Opinion
Case No. 1:18-CV-00230
2020-07-09
Christina TOSSETH, individually and as next best friend of Jaide Tosseth, deceased, Plaintiff, v. REMINGTON ARMS COMPANY, LLC and Beretta U.S.A. Corp., Defendants.
Jeffrey Scott Weikum, Weikum Law, PLLC, Bismarck, ND, for Plaintiff. Craig A. Livingston, Pro Hac Vice, Livingston Law Firm, Walnut Creek, CA, Larry L. Boschee, Zachary E. Pelham, Pearce & Durick, Bismarck, ND, for Defendants.
Jeffrey Scott Weikum, Weikum Law, PLLC, Bismarck, ND, for Plaintiff.
Craig A. Livingston, Pro Hac Vice, Livingston Law Firm, Walnut Creek, CA, Larry L. Boschee, Zachary E. Pelham, Pearce & Durick, Bismarck, ND, for Defendants.
ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Daniel M. Traynor, District Judge
[¶1] THIS MATTER comes before the Court on a Motion for Summary Judgment by Defendant, Beretta U.S.A. Corp. ("Beretta") filed on March 13, 2020. Doc. No. 37. Plaintiff, Christina Tosseth ("Tosseth") submitted a Response to the Motion for Summary Judgment on May 1, 2020. Doc. No. 50. Defendant's Reply Memorandum in Support of Motion for Summary Judgment was filed on May 15, 2020. Doc. No. 55. The Plaintiff was granted leave to file a Sur-Reply on June 1, 2020. Doc. No. 60. [¶2] For the reasons set forth below the Defendant's Motion for Summary Judgment is GRANTED, in part, and DENIED, in part.
This case originated in Burleigh County District Court. On November 13, 2018, Tosseth filed a Complaint in Burleigh County District Court. See 08-2018-CV-02944, Doc. No. 1. The same day, Remington Arms removed the case to this Court. Doc. No. 1. Remington was subsequently dismissed from the case on February 27, 2020. Doc. No. 34.
FACTUAL BACKGROUND
[¶3] The facts are viewed in the light most favorable to Plaintiff, the non-movant, in a motion for summary judgment. Krosch v. JLG Indus., Inc., 590 F. Supp.2d 1169, 1173 (D.N.D. 2008).
[¶4] On October 16, 2016, Andrew Tosseth ("Mr. Tosseth") and his three children, including his then 15-year-old son Ethan, then 14-year-old daughter Jaide, and then 11-year-old son Monte, were recreationally target shooting at the MacLean Bottoms Gun Range in rural Burleigh County, North Dakota. Doc. No. 37-3, pp. 37-38. The children had been to MacLean Bottoms at least forty times prior to that day with their father. Doc. No. 37-3, p. 84. That morning, the family set up three tables at the range, with Monte on the far left, Jaide in the middle, and Ethan and Mr. Tosseth shooting from a table on the right of Jaide.
[¶5] Mr. Tosseth's youngest son, Monte, was shooting a Beretta U22 NEOS .22 caliber pistol ("NEOS pistol"), which Mr. Tosseth had purchased for him for Christmas that year. Doc. No. 37-3, p. 26. Mr. Tosseth had also purchased identical ones for Ethan and Jaide. Id. While target shooting, Monte experienced an issue with the NEOS pistol, verbalizing to his father that it was either jammed or there was a shell stuck in it. Id. at p. 167. Mr. Tosseth requested his older son, Ethan, to go to Monte's table to try to get the cartridge out of Monte's pistol. Id. at p. 168. Ethan was unsuccessful in removing the cartridge, so he requested assistance from Mr. Tosseth. Id. Mr. Tosseth then took the pistol back to his table. Id. He testified he was unsure if the cartridge was live or spent at the point when he retrieved it from Monte's table, so he treated it as if it were live. Id. at p. 183.
[¶6] While back at his table, Mr. Tosseth attempted to get the cartridge out first with a screwdriver, but after the screwdriver slipped and hit his hand, he attempted to remove the cartridge with a pocketknife, which he bent trying to get the cartridge out. Id. at pp. 178, 190. Mr. Tosseth testified he shot the pistol downrange approximately 12 times. Id. at 179. He further testified that on each of the 12 trigger pulls he felt the resistance of a normal trigger pull. Id. at p. 183. Mr. Tosseth testified he believed he was trying to extract a spent cartridge casing at this point. Id. He also testified he saw a firing pin mark on the cartridge. Id. at p. 205.
[¶7] During most of the time Mr. Tosseth was working with Monte's NEOS pistol, he was pointed toward the targets. Doc. No. 37-7, at 9:46:12. However, during the seconds before the fatal incident, Mr. Tosseth is seen turning his body so that his shoulders and the NEOS pistol are aimed across the row of shooting tables Id. at 9:46:52. It is in this position that the NEOS pistol discharged , striking and killing Jaide Tosseth. Id. at 9:47:01. The pistol then cycled normally, ejecting the spent incident cartridge casing onto the ground. Id. No party or law enforcement officials recovered the cartridge casing. Id.
The parties dispute if Andrew Tosseth pulled the trigger.
[¶8] After the incident, the Burleigh County Sheriff's Department contacted North Dakota Crime Lab Technician Lamonte Jacobson to assist in test-firing the subject pistol to determine if it would fail to fire a cartridge. Doc. No. 52-11, p. 23. Jacobson and his co-worker Troy Goetz test-fired the pistol 120 times. Id. at p. 59. Each magazine held ten rounds, totaling the test-fire of 12 magazines. Id. Jacobson noted during the test-firing of the subject pistol, five random cartridges of the first 40 failed to detonate. Id. at p. 62. Jacobson testified he examined the cartridges, noting there was no evidence the firing pin had struck these cartridges. Id. at p. 71. Jacobson testified he experienced two failures-to-eject in the next 80 rounds. Id. at p. 74. Jacobson stated the cartridges were not stuck in the chamber, but merely "caught in the mechanism." Id. at p. 75. He testified that he just shook the pistol to get the bullets to fall out. Id. Jacobson never made a determination as to what caused the cartridges to failure to fire or eject, as he testified that was outside the scope of his examination. Id. at p. 45.
[¶9] On February 15, 2019, the subject pistol was examined at North Star Imaging in Rogers, Minnesota. Doc. No. 52-8. Present were Kris Carson, P.E., Director Product Affairs, Remington Arms, Jim Ronkainen, expert for Remington, Luke Haag and Mike Shain, experts for Beretta, Chris Brand on behalf of the Tosseth family, and counsel for all parties. Id. Several tests and examinations were conducted on the subject pistol, with each expert ultimately including their opinions on the subject pistol and circumstances involving the incident in their respective reports. Id. While Tosseth's expert, Henry Belk, did not attend this meeting, he did review photographs of the subject pistol taken at this meeting and also reports from experts who attended the meeting in person in rendering his opinion that the U22 NEOS pistol is defective in design and manufacture. Doc. No. 52-10.
ANALYSIS AND DISCUSSION
I. STANDARD OF REVIEW
[¶10] The Court will grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An issue is ‘genuine’ if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party." Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A fact is material if it ‘might affect the outcome of the suit.’ " Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). Courts must afford "the nonmoving party the benefit of all reasonable inferences which may be drawn without resorting to speculation." TCF Nat'l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016) (quoting Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014) ). "At summary judgment, the court's function is not to weigh the evidence and determine the truth of the matter itself, but to determine whether there is a genuine issue for trial." Nunn v. Noodles & Co., 674 F.3d 910, 914 (8th Cir. 2012) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ).
