                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2883
                        ___________________________

Carol O'Neal, as Personal Representative of the Estate of Lanny O'Neal, Deceased

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

Remington Arms Company, L.L.C.; Sporting Goods Properties, Inc.; E.I. du Pont
                      de Nemours and Company

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                    Appeal from United States District Court
                  for the District of South Dakota - Sioux Falls
                                  ____________

                              Submitted: June 9, 2015
                              Filed: October 14, 2015
                                  ____________

Before LOKEN, BYE, and KELLY, Circuit Judges.
                           ____________


BYE, Circuit Judge.

      Carol O'Neal sued Remington Arms Company, L.L.C. (Remington) alleging
a defect in a rifle manufactured by Remington caused her husband's death in a
November 2008 hunting accident. The district court granted summary judgment to
Remington on the grounds that O'Neal could not show whether the alleged defect
existed at the time of manufacture or whether the defect resulted from a subsequent
alteration or modification to the rifle. Because South Dakota law permits a plaintiff
to prove a product defect through circumstantial evidence, and O'Neal presented
sufficient circumstantial evidence to show the alleged defect was present at the time
of manufacture and was not the result of a subsequent alteration or modification, we
reverse and remand for further proceedings.

                                           I

      In this appeal from the grant of a summary judgment, we recite the facts in the
record in the light most favorable to O'Neal, giving her the benefit of all reasonable
inferences to be drawn from the evidence. See Turner v. Iowa Fire Equip. Co., 229
F.3d 1202, 1204 (8th Cir. 2000).1

        Remington manufactured the Model 700 .243 caliber bolt-action rifle involved
in this case in 1971. Remington used a trigger mechanism in its Model 700 rifles
called the Walker trigger, named after the engineer who designed the mechanism.
Remington knows the Walker trigger can cause Model 700 rifles to fire a round when
the safety lever is released from the safe position to the fire position, without the
trigger being pulled. This defect results from the manner in which two components
of the trigger mechanism – the sear and the connector – interact with one another,
coupled with the lack of a physical attachment between the connector and the trigger
itself.



      1
       Some of the facts declared here are taken from the report and testimony of
O'Neal's expert, Charles Powell. Remington disputes most (if not all) of Powell's
opinions and testimony, as well as other facts in the record. The disputed facts in the
record may ultimately be resolved in Remington's favor. For purposes of summary
judgment, however, we are obligated to view them in the light most favorable to
O'Neal, the non-moving party.

                                         -2-
        We start with an explanation of the interaction between the sear and the
connector. The connector is a U-shaped piece of steel found directly in front of the
trigger. The connector gets pushed forward when the trigger is pulled. The sear is
a separate metal piece which rests on the very tip of the rear corner of the connector.
When the connector moves forward, the sear drops down behind it. The motion of
the sear dropping allows the firing pin to snap forward, and the rifle fires a cartridge.
Even when the connector is properly aligned, the amount of engagement (or overlap)
between the rear corner of the connector and the sear is very small, just .01 to .025
inches. In other words, the inherent design of the Walker trigger allows a Model 700
rifle to fire a cartridge when the connector is pushed forward as little as 1/100th to
25/1000ths of an inch, allowing the sear to drop.2 Figures 1 and 2 in the attached
appendix show the relationship between the trigger, sear, and connector, as well as
the minute engagement point between the connector and the sear.

        Next, we explain how the lack of a physical connection between the trigger and
the connector makes the minute engagement point between the connector and the sear
so critical, and susceptible to malfunction. In the Walker trigger mechanism, the
connector and the trigger are not physically attached; rather, the connector is "slip fit"
in front of the trigger piece. As a result, the two parts separate slightly every time a
rifle is fired. Very small pieces of dirt, manufacturing residue, corrosion deposits,
lubricant deposits, firing deposits, and even condensation can get trapped between the
connector and the trigger when the two parts separate. The connector is not properly
aligned when this happens, because the foreign material in the small space between
the two parts pushes the connector forward.



