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Barben v. Beretta USA Corp.

United States District Court, D. Utah, Northern Division

December 18, 2017

JACOB SEAN BARBEN, Plaintiff,
v.
BERETTA USA CORP., a Delaware Corporation; SPORTSMAN'S WAREHOUSE, INC., a Utah Corporation; and FEDERAL CARTRIDGE COMPANY, a Minnesota Corporation, Defendants.

          MEMORANDUM DECISION AND ORDER ON FEDERAL CARTRIDGE COMPANY'S MOTION FOR SUMMARY JUDGMENT

          DAVID NUFFER, UNITED STATES DISTRICT JUDGE.

         This case arises from injuries Plaintiff Jacob Sean Barben sustained when his shotgun's barrel burst upon firing.[1] Mr. Barben asserts claims against Defendant Federal Cartridge Company (“Federal Cartridge”) for strict liability (defective manufacture, design, and warning), negligence, and breach of express and implied warranties.[2] Federal Cartridge seeks summary judgment on each of Mr. Barben's claims.[3]

         Because genuine issues of material fact exist regarding Mr. Barben's claims for strict liability (defective manufacture) and breach of implied warranty, Federal Cartridge's Motion for Summary Judgment[4] is DENIED in part. However, because the undisputed facts demonstrate that Federal Cartridge is entitled to judgment as a matter of law on Mr. Barben's other claims, Federal Cartridge's Motion for Summary Judgment[5] is GRANTED in part.

         Table of Contents

         STANDARD OF REVIEW ............................................................................................................ 2

         UNDISPUTED MATERIAL FACTS ............................................................................................ 3

         DISCUSSION ............................................................................................................................... 13

         Genuine issues of material fact preclude summary judgment on Mr. Barben's strict liability (defective manufacture) and breach of implied warranty claims ............ 14

         Federal Cartridge is entitled to summary judgment on Mr. Barben's strict liability (defective design) claim ........................................................................................ 17

         Federal Cartridge is entitled to summary judgment on Mr. Barben's strict liability (defective warning) claim ..................................................................................... 18

         Federal Cartridge is entitled to summary judgment on Mr. Barben's negligence claim .. 20

         Federal Cartridge is entitled to summary judgment on Mr. Barben's breach of express warranty claim ...................................................................................................... 24

         ORDER ......................................................................................................................................... 24

         STANDARD OF REVIEW

         Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[6] A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[7] In determining whether there is a genuine dispute as to a material fact, the factual record and all reasonable inferences drawn therefrom are viewed most favorably to the nonmovant.[8]

         The moving party “bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”[9] But “[w]hen, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.”[10] “To avoid summary judgment, the nonmovant must [then] establish, at a minimum, an inference of the presence of each element essential to the case.”[11]

         UNDISPUTED MATERIAL FACTS[12]

         1. Shotgun shells consist of a plastic hull and a metal head with a primer. These are attached to each other by a process of crimping the metal head to the plastic hull. The shells contain a powder charge, a wad and shot cup, and bbs. The end of the plastic hull is folded to contain the bbs.[13]

         2. Upon firing, the primer ignites the powder charge, which shoots the wad and shot cup and the bbs through the folded end of the plastic hull, expelling the shell's contents out the shotgun's barrel but leaving the plastic hull and metal head otherwise intact in the shotgun's chamber.[14]

         3. It has long been known to ammunition manufacturers that the plastic hull of a shotgun shell can separate from the metal head during discharge, a phenomenon known as “hull separation.”[15]

         4. Federal Cartridge manufactures shotgun shells, including 12-gauge shells for use in 12-gauge shotguns.[16]

         5. Since 2010, Federal Cartridge has manufactured over 130 million H121 shells. The ammunition Mr. Barben was using at the time of the barrel explosion was a Federal Cartridge H121 6 shell, of which sub-type over 30 million shells were manufactured.[17]

         6. Of the 130 million H121 shells that Federal Cartridge manufactured since 2010, there are no reports of any other alleged hull separations from either internal testing or external field complaints with H121 ammunition.[18]

         7. The packaging for Federal Cartridge's H121 6 ammunition states:

WARNING: to avoid serious injury . . . (2) always be sure barrel is free of any obstructions; the barrel should be checked in case of light recoil, or an unusually loud or weak sound heard during firing.[19]

         8. Mr. Barben is an experienced sportsman and has shot shotguns, including his Beretta Silver Pigeon shotgun.[20]

         9. Mr. Barben is very familiar with the different types of ammunition for shotguns.[21]

         10. Mr. Barben was shooting a Beretta Silver Pigeon shotgun at the time of the barrel explosion.[22]

         11. The Beretta Silver Pigeon is a break-action shotgun, meaning spent shotgun shells are ejected 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 shell 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.[23]