[¶11] The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). If the movant demonstrates the absence of a genuine issue of material fact, "[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Id.
II. RULE 702 AND DAUBERT CHALLENGE
[¶12] Rule 702 of the Federal Rules of Evidence sets forth the standard for expert testimony, allowing an expert to testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Rule 702 requires that the trial judge act as a "gatekeeper," admitting expert testimony only if it is both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial court is given broad discretion in its determination of relevance and reliability. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ; Olson v. Ford Motor Co., 481 F.3d 619, 626 (8th Cir. 2007).
[¶13] " Rule 702 does not permit a judge to weigh conflicting expert testimony, admit the testimony that he or she personally believes, and exclude the testimony that he or she does not personally believe." Olson, 481 F.3d at 626. "Nor does Rule 702 permit a judge to exclude expert testimony just because it seems doubtful or tenuous." Id. "The Supreme Court has been clear about how infirmities in expert testimony should be exposed: ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ " Id. (citing Daubert, 509 U.S. at 596, 113 S.Ct. 2786 ).
[¶14] "Questions of an expert's credibility and the weight accorded to his testimony are ultimately for the trier of fact to determine." Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1183 (8th Cir. 1997) (citing Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990) ). "Only if an expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." Id. (citing Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) ). The Eighth Circuit Court of Appeals has established three prerequisites that must be satisfied for expert testimony to be admitted under Rule 702 :
First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, ‘the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires ....’
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal citations omitted).
[¶15] The Defendants seek to exclude the testimony of the Plaintiff's expert, Henry Belk, on the ground that he lacks qualifications to give an opinion as to matters in this case, including whether the NEOS pistol was defectively designed and/or manufactured. Specifically, Beretta asserts Belk has never worked for a firearms manufacturer, has never taken any classes in engineering or metallurgy, has never made a .22 pistol, and had never heard of or seen a Beretta U22 NEOS pistol before this litigation. Doc. No. 37, pp. 14-15. In addition, Beretta argues the case materials Belk relied upon to render his opinions were slim. Id. It argues Belk only reviewed the deposition testimony of Lamonte Jackson from the North Dakota State Crime Lab and he never reviewed the depositions of Andrew Tosseth, Ethan Tosseth, or Burleigh County Sheriff's Deputies, all of whom were involved in the tragic incident or shortly thereafter. Id. at p. 37. Beretta argues that Belk also never asked for nor received any NEOS component part design drawings, specifications, or any other documents containing information about materials used or NEOS component dimensions. Id. at p. 38. It also asserts Belk never received information related to the processes surrounding the design and testing of the NEOS pistol. Id. What appears to be most concerning to Beretta is that Belk never examined the subject NEOS pistol, only examining an exemplar NEOS pistol, Ethan Tosseth's, provided to him by Plaintiff's counsel. Id. at pp. 18-19.
[¶16] Tosseth responds that Belk has the requisite experience and knowledge to provide expert opinion testimony related to the NEOS pistol. Tosseth argues Belk has been a gunsmith and gun maker from 1969 to present, modifying, repairing, rebuilding, and customizing "thousands of thousands of guns", including rifles, shotguns, and handguns. Doc. No. 50, p. 19. In addition, Tosseth asserts Belk has developed gun patents and was the author of a book titled Unsafe by Design – Forensic Gunsmithing and Firearms Accident Investigations. Id. Additionally, Tosseth argues Belk's opinion that the NEOS pistol was defectively designed was based on his examination of an exemplar gun, review of materials surrounding the subject gun, testing, and is backed up by the testing conducted by Beretta's own expert, Lucien Haag. Doc. No. 60, ¶3. Tosseth also reminds the Court that Rule 702 "does not require anything approaching absolute certainty" and "where one person sees speculation ... another may see knowledge." Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671-672 (6th Cir. 2010).
[¶17] The Court has reviewed Belk's written report, discovery deposition, declaration, and CV, and is satisfied that Belk has the necessary scientific, technical, or other specialized knowledge to help the triers of fact understand the evidence and address critical factual issues in dispute. While Belk does not have a degree in engineering, he does have the necessary training, background, and experience required to opine on the matters disclosed in his written reports. Belk has been modifying, repairing, rebuilding, and customizing a vast array of firearms for over fifty years, including handguns, rifles, and shotguns. Doc. No. 51, ¶¶6-7. He attests he has worked on thousands and thousands of firearms. Id. Most importantly, Belk attests he has experience working on and is familiar with a firearm's extractor and disconnector mechanisms, two mechanisms which he opines were defectively designed in the NEOS pistol in this case. Id. at ¶8.
[¶18] In addition, the Court notes Belk has provided expert testimony in over fifteen cases in both federal and state district courts. Doc. No. 37-11. Many of these cases involved firearm manufacturers, including Beretta, Remington, and Winchester, among others. Id. Whether Belk was retained by the defense, prosecution, or plaintiffs in any of these cases is irrelevant; what matters is that he has been called upon numerous times by numerous professionals to provide expert opinions on firearms to assist a court or jury.
[¶19] Belk has also relied upon sufficient facts from this case in rendering his opinion the NEOS pistol is defectively designed. Even though Belk did not examine the subject pistol himself, he reviewed photographs of the subject pistol and reviewed reports and other materials from experts and the State Crime Lab Technician who handled the subject pistol. Additionally, he performed testing and examinations on an exemplar gun identical to the subject pistol, wherein he noted "it was immediately apparent that the extractor was not functioning properly and in fact could not function properly given its design." Doc. No. 51, ¶13. He attests his examination and testing confirmed his opinion. Id. at ¶14. In addition, he asserts Beretta's own expert, Haag, validated his opinion that the extractor was defective in the testing videos Haag conducted. Id. He also asserts the deposition testimony of North Dakota State Crime Lab Technician Jacobson also lends support to his theory because Jacobson experienced multiple failures to fire when testing the subject NEOS pistol. Id. at ¶20. Belk also reviewed the document prepared by Haag entitled "Tosseth Case Tests and Observations," which Belk asserts "identifies the problems with the extractor that I identified in my testing, my report, and my deposition." Id. at ¶18. Belk attested that he also learned of facts surrounding the incident that are relevant to his opinion about the allegedly defective extractor, including that a screwdriver, fingernail, and pocketknife were all used to attempt to pry the cartridge out of the NEOS pistol that day through other documents, such as the expert report of Beretta's expert, Michael Shain. Doc. No. 37-2, p. 135.
[¶20] Belk's testimony is based on sufficient facts or data, and his testimony is relevant, reliable, trustworthy, and the product of reliable principles and methods. Ultimately, questions as to Belk's credibility and the weight to be given to his testimony is for the jury to determine. Even if Belk may have deficiencies and weaknesses in his proffered opinions, as the United States Supreme Court recognized in Daubert, the appropriate means of attacking any expert witness opinion is through vigorous cross-examination and the presentation of contrary evidence, not the wholesale exclusion of such testimony at trial. See Olson v. Ford Motor Co., 411 F.Supp.2d 1137, 1145 (D.N.D. 2006) ; see also Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
[¶21] The Court will listen carefully to the testimony of all expert witnesses at trial to ensure none attempt to broaden the scope of their disclosed opinions. Further, if the testimony of any expert witness at trial is duplicative or cumulative of the testimony of other expert witnesses in any manner, the testimony will be excluded at that time.