      2
        The thickness of a piece of standard copy paper is 4/1000ths of an inch. See
http://hypertextbook.com/facts/2001/JuliaSherlis.shtml. For comparison purposes,
then, 1/100th of an inch is equivalent to the thickness of 2½ pieces of standard copy
paper, while 25/1000ths of an inch is roughly equivalent to the thickness of six pieces
of standard copy paper.

                                           -3-
        When the safety lever is in the safe position, it physically lifts and restrains the
sear out of engagement with the connector and trigger. But when the safety lever is
in the fire position, the minute engagement point between the rear corner of the
connector and the sear becomes critical, because that small engagement point is the
only thing keeping the sear from dropping and allowing the firing pin to snap
forward. If the connector is misaligned by as little as 1/100th of an inch, the tip of the
connector's rear corner no longer supports the sear above it. As a result, the sear can
drop behind the connector without the trigger being pulled, with only the safety lever
lifting and restraining the sear. Thus, when someone releases the safety lever, the
rifle fires a round without the trigger being pulled. See Support Services Engineering
Report prepared by Charles W. Powell (Powell Report), Jt. App. at 579-86.

       Remington knew about this problem with the Walker trigger at least as early
as 1979. The record in this case includes the minutes from a Remington product
safety subcommittee meeting dated January 2, 1979. Jt. App. at 624-28. The
subcommittee minutes discuss the inspection procedures Remington initiated on all
bolt action rifles beginning in 1975, including the Model 700. Based in part upon the
inspection of rifles returned to Remington for repairs, Remington acknowledged that
Model 700 rifles manufactured prior to 1975 can be "'tricked' into firing when the
safety lever is released from the 'safe' position" without pulling the trigger. Id. at 624.
Remington estimated that at least 1% of the two million Model 700 rifles it had
manufactured prior to 1975 – or 20,000 rifles – would inadvertently fire merely by
releasing the safety (i.e., moving the lever from the safe position to the fire position)
without pulling the trigger. Id. at 627. Remington decided against recalling the
Model 700 rifles, though, because "the recall would have to gather 2,000,000 guns
just to find 20,000 that are susceptible to this condition." Id. at 627.

      When viewed in the light most favorable to O'Neal, however, the record
suggests the lack of a physical attachment between the trigger and connector in the
Walker trigger creates the possibility of foreign material getting trapped in the space

                                            -4-
between the two parts every time a Model 700 rifle is fired. If foreign material is
present and pushes the connector far enough forward – past its already minute
engagement point with the sear – any Model 700 rifle could be susceptible to an
inadvertent discharge at some point. Moreover, the sear and connector in Model 700
rifles are enclosed in a riveted housing that interferes with a user's ability to visually
inspect the interior parts to determine whether the connector has an insufficient
engagement with the sear due to the presence of foreign materials trapped between
the trigger and connector. See Powell Report, Jt. App. at 584.

       On November 9, 2008, O'Neal's husband, Lanny, was deer hunting with friends
near Eagle Butte, South Dakota. Lanny loaned the Remington Model 700 .243
caliber bolt-action rifle involved in this case to Mark Ritter, another one of the
hunters, to use that day. The hunters were traveling in a pickup truck when they
spotted a deer. At the time, Ritter was sitting in the back seat of the pickup behind
Lanny, who sat in the front passenger seat. After the pickup stopped, Ritter began to
exit the truck to shoot the deer. Ritter moved the safety lever on the rifle from the
safe position to the fire position without pulling the trigger, and the rifle discharged.
The cartridge traveled through the pickup seat and hit Lanny, who eventually died
from the gunshot.

