The Tenth Circuit recently affirmed the dismissal of a suit seeking to hold a gunmaker n liable for injuries a woman alleged she suffered when a rifle fired spontaneously. Harris v. Remington Arms Co., LLC, 997 F.3d 1107 (10th Cir. 2021). The case turned on the admissibility of plaintiff’s expert evidence.
Roughly two years after buying the rifle, Ms. Harris took it to hunt. As she climbed to a tree stand, the rifle got tangled in mesh. Ms. Harris alleged that when she had tried to free the rifle from the mesh, the safety moved to the “off” position and the rifle fired into her hand without anyone pulling the trigger. Ordinarily, a rifle has two separate safeguards preventing an unintentional shot. The first is the safety mechanism. When the safety is on, the rifle can’t fire. The second is the trigger mechanism. Remington puts space between the mechanisms for the safety and trigger so that a user must pull the trigger to fire the rifle.
This raises an important question. Is expert discovery like a tennis match, with volley responding to volley? Most courts say it is not. Here, the Harrises did not timely disclose Mr. Powell’s opinion testimony about the movement of Molykote. This opinion did not appear in Mr. Powell’s expert report or deposition testimony, and the Harrises did not disclose this opinion until more than two months after the deadline for expert reports. Id. at 1112.
In deciding whether the delay was harmless, the court considered four factors:
Here, the district court properly found that
Lacking an expert opinion on these issues of defect and causation, summary judgment was granted. And the court of appeals affirmed.