III. PRODUCT LIABILITY CLAIMS
[¶22] Tosseth's Complaint asserts product liability claims against Beretta for the NEOS pistol. Doc. No. 1-1. More specifically, Tosseth asserts "the firearm manufactured by Beretta U.S.A. Corp. failed to perform appropriately thereby causing or contributing to the failure to fire." Id. at ¶10. Tosseth alleges the "failure of the product to perform appropriately was a result of the manufacture, construction, design, assembly, testing, failure to warn/instruct or other similar product liability issues," and "[t]hese actions or inactions on the part of Beretta U.S.A. Corp. also constitute negligence and breach of duty to plaintiffs." Id. Tosseth has therefore alleged product liability claims sounding in both strict liability and negligence. The Court must address both theories.
A. North Dakota Products Liability Act
[¶23] The Court begins its analysis with North Dakota's Products Liability Act. See N.D.C.C. chap. 28-01.3. A "products liability action" is a defined term, meaning:
[A]ny action brought against a manufacturer or seller of a product, regardless of the substantive theory or theories upon which the action is brought, for or on account of personal injury, death or property damage, caused by or resulting from manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product.
[¶24] Section 28-01.3-06, N.D.C.C., provides: "[n]o product may be considered to have a defect or be in a defective condition unless at the time the product was sold ... there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer." Id. § 28-01.3-06. "Unreasonably dangerous" is a defined terming meaning that "the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer ... or user of that product in that community considering the product's characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular buyer [or] user." Id. § 28-01.3-01(4).
[¶25] In 1995, the North Dakota Legislature amended its Products Liability Act to further "establish clear and predictable rules with respect to certain matters relating to products liability actions." Id. § 28-01.3-07(2). Two new sections were adopted, sections 28-01.3-08 and 28-01.3-09, with the purpose:
to clarify and improve the method of determining responsibility for the payment of damages in products liability litigation; to restore balance and predictability between the consumer and the manufacturer or seller in product liability litigation; to bring about a more fair and equitable resolution of controversies in products liability litigation; to re-enact a statute of repose to provide a reasonable period of time for the commencement of products liability litigation after a manufacturer or seller has parted with possession of its product; to address problems that have been created by judicial interpretation of our previous enactments; to enact, with minor changes, several provisions of former chapter 28-01.1; and to simplify and provide an increased degree of certainty and predictability to our products liability laws.
Id. § 28-01.3-07(3).
[¶26] The 1995 North Dakota Legislature adopted a rebuttable presumption against defects if the product has been produced in conformity with government or applicable industry standards. Section 28-01.3-09 provides:
There is a rebuttable presumption that a product is free from any defect or defective condition if the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were in conformity with government standards established for that industry or if no government standards exist then
with applicable industry standards, which were in existence at the time the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were adopted.
Id.
[¶27] The North Dakota Products Liability Act applies to all product liability claims whether based on negligence or strict liability. N.D.C.C. § 28-01.3-01(2). See also Johnson v. John Deere Co., 935 F.2d 151 (8th Cir. 1991).
B. Theories of Product Liability Actions
[¶28] The North Dakota Supreme Court has "recognized that negligence and strict liability in tort are separate and distinct theories of products liability and that each theory has a different focus." Oanes v. Westgo, Inc., 476 N.W.2d 248, 253 (N.D. 1991). Strict liability focuses on whether a product is defective and unreasonably dangerous, whereas negligence focuses on whether the manufacturer's conduct falls below the standard of reasonable care. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D. 1994).
a. Failure to Warn/Instruct
[¶29] Under both negligence and strict liability theories, liability may be imposed because of inadequate warnings. Crowston, 521 N.W.2d at 406 ; Morrison v. Grand Forks Housing Authority, 436 N.W.2d 221, 224 (N.D. 1989). The North Dakota Supreme Court has said that recovery sought under a negligent failure-to-warn theory and recovery sought under a strict liability theory of marketing a product which is defective and unreasonably dangerous because it is not accompanied by adequate warnings are two separate and distinct theories. Morrison, 436 N.W.2d at 224. "Under a negligence theory, the question is whether or not the conduct of the manufacturer or seller in providing a certain warning with its product, or in providing no warning at all, falls above or below the standard of reasonable care." Id. "Under a strict liability theory, the question is whether or not the warnings, if any, which accompany a product are adequate to render the product not unreasonably dangerous to the ordinary user of it." Id.
b. Defect in Manufacture or Design
[¶30] A product liability action may also be based on a negligent or strict liability defect in manufacture or design. In a negligent manufacture or design claim, the Plaintiff must establish the common elements of a negligence action in North Dakota, which are: (1) a duty, (2) breach of that duty, (3) causation, and (4) damages. Krosch, 590 F. Supp.2d at 1176. The manufacturer or seller is not liable absent proof that the product is defective. Oanes, 476 N.W.2d at 253 ; N.D.C.C. § 28-01.3-06. "Therefore, one element of a negligent design claim is that the product is defective or unsafe. A plaintiff must establish that a defendant failed to use reasonable care in designing a product and that this failure resulted in a defective product." Krosch, 590 F. Supp.2d at 1176.
[¶31] A defect in design or manufacture claim may also be based on strict liability. The necessary elements for strict product liability based on a defective condition in a product are: (1) the product was defective in design or manufacture; (2) the defect rendered the product unreasonably dangerous to the consumer; (3) the defect existed when the product left the manufacturer; and (4) the defect was a proximate cause of the plaintiff's injuries. Id. at 1173-74. The mere fact that an accident or incident occurred, standing alone, does not support a claim that a product was defective. Id. at 1174. "Knowledge of the condition of the product and its foreseeable dangerous propensities is imputed to the manufacturer in strict liability design defect cases." Oanes, 476 N.W.2d at 253. As a general rule, a plaintiff is required to prove a product defect through an expert witness. Id.
C. Discussion of Plaintiff's Claims
a. Failure to Warn/Instruct
[¶32] Tosseth asserted a failure to warn/instruct allegation in her Complaint. Doc. No. 1, ¶10 ("The failure of the product to perform appropriately was a result of the manufacture, construction, design, assembly, testing, failure to warn/instruct or other similar product liability issue.") (emphasis added).
[¶33] "Under either theory of recovery, negligence or strict liability, ... the duty to warn does not attach when the danger or potentiality of danger is obvious or is known to the injured person." Morrison, 436 N.W.2d at 224. Beretta argues "the grave dangers associated with Mr. Tosseth's unsafe handling of a firearm are plainly obvious[.]" Doc. No. 37, p. 30. Tosseth fails to respond to this argument in her responses nor does she provide any evidence to refute this notion. In fact, Andrew Tosseth demonstrates, through his own deposition testimony, that he was duly aware of the danger involved in mishandling firearms, specifically, the obvious danger of pointing one at another person. Andrew Tosseth, an experienced shooter, discussed with his children the importance of keeping the muzzle of a gun pointed downrange. Doc. No. 37-3, pp. 62-65. Andrew Tosseth described a specific exercise he would do with his children to help them understand why the muzzle should never be pointed at another person:
Mr. Livingston : Let me get back to this idea, though, that you teach your children about – about always keeping the muzzle of the firearm pointed in a safe direction. When you demonstrated that for them with an empty single-shot rifle, you actually pointed the muzzle at them –
Mr. Tosseth : Mm-hmm
Mr. Livingston: -- And the purpose for that was to demonstrate to them that there was an uncomfortable feeling when the barrel of any firearm is pointed in your direction?
