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Judy Greenwald

Product liability case against Smith & Wesson reinstated on appeal

July 29, 2014 - 2:04pm

Smith & Wesson 460XVR Gun

Smith & Wesson 460XVR revolver.


A federal court should have admitted a plaintiff expert’s testimony, even though it contradicted the plaintiff’s own testimony regarding the circumstances of his accident, says a federal appeals court, in reinstating a products liability lawsuit against gunmaker Smith & Wesson Corp.

Mark Lee was injured in November 2006 while target shooting with a 460XVR revolver manufactured by Springfield, Massachusetts-based Smith & Wesson, according to Tuesday’s ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Mark D. Lee v. Smith & Wesson Corp. After firing his gun twice, Mr. Lee took a third shot, and the gun discharged improperly, seriously injuring his right eye, face and nose.

Mr. Lee filed suit against Smith & Wesson under the Ohio Product Liability Act in state court in Ohio. The case was subsequently moved to federal District Court in Cleveland.

Mr. Lee’s account of the accident differed from that of his own expert witness, mechanical engineer Roy Ruel, according to the ruling. Mr. Lee testified he had closed the guns’ cylinder, locked it into place, cocked the hammer, pulled the trigger, and fired.

Mr. Ruel’s opinion was that the cylinder was open when the gun was fired, which caused hot high-pressure gas to be expelled from the revolver when it was fired, striking Mr. Lee in the face and causing his injures. He determined the revolver was defective in both design and manufacture in part became it could be cocked and fired with a pull of the trigger without its cylinder being closed and locked.

Smith & Wesson moved to exclude Mr. Ruel’s expert testimony because of the inconsistency with Mr. Lee’s. The federal District Court agreed and dismissed the case. Mr. Lee agreed to the dismissal, preserving his right to appeal.

“Ruel’s expert testimony should have been admitted,” said a three-judge appeals panel in a 2-1 opinion. “Ruel had the appropriate qualifications, he used reliable methods and his opinion was based on physical evidence from the accident,” it said.

Regarding the inconsistencies between Mr. Ruel’s and Mr. Lee’s testimony, under the law, a plaintiff is not precluded from proving his case by contradictory evidence, said the ruling. Mr. Lee may have been mistaken about the cylinder being open, it said. “In light of this possibility, a jury presented with no believable alternative explanation could believe that Lee’s testimony was wrong,“ said the ruling.

A fact finder “could conclude that Lee thought he had closed the chamber when in fact he did not, and instead overlooked the opening, which Ruel suggests was the case in Lee’s accident, said the ruling, in noting that two witnesses supported this version of the event.

“In this situation, the expert’s evidence should have been admitted,” said the appellate court, reversing the lower court’s ruling and remanding the case for further proceedings.

The dissenting opinion said the judge properly excluded Mr. Ruel’s testimony on the basis it did not “fit” the facts of the case.

 



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