then loaded two Pyrodex pellets into the muzzle of the rifle followed by another patched round ball. [The manufacturer of the Pyrodex pellets] warns against using patched round balls with Pyrodex pellets, because using round balls instead of bullets when firing Pyrodex pellets carries an increased risk of unexpected discharge.  [Plaintiff] attempted to seat the patched round ball in the barrel of the gun with a ramrod. The Wolverine then unexpectedly discharged, causing both the ramrod and the round ball to pass through both of Hartman’s hands and his right forearm.

As a result of the accident, the Plaintiff sued a number of corporate defendants, which for the sake of ease shall be referred to collectively as the manufacturer. Because the original muzzleloader was purchased 14 years before the accident, the manufacturer invoked the ten year statute of repose. See Ind. Code § 34–20–3–1. The district court granted summary judgment on those grounds. On appeal, the Seventh Circuit confronted the two exceptions to that statute of repose: “(1) where a manufacturer refurbishes a product to extend its useful life, or (2) where a defective new component is incorporated into the old product” and affirmed the lower court’s ruling on those grounds.

Confronting the first exception, the Seventh Circuit thought little of the argument that the kit extended the useful life of the muzzleloader, noting that the statue of repose is “not reset by mere product upgrades or by adding new components that do not lengthen the product’s useful life.” In fact, the Seventh Circuit “doubt[ed] that the statute of repose could ever be reset by a user-installed component like the conversion kit.” Ultimately, the Seventh Circuit found that although the conversion kit may have made the rifle “more powerful” it had “no effect” on “how long the gun will be usable.” Thus, a performance enhancing refurbishment which did not also extend product life was irrelevant to the inquiry. Analogizing to “an old laptop computer,” the Seventh Circuit noted that the addition of a faster processor would not extend product life or implicate the exception while, on the other hand, a new battery would, in fact, do so both. Thus, the Seventh Circuit found that the first exception did not apply to save Plaintiff’s claims from the statute of repose.

Turning to the second exception, the Seventh Circuit found that it applies when a manufacturer “merely … incorporat[es] a defective component into an old product.” Indeed, the court noted that this exception exists to deter manufacturers from installing dangerous or defective new components into products already implicating the statute of repose. In an attempt to bring his claims within this exception, the Plaintiff asserted failure to warn and design defect claims, both of which the court rejected by finding that the new component did not increase the risk of the original product. (Indeed, if the component did not provide an increased risk, then any duty to warn of the risk would have arisen at the time of the original purchase). In analyzing this exception, the Seventh Circuit considered the testimony of the Plaintiff’s retained testifying gunsmith expert (who opined that the kit increased the likelihood of latent embers,” an opinion which, if reliable, would rescue the Plaintiff’s claims from the summary judgment finding of the district court. However, in approving of the district court’s exclusion of that expert’s opinions on that issue, the Seventh Circuit quoted directly from the district court’s order:

[The Plaintiff’s expert] did not perform any kind of testing to prove that the 209 breech plug is more likely to retain latent embers. He introduced no evidence that his theory has been subjected to peer review or publication, or has been generally accepted among other firearms experts. He did not discuss the known or potential error rate of his theory relating to the 209 breech plug. He stated, instead, that “the problem of latent sparks in this Danger zone is easily foreseeable especially during the design process and this problem should have been addressed when the 209 Conversion Kit was in the developmental stage.

The Plaintiff’s expert also testified that the failure to include a modified cleaning jag with the conversion kit permitted led to a defective condition in the rifle. A cleaning jag, according to the court, is a “tool that screws on to the end of the ramrod and is inserted into the barrel of the muzzleloader between shots to clean the barrel and clear away debris and latent embers that might cause accidents.” In making this point, the Plaintiff’s gunsmith expert designed his own cleaning jag, although his design “had never been used, his design had not been tested, and no similar jag was in use anywhere in the industry.” Thus, the district court excluded evidence of the alternative jag, a decision which the Seventh Circuit affirmed. The Seventh Circuit also found that any jag testimony would be irrelevant because it “would not have made a difference [in the case] because [the Plaintiff] did not swab the barrel of his Wolverine before it discharged.”

Interestingly, in addition to embedding an image of the parts of the in-line action into the body of the opinion, the Seventh Circuit also cited two websites in its opinion. First, in providing a source to the aforementioned image, the court cited to an article from Hunter-Ed.com, a site offering “Official Hunter Safety Courses for Today’s Hunter.” The Seventh Circuit also cited to an article entitled “10 Innovations that Led to the Modern Bullet, Fulminate of Mercury/Percussion Cap” from the How Stuff Works website. It is unclear from the opinion if these websites were before the district court.

Published by Defense Research Institute
Strictly Speaking
Volume 11, Issue 3
August 8, 2014