Mr. Tosseth: Yes.
Mr. Livingston: And your instruction to them was to always avoid that; right?
Mr. Tosseth: Yes.
Mr. Livingston: Okay. And that was something that you tried to do yourself, wasn't it?
Mr. Tosseth: Yes.
Doc. No. 37-3, pp. 65-66.
[¶34] Even if the dangers of mishandling the pistol were not obvious, Beretta argues it provided a variety of adequate warnings and instructions which relate to the safe handling of the NEOS pistol. Doc. No. 37, p. 30. Here, the instruction manual to the NEOS pistol provided numerous warnings about the mishandling of the firearm including:
NEVER POINT A FIREARM AT SOMETHING THAT IS NOT SAFE TO SHOOT.
Never let the muzzle of a firearm point at any part of your own body or at another person. This is especially important when loading or unloading the firearm.
Doc. No. 37-4, p. 6.
ALWAYS TREAT A FIREARM AS IT IF WERE LOADED.
Never assume that a firearm is unloaded.
Id.
WARNING: Always keep your finger away from the trigger whenever you do not intend to fire.
Id. at p. 22.
WARNING: Always keep your finger away from the trigger whenever you do not intend to fire. If you are not ready to fire, rotate the manual safety level downward to engage the safety and cover the red dot.
Id. at p. 23.
WARNING: Only point a firearm at something safe to shoot. Never put your finger on the trigger unless you intend to shoot. Never disengage the safety on the firearm unless you intend to shoot.
Id. at p. 24.
[¶35] Andrew Tosseth admitted he never read the U22 Neos instruction manual except for the portions which related to disassembling the pistol. Doc. No. 37-3, p. 57. Initially, Tosseth's expert Belk also conceded he never looked at the NEOS instruction manual before his deposition and he was not asked to form, nor did he form, any opinions about the adequacy of the NEOS instruction manual. Doc. No. 37, p. 31; Belk Depo. at p. 80:1-8. However, when asked at his deposition to review a number of the NEOS instruction manual's warnings and instructions, he also conceded the warnings were "appropriate warnings to people in how to safely handle firearms." Doc. No. 37-2 at pp. 84:15-19.
[¶36] Tosseth's strict products liability and/or negligent failure-to-warn claims suffer, and ultimately fail, due to a lack of evidence to support such claims. The Plaintiff failed to offer any proof or present any evidence of what made the warnings on the NEOS pistol, if any, inadequate so that the firearm was unreasonably dangerous to the ordinary user or that the warnings provided fell below the standard of reasonable care. In addition, the Plaintiff's expert, Belk, did not offer any support for the contention that the warnings were inadequate. With no evidence and no expert witness testimony to support the Plaintiff's claims that the warnings for the NEOS pistol made it unreasonably dangerous, Beretta cannot be held strictly liable or liable for negligence on a failure-to-warn claim. Summary Judgment is granted on the Plaintiff's failure to warn/instruct claims.
b. Manufacturing Defect
[¶37] Turning to the manufacturing defect claims, the Court concludes these claims are also appropriate for summary judgment. Tosseth argues "the extraction issue with the Beretta Neos is not only evidence of a design issue, it is evidence of a manufacturing issue (depending on what position Beretta chooses to take regarding the design in front of the jury[.])" Doc. No. 60, ¶6. However, Tosseth fails to raise a genuine dispute of material fact that the NEOS pistol had a manufacturing defect under either a negligence or strict liability theory. See N.D.C.C. § 28-01.3-06 (providing "[n]o product may be considered to have a defect or be in a defective condition unless at the time the product was sold ... there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.").
[¶38] A manufacturing defect occurs when the product departs from its intended design, whereas a design defect arises when the risk of harm of the current design is unreasonable and could have been reduced or avoided by the use of an alternative design. See Restatement (Third) of Torts: Prod. Liab. § 2 (1998). "Common examples of manufacturing defects are products that are physically flawed, damaged, or incorrectly assembled." Id. at cmt.c. The mere fact that an accident or incident occurred, standing alone, does not support a claim that a product was defective. Burgad v. Jack L. Marcus, Inc., 345 F.Supp.2d 1036, 1041 (D.N.D. 2004). A product defect must be proven through expert testimony. Id.
[¶39] Beretta argues that neither Tosseth nor her expert Belk have offered any evidence to suggest the NEOS pistol has a manufacturing defect. Doc. No. 37, pp. 28-29. Beretta points to Belk's deposition testimony wherein he admitted he "never received nor reviewed – nor did he ask to review-any U22 NEOS design drawing or other document which would have provided him with information about the dimensions, materials composition, heat treatment, surface finishing, or other characteristic of the component parts for that pistol." Doc. No. 37, p. 22; see also Doc. No. 37-2, pp. 57, 123. Beretta also asserts Belk "never received or reviewed any information regarding Beretta U.S.A. Corp.'s development of the U22 NEOS pistol, including its design, testing, or manufacturing process." Doc. No. 37, p. 22; see also Doc. No. 37-2, pp. 57-58. Beretta also points to Belk's deposition testimony where he explicitly stated he cannot offer an opinion as to a manufacturing defect in the NEOS pistol:
Mr. Livingston: Because you don't know what the design specifications are for any of the components on the Neos pistol, you can't say whether or not there's a manufacturing defect at all; isn't that true?
Mr. Belk: Yes, sir.
Mr. Livingston: Okay. So you're not going to render any opinion at trial that there was a manufacturing defect with regard to the Neos pistol, correct?
Mr. Belk: I do not have enough information to make that determination.
...
Mr. Livingston: I just need to know that you have no factual basis to render an opinion that any part of the Neos pistol, including the extractor, somehow failed to conform to the design drawings; isn't that right?
Mr. Belk : That is – that is right.
Doc. No. 37-2, pp. 124, 126-27.
[¶40] Despite the fact that Belk outlined in his Preliminary Expert Report dated December 4, 2019 his belief that the NEOS pistol had a manufacturing defect , Belk has clearly stated he has no factual basis to confirm that belief nor to render an opinion on the same. Tosseth provides no other evidence that the NEOS pistol was defectively manufactured, and no mistake or flaw has been identified in the manufacture of the NEOS pistol purchased by Andrew Tosseth and involved in the incident. Accordingly, summary judgment is warranted on a manufacturing defect claim.
Belk's Report states:
Defect in manufacture –
Further analysis of the exemplar gun's extractor revealed a rounded tip on the extractor instead of a sharp claw.
Examination of the photographs of the subject gun taken during the joint inspection in Minnesota revealed an extractor cut in the right side of the chamber that explains the lack of extraction authority.
Doc. No. 52-10, p. 11.
c. Design Defect
i. Strict Liability
[¶41] Tosseth asserts the NEOS pistol contains design defects. In order to prevail on a strict products liability design defect theory, Tosseth must show: (1) the product was defective in design or manufacture; (2) the defect rendered the product unreasonably dangerous to the consumer; (3) the defect existed when the product left the manufacturer; and (4) the defect was a proximate cause of the plaintiff's injuries. Krosch, 590 F.Supp.2d at 1173-74.