       As stated above, the particular Model 700 rifle involved in this case was
manufactured in 1971. Remington does not dispute that, at the time of its
manufacture, the rifle was equipped with a Walker trigger mechanism. Remington
does dispute, however, whether O'Neal can prove the rifle never underwent a post-
manufacture alteration or modification which could have caused it to discharge when
the safety lever was moved from the safe position to the fire position without pulling
the trigger. The evidence marshaled by O'Neal shows that Doug Swanson, Lanny's
stepfather, acquired the rifle in the mid-1980s from the estate of a man named Albert
McIlvenna. Swanson thereafter used the rifle and occasionally loaned it to others,
including Lanny. Lanny borrowed the rifle from Swanson in 2005 or 2006, and

                                           -5-
remained in possession of it until the day of the 2008 accident. Swanson never
altered or modified the rifle during the time he owned the rifle and has no knowledge
of anyone else having altered it. Significantly, no one who used the rifle following
Swanson's acquisition of it ever experienced an inadvertent discharge when the safety
lever was moved from the safe position to the fire position without pulling the trigger.

       Thus, the evidence viewed in the light most favorable to O'Neal indicates the
rifle did not undergo any alterations or modifications which would cause it to
discharge when the safety lever was moved from the safe position to the fire position
without pulling the trigger, at least from the time Swanson first acquired it until the
day of the accident. But this leaves a gap of over a decade of unaccounted time
between the date of the rifle's manufacture and Swanson's acquisition of it. This gap
in time is the center of the parties' current dispute. Remington argues, and the district
court agreed, that O'Neal cannot show whether a modification or alteration to the rifle
prior to Swanson's acquisition of it could have caused it to discharge when the safety
lever was moved from the safe position to the fire position without pulling the trigger.

       O'Neal's burden of showing the rifle never underwent a post-manufacture
alteration or modification is complicated by the fact that the rifle can no longer be
examined or tested. After her husband's death, O'Neal contacted two attorneys to
explore the possibility of pursuing a wrongful death action. When both attorneys
declined to represent her, and she did not believe a suit against Remington was a
viable possibility, she asked a friend to destroy the rifle because it reminded her of
her husband's death. Several months after destroying the rifle, O'Neal learned of the
defects in the Walker trigger used in Remington's Model 700 rifles after hearing
about a national news documentary which aired on CNBC in October 2010. The
news documentary includes a videotape prepared by police snipers in Portland,
Maine, showing a Model 700 rifle discharging several rounds when an officer merely
touches the bolt to unload the weapon when the safety is in the fire position, without
touching the trigger. The documentary also features a number of inadvertent

                                          -6-
discharges of Model 700 rifles which resulted in deaths or serious injuries when the
safety lever was switched from the safe position to the fire position without the
trigger being pulled. See CNBC Remington Under Fire DVD, Exhibit T, Jt. App. at
1159. O'Neal then contacted a different attorney and shortly thereafter filed this
action against Remington in December 2011.

      The district court granted summary judgment to Remington on the grounds that
O'Neal could not show the defect that allegedly caused her husband's death was
present at the time of manufacture, and not the result of a post-manufacture alteration
or modification which would cause the rifle to discharge when the safety lever was
moved from the safe position to the fire position without the trigger being pulled.
O'Neal then filed this timely appeal.

                                          II

      We review the district court's grant of summary judgment de novo. Occidental
Fire & Cas. Co. v. Soczynski, 765 F.3d 931, 935 (8th Cir. 2014).

       This diversity case is governed by South Dakota law. South Dakota law allows
a plaintiff in a products liability suit to use circumstantial evidence to prove that a
defective product caused an injury, and that the defect existed when the product left
the defendant's control. See Crandell v. Larkin and Jones Appliance Co., Inc., 334
N.W.2d 31, 34 (S.D. 1983) ("Causation may be established by circumstantial
evidence where that evidence establishes by a preponderance, the probability that the
accident was caused by a defect. We do not require that plaintiff eliminate all other
possible explanations of causation that the ingenuity of counsel might suggest. It is
sufficient that plaintiff negate his own and others' misuse of the product. In addition
plaintiff has the burden of showing that the defect existed when the product left
[defendant's] hands. This burden may also be satisfied by circumstantial evidence."
(quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 256 (S.D. 1976))).