         12. Mr. Barben learned when he was 15 years old that gun barrels can become obstructed. He testified:

It taught me a lesson at a young age to always check and make sure your gun is in good shape before you go out and fire. So that would be something that I tried to do . . . Typically, once I am hunting and I've given my gun a look-over, I feel confident that it's in good operating procedure, if something feels off or feels different or it sounds funny, I'll check it over again, but so long as it's operating as its intended, I don't usually continue to look over my gun” because “I don't feel like I should have to . . .[24]

         13. Mr. Barben's understanding is that “[t]here's a lot of ways that things like this could cause an accident. Th[ere are] a lot of things that could cause an obstruction.”[25]

         14. Mr. Barben's understanding is that “most” firearm manuals “say to check for obstructions when you're loading the shotgun.” He testified that it is important to check a shotgun's barrels because “[y]ou don't want something in your barrel” because “[i]t could malfunction” and “you could get injured.”[26]

         15. The Beretta Silver Pigeon's manual states, in the section for “LOADING AND FIRING”:

Hold the barrels up to the light and look down the barrels to make sure that they are free of any obstructions.

         The manual does not say it is okay to check the barrels before starting the day, or when the operator receives an unusual report upon firing, as opposed to in-between every time that the user is loading.[27]

         16. Mr. Barben testified as follows with respect to the Beretta Silver Pigeon's instructions:

I don't feel like [these warnings] are reasonable in every hunting environment . . . These instructions are indicating that you should look down the barrel before you fire a second shot. That would seem impractical to me as a hunter . . . If a hunter was told, ‘You have to look down this barrel after every shot to fire it, ' I doubt that that marketing campaign would be successful for Beretta or any other manufacturer.[28]

         17. Mr. Barben testified that, assuming there had been an obstruction, “if I looked down the barrel [prior to shooting], I probably would have seen something there” and not fired the shotgun.[29]

         18. Mr. Barben and his colleagues purchased a factory-sealed case of 12-gauge Federal Cartridge shells for use in a shooting activity about a week before the barrel explosion. The box had no other shells except the 12-gauge Federal Cartridge shells that came originally in the box, and the box had been in Mr. Barben's gun safe for that week.[30]

         19. When the group arrived at the site of their shooting activity, everyone grabbed a handful of the shells from the previously factory-sealed case to carry with them as they hunted.[31]

         20. Mr. Barben put his handful of shells in his specially designed jacket pocket.[32]

         21. All but one of the shooters that day were using Mr. Barben's guns, and neither Mr. Barben nor any of the other shooters own a 20-gauge shotgun. The other shotgun used that day was also a 12-gauge shotgun.[33]

         22. As they began the hunt, Mr. Barben pulled two maroon Federal Cartridge shells from his pocket and loaded the two shells in the two barrels of his Beretta Silver Pigeon shotgun.[34]

         23. A bird flushed near Mr. Barben and one of his companions. Both fired at the bird. Mr. Barben shot at the bird out of his lower barrel. Nothing felt amiss about the shot to Mr. Barben-it felt the same as when he had shot the Beretta Silver Pigeon many times before.[35]

         24. As was his normal practice, Mr. Barben broke the action of his shotgun to eject the spent shell from the lower chamber.[36]

         25. Mr. Barben did not watch the spent shell eject, but knew that it did, as he saw that the chamber was clear.[37]

         26. After walking a few yards another bird flushed, Mr. Barben fired again, and the shot exploded out the left side of the barrel with a strange recoil, severely injuring his left hand.[38]

         27. Immediately after Mr. Barben was injured, the hunting guide, Stephanie, carefully removed the “live” shotgun shell from the top chamber of Mr. Barben's gun to make the gun safe, but the gun fell apart in her hands due to the extensive damage.[39]

         28. Law enforcement arrived on the scene, took statements from the witnesses, and gathered the exploded shotgun parts found in their search.[40]

         29. Over seven months later, on June 3 and 12, 2015, Mr. Barben and others returned to the scene to conduct an extensive search for any possibly relevant evidence. They brought a metal detector to look for some of the shotgun's missing pieces.[41]

         30. During the June 12, 2015 excursion, someone found a Federal Cartridge shotgun shell plastic hull, which was separated from its metal head and crumpled up on the end that would normally be attached to the metal head. The crumpled-up end also had many small, circular indentations that appeared to Mr. Barben's expert witness, Tom Roster, as having been made by bbs fired from a shotgun shell.[42]

         31. The damage to the end of the plastic hull that would be attached to the metal head was extensive and disallowed Mr. Roster from investigating how it was held in place.[43]

         32. The metal head that had separated from the plastic hull found at the site was never found. Without it, Mr. Roster could not say precisely why or how the hull separation occurred.[44]