1. The NEOS Pistol was defective in design
[¶42] Beretta argues the NEOS pistol conformed to both industry and governmental standards, and therefore, there is a rebuttable presumption that the pistol was defect-free under N.D.C.C. § 28-01.3-09. As support for this assertion, Beretta offers the declaration of Beretta employee Jason Kellogg. Doc. No. 37-1. Kellogg attests the NEOS pistol received ISO 9001 ("International Standards Organization") certification in 2002. Id. at ¶7. Beretta has maintained this certification. Id. Beretta asserts only a small number of manufactures attain ISO 9001 certification. Doc. No. 37, p. 2. In addition, Kellogg also attests Beretta has complied with industry standards including ANSI/SAAMI Z299.1, setting specific chamber dimension specifications for a .22 LR caliber cartridge, and SAAMI Z299.5, which measures the firearms ability to pass safety tests, including drop tests and jar-off tests. Id. at ¶¶8-9. Lastly, Kellogg asserts the NEOS pistol was designed to pass California's "safe firearm" standard as set out in California Penal Code section 12125 to 12133 and 11 California Code of Regulations sections 968.10, et seq. Id. at ¶10. Beretta also points to Belk's deposition testimony wherein he answered "no, sir" when asked if there were any applicable industry standards to the design or manufacture or testing of the Neos pistol that Belk believed Beretta did not comply with. Doc. No. 37, p. 28; Belk Depo. 97:2-98:1.
[¶43] Tosseth's expert, Belk, was asked about these different standards in his deposition testimony. When asked in his deposition if he would be prepared to talk about standards and regulations related to the design and manufacture of firearms, Belk stated "I think I was quoted in my book there are actually no standards, but there are historical precedent[s]" further stating "I would have to be asked what the regulations are, yes." Doc. No. 37-2, p. 71. When asked about specific regulations, he provided his understanding and/or criticisms of each. For example, Belk stated he did not know if Beretta U.S.A. was ISO 9001 certified but would be surprised if the U22 NEOS pistol in this case was certified. Doc. No. 37-2, p. 90. Belk also expressed criticisms of the SAAMI standard because he asserted "all it does is test the gun several times in different orientations," and noted "it does not test the design itself. There are guns that can fire while they're on safety, and the SAAMI test does not find those." Doc. No. 37-2, p. 92. He also asserted that ANSI/SAAMI standards are "industry within SAAMI, but SAAMI is the industry," further noting, "there are no government requirement or no – no safety requirements at all, only by what is established by SAAMI." Id. pp. 92-93.
[¶44] Instead, Belk asserted the NEOS pistol did not comply with historical standards:
Mr. Livingston : Okay. Are there any applicable industry standards to the design or manufacture or testing of the NEOS pistol that you believe it did not comply with?
Mr. Belk : No, sir. It just did not comply with historical standards. So I don't know where those are written down or if they are. But comparatively, comparing this gun with earlier guns, this gun is deficient.
Mr. Livingston: Deficient in what sense?
Mr. Belk : Deficient in mainly the disconnector and the extractor. They did not operate properly.
Mr. Livingston: All right. And that's-you're referring to some historical anecdotal information?
Mr. Belk: Well, the history of firearms. Go back and look at any gun that's designed like this and its different than this. So the question is, why did this one skip manufacturing steps that other guns accepted? That would be my question. When you look at a comparable gun – and just – you're talking about plinking pistols, High Standard Sport King 4995 in 1950 or whatever it was, those parts are hand-fitted because they need to be in order for the disconnector to work properly.
[¶45] Specifically, Belk argues that even if the NEOS pistol complied with industry standards, two defects are present based on historical standards: (1) the extractor in the NEOS pistol is not cut near enough to the chamber to adequately engage the rim with the extractor hook and pull out unfired cartridges, and (2) when the pistol is out of battery 72 to 74 thousandths of an inch, the disconnector disconnects from the fire control mechanism, which causes confusion to the shooter because it works sometimes and not others.
a. Extractor
[¶46] Tosseth claims that the failure to extract the unfired cartridge from the chamber of the pistol in combination with the failure to fire caused the fatal incident. Belk performed an examination and test of an exemplar NEOS pistol . Belk opines that upon his inspection of the exemplar pistol, "it was immediately apparent that the extractor was not functioning properly and in fact could not function properly given its design." Doc. No. 51, ¶13. Belk's opines the extractor in the NEOS pistol is not cut near enough to the chamber to adequately engage the rim with the extractor hook and pull out unfired cartridges. Doc. No. 52-10, p. 11. Tosseth asserts "the Beretta Neos extractor needs to be positioned just touching the cartridge so that the extractor can slide up under the rim of the cartridge and extract it when the slide is pulled back to remove the unfired cartridge." Doc. No. 50, p. 9. However, Belk claims in the actual design of the extractor slot in the NEOS pistol causes the extractor to be pushed out or away from the cartridge. Id.; Doc. No. 37-2, p. 128.
Belk was given Ethan Tosseth's NEOS pistol to use an exemplar.
[¶47] Additionally, while Belk testified that he would not be surprised to know that the functionality test performed of the subject pistol extracted normal cartridges, he testified the extractor is not cut enough to the rim to extract stuck cartridges, which he asserts is a design defect and the issue in this case, as the Tosseth family was attempting to extract a stuck cartridge. Doc. No. 37-2, pp. 143-144. Belk testified that when he performed testing of the exemplar pistol, his theory was confirmed; the extractor failed to extract the unfired cartridge he placed in the pistol. Doc. No. 37-2, p. 138. Tosseth also asserts Belk's opinion of the extractor defect was corroborated by Beretta's own expert, Haag.
[¶48] In video clips provided to the Court, Tosseth highlights Haag test-firing NEOS exemplar pistols wherein Haag experienced multiple failures to fire. Specifically, Tosseth asserts three essential factors in Haags videos confirm the defect in the extractor: (1) the slide is fully closed when the failure to fire occurs; (2) the slide is then manually pulled back to remove the unfired cartridge; and (3) the unfired cartridge is not extracted by the extractor." Doc. No. 50, p. 10. Tosseth points to Haag's observations throughout the testing videos where he notes at one time the cartridge was so loose it fell out of the chamber, exemplifying the fact that the extractor did not remove an unfired cartridge "that was so loose in the chamber it falls out." Id. at p. 11. Most importantly, Tosseth notes, there were no firing pin marks on the cartridge. Id. at p. 12. Tosseth points to Haag's document entitled "Tosseth Case Tests & Observations" where Haag noted that "[d]uring actual test-firings, some of these cartridges could not be extracted with the normal rearward retraction of the slide," and "[t]he extractor had to be assisted by means of some finger pressure against the extractor." Id. p. 15. In another video, Haag pulls the slide back to show the extractor failed to extract the unfired cartridge, which culminates in Haag attempting to remove the cartridge with his fingernail. Id. p. 16.
[¶49] Tosseth also argues that Belk's opinions are also corroborated by the deposition testimony of North Dakota State Crime Lab Technician Lamonte Jacobson who fired 120 rounds into the subject pistol shortly after the tragic incident. Jacobson testified that after the Burleigh County Sheriff's Department delivered the subject pistol to his office, he test-fired 120 total rounds. Doc. No. 52-11, p. 59. Jacobson testified in the first four ten-round magazine test-fires, five cartridges failed to detonate. Id. at p. 69. Jacobson noted that upon examination of the five cartridges, there was no evidence the firing pin had been struck. Id. at p. 70-71. Jacobson, however, testified he never determined why those five cartridges failed to fire. Id. In the next 80 rounds, he noted two times the cartridges failed to eject. Id. Jacobson noted the bullets were "stuck at different angles" when he pulled the slide back to view the cartridges. He stated that he shook the pistol a little and the cartridges fell out, noting they were not stuck in the chamber but "kind of caught in the mechanism." Id. at p. 75. He testified he did not use anything to pry the cartridges out, instead just shaking the pistol. Id.