                                         -7-
        As part of the burden of showing the defect existed when the product left the
defendant's control, a plaintiff must show the product reached the plaintiff without
any alterations or modifications "which defeat the safety which is engineered into that
product." Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 914 (S.D. 1987);
see also S.D. Codified Laws § 20-9-10 ("No manufacturer . . . of a product may be
held liable for damages for personal injury . . . where a proximate cause of the injury
. . . was an alteration or modification of such product . . .").

       O'Neal argues the circumstantial evidence in this record is sufficient to show
the Model 700 rifle involved in her husband's death was (1) defective at the time it
left Remington's control, and (2) did not undergo any post-manufacture alterations
or modifications which would cause it to discharge when the safety lever was moved
from the safe position to the fire position without the trigger being pulled.

        With respect to the first point – whether the Model 700 rifle was defective at
the time it left Remington's control – Remington does not dispute the Model 700
rifles it manufactured in 1971 were equipped with the Walker trigger. The record in
this case establishes that the problems with the inherent design of the Walker trigger
are well-documented and well-known to Remington. Indeed, Remington itself
acknowledged that at least 20,000 rifles it manufactured prior to 1975 were
susceptible to inadvertent discharges when the safety lever was moved from the safe
position to the fire position without the trigger being pulled.

       A reasonable inference of the additional evidence presented by O'Neal through
the plenary report and testimony of her expert, Charles Powell, is that any Model 700
rifle equipped with a Walker trigger may be susceptible to an inadvertent discharge
when the safety lever is moved from the safe position to the fire position without the
trigger being pulled. The Walker trigger, as designed, allows the connector and
trigger to separate when the rifle is fired, creating the possibility of foreign material
getting trapped between the trigger and connector, which misaligns the connector by

                                          -8-
pushing it forward. This, coupled with the already minute engagement point between
the sear and the connector, can result in a Model 700 rifle discharging without the
trigger being pulled when the connector is misaligned by as little as 1/100th of an
inch, or the thickness of 2½ pieces of standard copy paper.

        Moreover, the Walker trigger hides this latent defect inside a riveted housing
unit which interferes with a user's ability to clean the interior parts to remove the
presence of foreign materials, or to visually inspect the parts to determine whether the
connector has become misaligned and has an insufficient engagement with the sear.
All of this makes it very difficult to prevent an inadvertent discharge from occurring
in a Model 700 rifle; more significantly, it makes it very difficult to predict when an
inadvertent discharge caused by this design defect may occur. We agree with O'Neal
that a rifle originally manufactured in this condition, which allows for the possibility
of the rifle discharging without pulling the trigger, is defective and not fit for its
ordinary purpose. See Powell Report, Jt. App. at 586; cf. Lewy v. Remington Arms
Co., 836 F.2d 1104, 1106-08 (8th Cir. 1988) (reviewing a products liability action
against Remington which included a claim alleging this same defect in Model 700
rifles and noting "there was sufficient evidence from which the jury could find that
Remington knew the [Model 700 rifle] was dangerous").

       The second point – whether the Model 700 rifle involved in this case
underwent a post-manufacture alteration or modification which would cause it to
discharge when the safety lever was moved from the safe position to the fire position
without the trigger being pulled – is the more difficult issue. O'Neal argues the
evidence from the men who owned and used the rifle without incident from the mid-
1980s through the date of the accident is sufficient circumstantial evidence to show
the rifle did not undergo a post-manufacture modification or alteration prior to the
mid-1980s. In addition, O'Neal relies upon the opinion of her expert, Charles Powell,
who testified that post-manufacture modifications or alterations to the rifle, such as
an improper adjustment of the sear engagement, would most likely cause the rifle to

                                          -9-
fire every time the safety was released without a trigger pull. See Powell Deposition
at 55-56; Jt. App. at 1121. We agree this is sufficient circumstantial evidence under
South Dakota law to survive summary judgment.