         33. Mr. Roster has been retained by and consulted with Federal Cartridge on many occasions, including on the design of some of its shells, and he has knowledge that Federal Cartridge's shotgun shells have experienced hull separation.[45]

         34. Mr. Roster is not a warnings expert, and his expert report contains no opinions regarding a warning defect.[46]

         35. Mr. Roster is not a warranties expert, and his expert report contains no opinions regarding a breach of warranty.[47]

         36. Mr. Roster's expert report contains no opinion regarding a design defect or an alternative, safer design in relation to Federal Cartridge's shotgun shells. And he testified:

There's no design defect in my opinion. It's just that when you make millions and millions of these multi-piece structures and you can have slight negatives like out-of-round base wads or things aren't crimped together quite right once in a while, once in a great while, you can have these hull separation events.[48]

         37. Mr. Roster testified:

I don't see that [the subject shell is] different from the manufacturer's design or specifications at all. I mean, it's just a typical tube that somehow unfortunately became separated.[49]

         38. Mr. Roster does not know what the subject shell's condition was when it left the factory, and he cannot say what caused the tube to become separated.[50]

         39. Mr. Roster testified that he “ha[s] no evidence that [Federal Cartridge] didn't” use reasonable care in designing, manufacturing, testing or inspecting the subject ammunition.[51]

         40. Mr. Roster testified:

[A]t the time of his injury, [Mr. Barben] was a former employee of Sportsman's Warehouse and was a very experienced hunter and marksman. As a result, [he] had an advanced knowledge of firearms, firearm operation, and firearm safety.[52]

         41. Hull separations have been written about for years in popular shotgunning periodicals and books, and are commonly discussed among trap and skeet shooters. While relatively rare, they have occurred to all shotgun shell manufacturers Mr. Roster has consulted for, including Federal Cartridge.[53]

         42. Mr. Roster has studied hull separation events and has seen the phenomenon personally and worked with and heard from others who have experienced it as well, including with Federal Cartridge ammunition. Mr. Roster has personally experienced at least a dozen hull separations with Federal Cartridge shotgun shells and has retained physical examples of some of these.[54]

         43. Mr. Roster, reviewed and considered the evidence, including physical evidence, and the observations and testimony of witnesses at the scene, to understand the sequence of events concerning Mr. Barben's shots and determine what possible scenarios could account for the barrel explosion.[55]

         44. As relevant to Mr. Roster's conclusions, the physical evidence included the shotgun, including its failure point, and measurements taken thereof; the ammunition box purchased on the day of the hunting party, including measurements and investigation of one of the rounds from the box; shotgun shell components recovered from the scene of the explosion, including the spent hull from Mr. Barben's second shot, which was removed from Mr. Barben's gun by the hunting guide immediately after the explosion; and a plastic hull, separated from the metal head, bearing impressions that appear to Mr. Roster as to having been created by the plastic hull being struck by a group of bbs.[56]

         45. As relevant to Mr. Roster's conclusions, the witness's testimony included consistencies from the six witnesses at the site-that Mr. Barben shot, then broke the action to eject the spent shell, reloaded, closed the action, walked a short distance, and fired the shot that exploded.[57]

         46. Mr. Roster concluded that the first Federal Cartridge shell Mr. Barben fired was defective and experienced a hull separation, 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 his first shot. This obstruction was then struck by Mr. Barben's second shot, causing the shot to explode out the side of the barrel.[58]

         47. Mr. Roster considered the possibility that Mr. Barben loaded a 20-gauge shell instead of a 12-gauge shell and concluded that this was inconsistent with the physical evidence and the sequence of events, as attested by the witnesses at the site.[59]

         48. Mr. Roster concluded that the sequence of events and his examination of the unfired 12-gauge rounds and the shotgun-without considering the plastic hull found separated from its metal head at the site-allow him to conclude with certainty that no other explanation can exist for the barrel explosion.[60]

         49. Mr. Roster testified that the later recovered plastic hull from the site, if it was the hull from Mr. Barben's first shot that separated and became lodged in the barrel, adds further support to his conclusion.[61]

         50. Hull separations can occur for a few reasons, including but not limited to: the metal head not being sufficiently crimped onto the plastic hull; the metal head partially splitting upon firing, causing it to lose its grip on the plastic hull; problems with the shape or construction of the base wad, which allows expanding powder gases to forcefully blow between the exterior of the base wad and the interior of the plastic hull wall or the interior of the metal head, causing the metal head and plastic hull to separate; and the plastic hull being cut or severed completely around its circumference at the top edge of the metal head's skirt.[62]

         51. Hull separations can be undetectable to a sportsman, even if he or she sights down the barrel after a shot. The plastic hull-having discharged its contents through the front folded end and having separated from its metal head-becomes a cylinder, the thin ...


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