[¶50] Tosseth has put forth sufficient credible evidence showing there is a genuine dispute of material fact as to whether the NEOS pistol harbored a design defect.
2. The defect rendered the NEOS pistol unreasonably dangerous to the consumer
[¶51] "Unreasonably dangerous" means that the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product's characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer. N.D.C.C. § 28-01.3-01(4).
[¶52] Beretta argues the subject pistol was not "unreasonably dangerous" even if it contained the alleged ineffective extractor defect. Doc. No. 37, p. 36. To Beretta, "the fact that a cartridge became firmly stuck in the firing chamber does not, in and of itself, make the subject NEOS unreasonably dangerous." Doc. No. 37, p. 35. Beretta asserts "[w]hether a cartridge is stuck in the firing chamber or not does nothing to change the nature of the NEOS pistol – it is still a firearm capable of discharging a bullet out of the barrel at a high rate of speed with potentially fatal results if not handled carefully." Id.
[¶53] Beretta argues the NEOS pistol was not unreasonably dangerous to Mr. Tosseth given his actual knowledge, training, or experience. In particular, Beretta argues:
To be sure, Mr. Tosseth knew that pulling the trigger on what might be a live cartridge, while the muzzle was not pointed in a safe direction, had the potential to cause great danger to those nearby. Mr. Tosseth also knew that engaging the external manual safety on the NEOS pistol would prevent a trigger pull from releasing the firing pin. Finally, he knew how to lock the slide open using the slide catch feature (which would have prevented the slide [and incorporated firing pin] from being anywhere near a chambered cartridge.
Doc. No. 37, p. 36.
[¶54] In countering, Tosseth stressed the importance of an extractor being able to pull out an unfired cartridge from the chamber and why it was even more dangerous on the day of the incident when the failure to extract was combined with a failure to fire. Doc. No. 50, p. 7. Tosseth points to Belk's deposition testimony wherein he also stressed why this design defect makes the NEOS pistol more dangerous than other firearms:
Mr. Livingston: Given the dangers that can occur if a pistol was improperly handled, there was nothing about the Neos pistol on the day of the incident that made it any more dangerous than any other gun he might have been handling, true?
Belk: I wouldn't agree with that. He, obviously, had even taught his boys how to clear a jam; that was attempted several different times. So, when that failed, that puts him in a strange territory. That's what I mean by confusion. Suddenly a gun that didn't shoot also won't clear. Well, that's a confusing thing to any shooter. As a gunsmith, I can pretty well look at it and find out why; but I would think even an experienced shooter would be confused when the extractor didn't work after a misfire.
Doc. No. 37-2, pp. 178-179.
[¶55] Tosseth also appears to offer as evidence of the NEOS pistol being unreasonably dangerous the fact that "there is a serious lack of reliability as to when the Beretta Neos is going to actually leave a firing pin mark when in full battery." Doc. No. 50, p. 21. She points to the videos of Beretta's expert Haag test-firing exemplar NEOS pistols and noting no firing pin marks appear on some cartridges. While Haag opines this issue may be related to dirty or damaged cartridges, Belk's opinion relates to a defect in the extractor. The experts disagree on the cause of this issue. Tosseth argues the NEOS pistol "is not functioning as even the experts in this case expect, much less the public in general, such as the Tosseth family." Doc. No. 50, p. 17.
[¶56] Tosseth has put forth sufficient credible evidence showing there is a genuine dispute of material fact as to whether the extractor defect in the NEOS pistol rendered it unreasonably safe.
3. The defect existed when the product left the manufacturer
[¶57] Remington expert, Jim Ronkainen noted in his report "[a]ll parts of the subject pistol appeared to be in the appropriate factory-installed location as depicted in Figures 5.1.1 through 5.1.4 above and appeared to be in proper working order with no damage." Doc. No. 52-7, p. 13. Remington expert, Kris Carson, also noted in his report "[a]ll parts of the subject pistol appeared to be in the appropriate factory-installed location," and "all operation parts appeared to be in proper working order." Doc. No. 52-8, p. 10.
[¶58] While Tosseth expert, Belk, did not examine the subject pistol personally, he did examine an exemplar pistol. Andrew Tosseth testified that he bought three identical U22 NEOS Beretta firearms, and the exemplar Belk was given was one of the three he bought for his children. Doc. No. 37-3, p. 48. Belk was not the only expert to examine and test exemplar guns; experts for Beretta and Remington also used exemplar guns in their testing, to in part, confirm or deny Belk's theory regarding the extractor.
[¶59] Because all inferences must be given to Tosseth, Tosseth has set forth sufficient credible evidence that the extractor design in both the subject firearm and exemplars existed when they left the manufacture.
4. The defect was the proximate cause of Jaide Tosseth's death
[¶60] "An actor's negligence can only be a proximate cause of an injured party's harm if the negligence was a substantial factor in causing the harm." Reagan v. Hi-Speed Checkwigher Co., No. CIV. A2-90-203, 1993 WL 733715, at *4 (D.N.D. Apr. 20, 1993), aff'd sub nom. Reagan v. Hi-Speed Checkweigher Co., 30 F.3d 947 (8th Cir. 1994). "To be a substantial factor in causing the harm, one must consider whether the actor's conduct created a force that was continuous and active up to the time of the injury or if the conduct created a situation that was harmless until acted upon by other forces." Id. citing See Restatement (Second) of Torts § 433(b) (1965). In establishing causation, "a plaintiff must present affirmative evidence of proximate cause, and may not establish causation solely by discrediting other possible causes." Olson v. Ford Motor Co., No. 4:04-CV-102, 2006 WL 42366, at *3 (D.N.D. Jan. 6, 2006). Causation also cannot be based upon mere speculation. Id.
[¶61] Beretta asserts that even if Belk's design defect opinions are allowed, Tosseth cannot prove the alleged defects were the proximate cause of Jaide Tosseth's death. Proximate cause in both negligence and strict liability cases "may be proved by circumstantial evidence if the evidence permits a reasonable inference of a cause of injury for which the defendant is responsible and excludes equally reasonable inferences of other causes for which the defendant is not responsible." Endresen v. Scheels Hardware & Sports Shop, Inc., 1997 ND 38, ¶ 20, 560 N.W.2d 225, 232
[¶62] Beretta notes its experts, Shain and Haag, performed chambering and extraction tests on the subject pistol and found it to be working properly. Doc. No. 37, p. 34. Shain stated in his report, "the standard function check protocol for the pistol included a feed, chamber, extract eject test, (using multiple dummy rounds of ammunition), as well as testing the magazine release, the slide lock function, the trigger and safety function and a trigger pull test," noting "all the tested functions were operationally correct." Doc. No. 37-8, p. 11. In fact, the experts opined the cause of the incident was not due to any function or failure of the pistol, but due to the cartridge and Andrew Tosseth's actions. Haag's report outlines his belief of what caused the events that day:
1. A dirty or deformed cartridge was incompletely seated in the chamber of the Beretta Neos U22 pistol, serial number T26231.
2. The cartridge was sufficiently wedged in the chamber that the pistol's extractor was incapable of removing it.
3. The amount of "out-of-battery" spacing was such that the disconnector was not activated.
4. The amount of "out-of-battery" spacing did allow a normal trigger pull and striker fall which resulted in a
visible firing pin impression when Mr. Tosseth locked the slide back and viewed the head stuck, but unfired cartridge.