       For purposes of summary judgment, we accept as true O'Neal's evidence that
the rifle inadvertently discharged in November 2008 when Ritter moved the safety
lever from the safe position to the fire position without pulling the trigger. Starting
from this premise, the circumstantial evidence marshaled by O'Neal supports a
reasonable inference that the rifle did not undergo any post-manufacture alterations
or modifications which would cause it to discharge when the safety lever was moved
from the safe position to the fire position without the trigger being pulled. The fact
that the subject rifle was used many times without incident from the mid-1980s
through November 2008, and then suddenly inadvertently discharged, is consistent
with the unpredictable manifestation of the inherent design defect in the Walker
trigger. In sharp contrast, if the subject rifle had been modified or altered prior to the
mid-1980s in a way which would cause it to discharge when the safety lever was
moved from the safe position to the fire position without the trigger being pulled, it
is highly unlikely the rifle could have been used as many times as it was over the span
of the next twenty-plus years without incident. As O'Neal's expert testified, an
alteration or modification prior to Swanson's acquisition of the rifle which would
cause it to discharge when the safety lever was moved from the safe position to the
fire position without the trigger being pulled would have caused the rifle to
inadvertently discharge "probably almost every time" it was used. Jt. App. at 1121.
That fact is clearly inconsistent with the evidence O'Neal presented of the rifle's usage
history.

      Remington argues O'Neal still cannot show the subject rifle had the same
Walker trigger at the time of the accident that it had when it left Remington's control
in 1971. Remington notes "that original factory trigger mechanisms are often
replaced with trigger mechanisms designed, manufactured and sold by a variety of

                                          -10-
after-market trigger manufacturers." Appellee's Br. at 25. Remington argues the
destruction of the rifle precludes O'Neal from establishing that the trigger mechanism
in the subject rifle at the time of the accident was the original Remington trigger
mechanism rather than an after-market trigger made by another manufacturer. We
disagree.

        First of all, the record shows the hunting accident was investigated by the
Dewey County Sheriff's Office; the South Dakota Department of Game, Fish and
Parks; and the Cheyenne River Sioux Tribe. These investigations included
inspections of the rifle, including at least one description of the various parts of the
rifle which specifically mentions additions to the rifle made by other manufacturers.
See Jt. App. at 240 (noting the presence of a Simmons scope). Thereafter, the rifle
was transferred to the Federal Bureau of Investigation (FBI). None of the records
from the law enforcement agencies who inspected the rifle or had possession of it
following the accident reference the presence of an after-market trigger mechanism.
The absence of such information supports the reasonable inference that the trigger
mechanism in the subject rifle was the original Remington trigger. Cf. Powell
Deposition at 64; Jt. App. at 1123 ("[L]aw enforcement investigators looked at the
rifle, cycled the bolt, took the shells out of it. Had there been any broken parts in the
fire control or any other part of the rifle you would have thought that would have
been noted, by the absence of that information, you would think there were no broken
parts.").

       Second, and perhaps more importantly, the after-market triggers referenced by
Remington are designed to eliminate the possibility that a Model 700 rifle will
inadvertently discharge when the safety lever is moved from the safe position to the
fire position without the trigger being pulled, not cause the condition to occur. Here,
there was no evidence the subject rifle had a history of inadvertent discharges that
might spur an owner to replace the trigger mechanism. In addition, as stated above,
for summary judgment purposes we accept as true O'Neal's evidence that the rifle

                                          -11-
inadvertently discharged in November 2008 when Ritter moved the safety lever from
the safe position to the fire position without pulling the trigger. Starting from this
premise, the fact that the subject rifle was used many times without incident from the
mid-1980s through November 2008, and then suddenly inadvertently discharged, is
more consistent with the unpredictable manifestation of the inherent design defect in
the Walker trigger, than it is with the rifle being equipped with a replacement trigger
designed to eliminate the possibility of an inadvertent discharge.

