February 01, 2018
Recently, Judge David Nuffer of the U.S. District Court for the District of Utah denied Federal Cartridge Company’s motion for summary judgment regarding claims for defective manufacture and breach of implied warranty 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). The court granted Federal Cartridge’s motion as to all other claims—i.e., defective design, defective warning, negligence, and breach of express warranty.
Shotgun shells consist of a plastic hull and a metal head with a primer, which are attached to one another by a crimping process. The shells contain a powder charge, a wad and shot cup, and bbs. The end of the plastic hull is folded to hold the 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 but leaving the plastic hull and metal head otherwise intact in the shotgun’s chamber.
According to the court, it has long been known to ammunition manufacturers, like Federal Cartridge, that the plastic hull of a shotgun shell can separate from the metal head during discharge. This is called “hull separation.” But, aside from these allegations, Federal Cartridge manufactured over 130 million H121 shells—which were at issue here—without a single incident of hull separation being reported.
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.” For the uninitiated, like this author, a break-action shotgun ejects spent shells from the barrels by “breaking” the gun at a hinge action where the barrels meet the gun receiver. This exposes the chambers and automatically ejects the spent shells by catching the lip of the metal head and flinging it free of the chamber as the two sides of the gun separate at the hinge.
The Silver Pigeon’s manual warns users to hold the barrels up to the light and look down them to make sure that they are free of any obstructions. Federal Cartridge’s H121 packaging contains a similar warning. And Mr. Barben testified that checking for obstructions is an important part of firearm safety.
As Mr. Barben began the hunt, he loaded two Federal Cartridge shells into the twin barrels of his Silver Pigeon. A bird flushed near Mr. Barben and one of his companions; both fired, with Mr. Barben’s shot coming from his lower barrel. According to Mr. Barben, nothing felt amiss—his Silver Pigeon shot exactly as it had many times before.
Mr. Barben broke the action of his shotgun to eject the spent shell from the lower chamber. Although he did not watch the spent shell eject, Mr. Barben knew that it did because he saw 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 a strange recoil, severely injuring his left hand. The hunting guide immediately removed the “live” shell from the top chamber to make it safe, but the gun fell apart in her hands due to the extensive damage.
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.
Although Mr. Barben did not identify a specific manufacturing defect, the court held that Mr. Barben presented sufficient evidence to create an inference that Federal Cartridge’s ammunition was unreasonably dangerous. According to the court, Mr. Barben could not identify a specific defect because the entire shell was not recovered from the site of the barrel explosion. 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 barrel explosion resulted from a barrel obstruction caused by a defect in the first shell Mr. Barben fired. 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 shotgun’s barrel instead of being expelled with the metal head when Mr. Barben broke the action after the first shot. This obstruction was then struck by Mr. Barben’s second shot, causing the shot 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-guage. 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.
As to the remaining claims, the court entered summary judgment in Federal Cartridge’s favor. There was absolutely no evidence of defective design. In fact, Federal Cartridge had manufactured over 130 million shells without another incident, and Mr. Roster offered no opinion regarding an alternative, safer design. Both Federal Cartridge and Beretta provided sufficient, conspicuous warnings to adequately alert sophisticated users like Mr. Barben of the dangers of barrel obstructions. And Mr. Barben presented no evidence to support either his negligence or breach of express warranty claims.
Federal Cartridge pitched a shutout for nearly seven full years. To the delight of in-house counsel, presumably, it manufactured over 130 million shells without a single reported hull separation. If true, and there’s appears to be no reason to doubt that claim, it’s quite an achievement of design.
But nobody’s perfect—at least they can’t expect to remain perfect forever. The key to minimizing manufacturing risk is to continually strive for perfection, even though it may elude you.
We’ll keep an eye on this and other products issues here at the Monitor.