5. Repeated cycling of the slide drove this cartridge further and further into the chamber until the struck, but unfired cartridge was properly seated in the chamber.
6. This resulted in completed and proper seating of this cartridge for its discharge, and upon the pulling of the trigger by Mr. Tosseth in the position we see him in the surveillance video.
7. The high pressures generated in the now-normal discharge of this cartridge blew it from the chamber of this straight blow-back pistol after which it became one of the many fired cartridge cases at this scene was never recovered.
8. A likely and reasonable source of a dirty or deformed .22LR cartridge can be seen in one of several law enforcement scene photographs in which spent and live .22LR cartridges are visible on the concrete at the shooting tables and nearby grassy area. The dropping and subsequent recovery of such cartridges for intended shooting purposes is described on page 50 and 51 of Ethan Tosseth's deposition.
9. The suggestion or claim of a "hang-fire" is excluded given the nature and timing of hang-fires with modern ammunition.
Doc. No. 37-9, p. 11.
[¶63] While Beretta's experts assert Andrew Tosseth pulled the trigger and Andrew himself asserts he did not, Belk notes Andrew likely did. Belk was asked if he believed Andrew Tosseth pulled the trigger at the moment of the fatal discharge, and while he stated, "I don't know whether he did it consciously or not," he agreed that "the gun is most likely to fire with the trigger pulled," and Andrew Tosseth was the only one could have pulled the trigger. Doc. No. 37-2, pp. 85-86. However, Belk still asserts Andrew Tosseth would not have been put in that position in the first place if the extractor was working properly. When asked by Beretta's counsel if Belk believed the extractor failing was the cause of the accident, he replied "part of a causation, yes, sir." Doc. No. 37-2. Belk stated "if the extractor had operated correctly, it'd be a moot point. The gun would not have malfunctioned. Three people wouldn't have messed with it. It would have operated." Doc. No. 37-2, p. 134.
[¶64] Tosseth has put forth sufficient credible evidence showing there is a genuine dispute of material fact as to whether the design defect was the proximate cause of Jaide Tosseth's death. Summary Judgment shall be denied as to Tosseth's strict products liability design defect for the extractor.
b. Disconnector, Radiused Sear Lever and Trigger Bar
[¶65] Tosseth initially argues a second design defect is present in the NEOS pistol – the disconnector. In Belk's report, he noted that "initial operational checks and tests [of the exemplar NEOS pistol] were all normal but for a terrible trigger pull." Doc. No. 52-10, p. 6. Belk stated he viewed the NSI X-rays of the subject gun and did further study on the exemplar gun to investigate why the trigger pull was off. Id. Belk asserted he examined the exemplar gun's disconnector function at various points of rest, noticing an odd occurrence:
The disconnector in a semi-automatic pistol prevents the firearm from accidentally becoming a fully automatic weapon because it is designed to release one cartridge at a time. Doc. No. 37-2, p. 109. According to Belk, the trigger "pulls the sear one time, and then it remains out of contact with the sear until the trigger is released again." Id. The disconnector also prevents the discharge of a cartridge while the pistol is out of battery some distance. Id. Belk describes "out of battery" as the head of the cartridge case not fully supported by the breech. Id.
A very distinct in sound and feel, "click". Very similar, but different, than a fall of the firing pin. It was repeated several times with follow-up trigger pulls sometimes having no feel but return spring and other times resulting in the firing pin falling! There were several times of a dozen or more trigger pulls of no feel or a clicking sound and feel and then the firing pin would release in "firing" the pistol. Through further test, it was found the amount of slide displacement from the face of the barrel butt (not tenon) was found to be .074" (Seventy-four thousandths). One occurrence happened at .072 but would not repeat. The disconnection was complete at .075 and above.
Doc. No. 52-10, p. 6.
[¶66] Belk then examined CT X-rays of the subject gun to determine why the disconnector was allegedly malfunctioning. Doc. No. 52-10, p. 7. Belk explained:
The subject gun, as viewed by CT ‘slice’ which is an X-ray of a specific ‘layer’ of the gun from a side view shows the transfer bar and sear in profile and in great detail. From this ‘Z slice’ view, it is seen the sear and transfer bar have radiused corners. These corners come together when the transfer bar is pressed downward partway by a dislocated slide by .074". When the transfer bar is dislocated downward just far enough so that the corners meet, the friction and geometry between the parts allows the sear to be pulled part way out of engagement with the striker/firing pin but then the rounded corners slip before the sear disengages and the sear snaps back up into full engagement. An audible and tactile "click" is the result.
Alternatively, as seem many times in the exemplar gun, the sear does not fully re-engage which leaves the transfer bar free to move below it. That explains a freely moving trigger after a ‘click’. At other times, ‘the click’ occurs when the rounded edges slip and the sear snaps back into place but then the transfer bar sufficiently engages the sear to disengage it completely on the next pull. Proper operation of the gun becomes uncertain and confusing.
Doc. No. 52-10, p. 7.
[¶67] Belk asserts that when the receiver is out of battery 72 to 74 thousandths, the disconnector works sometimes and doesn't others, causing confusion to the shooter as to what status the pistol is in and whether it fired. Doc. No. 37-2. Belk asserted that the "sensation you get with a disconnector failure is almost like a dry fire. It feels like the gun fired, but it didn't." Id. at p. 121.
[¶68] Belk was asked in his deposition testimony whether this specific defect was a cause of the accident. When asked in his deposition to confirm that he had "no way to render an opinion that this confusing situation [he] believes exists with regard to the sear and the trigger bar was in anyway a cause of the accident," Belk responded that "the gun is of low quality that has numerous failures, and that's one of them" and he did not know if it was the cause. Doc. No. 37-2, p. 122. He did state there was a possibility it was a contributing factor. Doc. No. 37-2, p. 167
[¶69] Beretta however argues that Belk "conceded the only thing this out of battery condition could cause was confusion on the part of the shooter (e.g., did the trigger pull release the cocked firing pin or not?) and Belk himself did not know if Andrew Tosseth was confused, thus failing to establish causation." Doc. No. 55, p. 3. When asked if Belk believed Andrew Tosseth was confused in any way at the time of the incident, Belk admitted he had no information to know if Andrew Tosseth was confused or what he was feeling. Doc. No. 37-2, p. 110. Belk admitted he never read Andrew Tosseth's deposition nor did he speak to Andrew himself to know if Andrew experienced confusion as a result of the disconnector. Doc. No. 37-2, p. 121. Belk also conceded he has never seen the subject pistol and could not confirm if this same disconnector condition that was found in the exemplar was also in the subject pistol. Doc. No. 37-2. P. 167 Based on this lack of information, Belk was asked to confirm that he could not say "the condition" [the disconnector] Belk found in the exemplar was the cause of this accident. Doc. No. 37-2, p. 120. Belk responded, "That's correct. It was the extractor that was the greatest causation." Doc. No. 37-2, p. 121. Beretta therefore argues Belk failed to establish causation even if the radiused corners did constitute a design defect.