      While a jury may ultimately find this evidence lacking, for our purposes in
reviewing the grant of summary judgment, we agree with O'Neal that the reasonable
inferences supported by this record require us to reverse and remand for further
proceedings. Cf. Ahmann v. United Air Lines, Inc., 313 F.2d 274, 281 (8th Cir.
1963) (reviewing the improper grant of a motion for judgment notwithstanding the
verdict and noting "[i]t is not the function of a court to search the record for
conflicting circumstantial evidence in order to take the case away from the jury on a
theory that the proof gives equal support to inconsistent and uncertain inferences. . . .
The very essence of [the jury's] function is to select from among conflicting
inferences and conclusions that which it considers most reasonable.") (citation
omitted).

       Finally, Remington urges us to affirm the district court on two alternative
grounds: (1) that Powell's expert testimony should be excluded under Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); and (2) that the case should be
dismissed as a sanction for spoliation of evidence because O'Neal destroyed the rifle.
The district court did not address either of those issues in its motion for summary
judgment. We believe it is more prudent for the district court to address those issues
in the first instance, and thus decline Remington's invitation to affirm on either of
these alternative grounds. See, e.g., Red River Freethinkers v. City of Fargo, 679
F.3d 1015, 1028 (8th Cir. 2012) (declining to reach the merits of the claims where the
district court did not rule on the merits and neither party addressed the merits in its

                                          -12-
brief); Dodd v. United States, 614 F.3d 512, 518 (8th Cir. 2010) (remanding to the
district court to address the merits of the claims where neither party briefed the merits
to the court and the district court did not address the merits in the first instance);
Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 873 (8th Cir. 2006) ("Because the
district court did not decide the merits of these claims, which are heavily fact-based,
we decline to consider them in the first instance.").

                                           III

      We reverse and remand to the district court for further proceedings consistent
with this opinion.

LOKEN, Circuit Judge, dissenting.

       I respectfully dissent. In my view, the district court correctly concluded that,
because Carol O’Neal had the Remington Model 700 rifle destroyed before this
action was filed, she cannot prove that a design or manufacturing defect present when
the rifle left Remington’s control in 1971 proximately caused the tragic hunting
accident that killed her husband 37 years later. To make clear why this is so, I will
separately analyze two distinct defect theories articulated by O’Neal’s expert, Charles
W. Powell, which the court has confusingly intermingled.

      First, as the court has explained, Powell opined in his October 2012 SSEC
Engineering Report that the triggers in all Model 700 rifles manufactured at that time
were defective because the “Walker” fire control system included a connector that
separates briefly from the trigger when the rifle is fired, permitting “interferences”
such as dirt and deposits to become lodged between the connector and trigger, which
can lead to a misfire. This is a design defect theory. Crucial to this theory is
evidence that an interference was present that caused a particular Model 700 rifle to



                                          -13-
misfire causing injury. Lacking this evidence, Powell at his deposition disclaimed
any reliance on his design defect theory in this case:

             Q. Are you able to offer an opinion that at the time of this
      shooting there was any separation of the connector away from the
      trigger body?

            A. No. I can’t tell you one way or the other because we don’t
      have the rifle to look at. It does not appear so because the rifle had been
      operating correctly for a long period of time . . . .

                                  *   *    *     *   *

            Q. Okay. So, sir, can you offer an opinion to a reasonable degree
      of certainty that the presence of the connector in the design of the
      subject rifle was causally related to how this shooting occurred?

            A. I cannot tell you exactly what effect the connector had in this
      case without examining the rifle.

Given this testimony by O’Neal’s only expert, the summary judgment record
contained no evidence that the alleged design defect caused the misfire that killed
Lanny O’Neal. Tellingly, while the first three pages of the fact section of O’Neal’s
brief to this court explained the alleged connector design defect in detail, her brief
opposing summary judgment submitted to the district court did not even mention the
connector or this design defect theory. An appellate court should always be skeptical
when it is asked to reverse based on a claim or theory not presented to the trial court.