[¶70] Aside from failing to show causation, Beretta also argues Tosseth failed to rebut its argument that the disconnector (sear lever and trigger bar designs) was not defectively designed at all in her Response or Sur-Reply, thereby abandoning that claim. The Court agrees. Tosseth's Response and Sur-Reply focus solely on the alleged extractor defect. ("Jack Belk, the expert for the Tosseth family, has very specifically identified what is wrong with the design of the Beretta Neos pistol and specifically in part – the extractor."). Doc. No. 60, p. 1. If the movant demonstrates the absence of a genuine issue of material fact, "[t]he nonmovant ... must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Tosseth has failed to come forward with specific facts, or any facts for that matter, showing there is a genuine dispute of material fact as to whether the radiused sear lever and trigger bar constituted a design defect or that this design was the proximate cause of the incident.
ii. Negligent design defect
[¶71] Tosseth also asserts Beretta was negligent in designing the NEOS pistol. In a negligent design claim, the Plaintiff must establish the common elements of a negligence action in North Dakota, which are: (1) a duty, (2) breach of that duty, (3) causation, and (4) damages. Krosch, 590 F. Supp.2d at 1176. The manufacturer or seller is not liable absent proof that the product is defective. Oanes, 476 N.W.2d at 253 ; N.D.C.C. § 28-01.3-06. "Therefore, one element of a negligent design claim is that the product is defective or unsafe." Krosch, 590 F. Supp.2d at 1176. Section 28-01.3-06, N.D.C.C., provides: "[n]o product may be considered to have a defect or be in a defective condition unless at the time the product was sold ... there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer." Id. § 28-01.3-06. It is well-established that negligence actions are ordinarily inappropriate for summary judgment. Gullickson v. Torkelson Bros., Inc., 598 N.W.2d 503 (N.D. 1999). Stroklund v. Thompson/Ctr. Arms Co., No. 4:06 CV-08, 2007 WL 4191740, at *2 (D.N.D. Nov. 21, 2007) [¶72] As to the elements of causation and the additional requirement of showing the product was defective and unreasonably dangerous, Tosseth has put forth sufficient credible evidence creating a genuine dispute of material fact. These factors have been addressed above in detail, so duplication at this point is not required. However, Tosseth still must establish a duty on behalf Beretta and a breach of that duty. In other words, Tosseth "must establish that [Beretta] failed to use reasonable care in designing a product and that this failure resulted in a defective product." Krosch, 590 F. Supp.2d at 1176.
[¶73] "Whether or not a duty exists is a question of law." Holcomb v. Zinke, 365 N.W.2d 507, 511 (N.D. 1985). Courts routinely find firearm manufacturers owe consumers a duty of care to design their products safely. See e.g. Endresen v. Scheels Hardware & Sports Shop, Inc., 1997 ND 38, ¶ 28, 560 N.W.2d 225, 234 ("Manufacturers of handguns have been held to the most exacting duty of care in the design of their product."); Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1535 (10th Cir. 1986) ("In Kansas, as in most states, one who engages in dangerous activities is held to a higher standard of care to avoid negligence liability. It requires little imagination to include gun manufacturing in this category of dangerous activities.").
The Johnson Court was asked to determine if the lower court erred in its instruction to the jury on the firearm manufacturer's duty of care. The Court noted:
Appellant argues that the district court erred in instructing the jury on appellant's duty of care in designing and manufacturing the gun. The court charged the jury in relevant part:
"A manufacturer of firearms has the duty to exercise the highest degree of care in the design of the product so that it will be reasonably safe for the use for which it was intended or which can reasonably be anticipated. Failure to fulfill this duty constitutes negligence."
Appellant claims that it should have been held only to a duty of reasonable care and not to the "highest degree of care". This claim is without merit.
Johnson, 797 F.2d at 1535.
[¶74] Beretta argues Tosseth has failed to offer affirmative evidence identifying what the duty of care by Beretta owed to Tosseth is and a breach of that duty. Doc. No. 37, p. 38. Beretta asserts "Belk has no idea what the standard of care is for a pistol manufacturer, and Plaintiff never took a single deposition or propounded a single interrogatory or document request to learn about Beretta's design, testing, and manufacturing processes." Doc. No. 55, p. 2. Beretta also argues Belk lacks any qualifications to render an opinion as to what the standard of care is and he has no facts to make a reasoned judgment as to whether Beretta breached that duty." Doc. No. 55, p. 3. Instead, Beretta argues it has put forth "affirmative, uncontradicted evidence" of its three-year process to develop, design, and test the NEOS pistol. Doc. No. 37, p. 38. Beretta points to the affidavit of its employee Kellogg, outlining in more detail Beretta's manufacturing and design processes for the NEOS pistol, noting Tosseth never responded to this affidavit nor did she offer any evidence to establish what the duty of care was. Doc. No. 55, p. 3.
[¶75] Tosseth responds a brief number of times in her Response and Sur-Reply to Beretta's assertion she has failed to prove a negligence claim. See Doc. No. 60, ¶7 ("Beretta had a duty to design and manufacture the Beretta Neos in a safe manner and Beretta failed to do so and Jaide Tosseth was killed."). While Tosseth does not point to specific pin points in the record to establish what the standard of care is for Beretta and if it breached that duty, she does provide to the Court Belk's Expert Report and Declaration, which discussed Belk's views on Beretta's conduct in creating the extractor and disconnector. For example, Belk discusses "for well over a hundred years and many, many millions of similar pistols, the transfer bar/disconnector and sear corners are very sharp which greatly reduces the chance of a partial engagement." Doc. No. 52-10, p. 10. Belk asserts the NEOS pistol "is without the precision usually found in such guns," and "the excessive radius of the transfer bar and sear corners that allow ‘the click’ is good evidence of that lack of precision and makes the gun unduly dangerous and defective." Id. Belk argues Beretta used an "old design" with new materials, insufficiently paying attention to detail "which resulted in the confusing and tragic events in this case." Id. p. 11. Belk further argues Beretta failed to design an extractor that was cut close enough to the chamber to adequately engage the rim with the extractor hook. Id. While Belk did not use exact the exact words, his testimony and report still create a genuine dispute of material fact as to whether Beretta failed to use reasonable care in designing the NEOS pistol and that this failure resulted in a defective product.
[¶76] The Defendants attempt to use Krosch v. JLG Indus., Inc., 590 F. Supp. 2d 1169, 1177 (D.N.D. 2008) for the proposition that Tosseth's negligence claim should be dismissed for failing to present credible evidence. Krosch is distinguishable, however. In Krosch, the plaintiff did not have any expert testimony, instead relying upon deposition testimony of lay persons to establish negligent design and manufacture of the product and the fact that the warnings were inadequate on the part of the manufacturer. 590 F.Supp.2d at 1177 ("Without the scissors lift or any warnings that may have been attached to the lift, and without any credible expert witness testimony to present against JLG Industries, the Plaintiffs are unable, as a matter of law, to support their claims of negligence against the manufacturer of the scissors lift."). Here, Tosseth has provided credible evidence in the record to establish the elements of a negligent design defect claim on behalf of Beretta, her expert's testimony and report. Importantly, it is only "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, [that] there is no genuine issue for trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). That is not the case here. Summary Judgment as to the negligent design defect claim is therefore denied.
CONCLUSION
[¶77] For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED, in part, and, DENIED, in part. Summary Judgment is GRANTED as to the Plaintiff's Failure to Warn/Instruct claims and Manufacturing claims on both strict products liability and negligence theories. Summary Judgment is DENIED as to the Plaintiff's Strict Products Liability Design Defect claim and Negligent Design Defect claim. The Motion for Hearing is denied as Moot.
[¶78] IT IS SO ORDERED.