       Second, as the court has explained, Powell’s Report referenced internal
Remington documents estimating that 1% of the Model 700 rifles manufactured
before 1975 were defectively manufactured with “inadequate Sear lift” that caused
the rifle to “inadvertently fire by movement of the safety lever to the OFF position,
without pulling the trigger.” O’Neal argued to the district court that summary

                                          -14-
judgment should be denied because there was sufficient circumstantial evidence that
the rifle that killed her husband was one of the 1% that had this manufacturing defect
-- what the parties refer to as a “trick condition” -- that causes the rifle to discharge
when the safety lever is released without pulling the trigger. Powell’s deposition
testimony established that inspecting the rifle was critical to proving this theory:

            Q. Okay. So do you have any data, evidence or information that
      more than one percent of model 700 rifles manufactured in 1970 had
      inadequate sear lift when they came off the line?

             A. No, I don’t have the data one way or the other.

             Q. If you had the rifle -- if we had the rifle to examine, could you
      verify with certainty whether that rifle had inadequate sear lift?

             A. Yes.

                                  *    *    *     *   *

           Q. . . . [T]here were three adjusting screws on fire controls of
      model 700s of the 1970 vintage, right?

             A. Correct.

             Q. There was a screw that would adjust the amount of overtravel?

             A. Yes.

             Q. A screw that would adjust the amount of sear engagement?

             A. Correct.

             Q. And a screw that would adjust the trigger control force?

             A. Yes.


                                           -15-
            Q. Do you have any opinion that any of those screws had been
      adjusted from the time the rifle left the factory in about 1970 until the
      time of the O’Neal shooting?

            A. You would have to see the rifle in order to tell if they had been
      adjusted and what their values were.

       To reverse the grant of summary judgment, we must conclude that O’Neal
presented sufficient evidence that, when the Model 700 rifle left Remington’s control,
it was in an unreasonably dangerous condition because of a design or manufacturing
defect, and that Lanny O’Neal’s injury was proximately caused by that defect, rather
than by a subsequent alteration of the rifle. See Burley v. Kytec Innovative Sports
Equip., Inc., 737 N.W.2d 397, 408-09 (S.D. 2007). “Expert testimony is generally
necessary to establish elements of negligence and strict liability.” Nationwide Mut.
Ins. Co. v. Barton Solvents, Inc., 855 N.W.2d 145, 151 (S.D. 2014), citing Burley,
737 N.W.2d at 407-11.

       Here, expert Powell could not opine that the alleged connector design defect
caused the shooting without examining the rifle to determine if any foreign debris or
other interference had separated the connector from the trigger body. Nor could
Powell opine without examining the rifle whether it was one of the 1% of Model 700
rifles manufactured in the early 1970’s with the alleged “inadequate Sear lift”
manufacturing defect. In addition, he could not testify without examining the rifle
whether subsequent alteration, adjustment, or damage proximately caused it to fire
without the user pulling the trigger. I agree that South Dakota law permits plaintiffs
to prove elements of a products liability claim by circumstantial evidence in many
situations. But given expert Powell’s testimony, O’Neal’s only circumstantial
evidence that the alleged design defect caused the accident, or that the gun left
Remington’s control with the alleged manufacturing defect, was the fact that Ritter,
an excited deer hunter using a borrowed rifle, told accident investigators the rifle
fired on release of the safety without a trigger pull.

                                        -16-
       Under South Dakota law, “unless it is patently obvious that the accident would
not have happened in the absence of a defect, a plaintiff cannot rely merely on the fact
that an accident occurred.” Nationwide, 855 N.W.2d at 151 (quotation omitted).
Here, whether a design or manufacturing defect present when the Model 700 rifle left
Remington’s control proximately caused a tragic shooting 37 years later was far from
“patently obvious.” After giving O’Neal ample opportunity to develop and present
probative evidence to establish both defect and causation, the district court concluded
“there is a complete lack of evidence such that a jury could only speculate and guess
as to issues in which O’Neal bears the burden of proof.” On this record, summary
judgment was properly granted because, as in Burley, O’Neal “has not provided an
evidentiary basis tending to show that the injury was caused by a defect rather than
the alteration of the product.” 737 N.W.2d at 409.

      Accordingly, I would affirm the judgment of the district court.
                      ______________________________




                                         -17-
