                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 13a0744n.06

                                                  No. 12-1475

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                                    FILED
                                                                                                Aug 09, 2013
RODNEY PALATKA and JOANIE                            )                                   DEBORAH S. HUNT, Clerk
PALATKA                                              )
                                                     )
                 Plaintiffs-Appellants,              )        ON APPEAL FROM THE UNITED
                                                     )        STATES DISTRICT COURT FOR THE
v.                                                   )        WESTERN DISTRICT OF MICHIGAN
                                                     )
SAVAGE ARMS, INC., and                               )
SAVAGE ARMS COMPANY,                                 )
                                                     )
                 Defendant-Appellee.                 )


Before: COLE and DONALD, Circuit Judges; RUSSELL, Senior District Judge.*

        RUSSELL, Senior District Judge. Rodney and Joanie Palatka (“Palatkas” or “Plaintiffs”)

bring this action to recover for personal injuries Rodney sustained when a muzzleloading rifle

manufactured by Savage Arms, Inc., and the Savage Arms Company (“Savage Arms” or

“Defendant”) exploded during use. Relying on Michigan products liability law, the Plaintiffs

alleged that the barrel failed because of design and manufacturing defects. They offered expert

opinions in support of their claims.

        Subsequent to a Daubert hearing, the district court excluded the Plaintiffs’ causation experts.

Without experts, the district court determined that the Plaintiffs could not put forth an alternative

design and were unable to show through direct or circumstantial evidence that the alleged

manufacturing defect proximately caused Rodney’s injuries. Because the Plaintiffs lacked such


*
 The Honorable Thomas B. Russell, United States Senior District Judge for the W estern District of Kentucky, sitting
by designation.
No. 12-1475
Palatka v. Savage Arms, Inc.

evidence, the district court granted summary judgment sua sponte to the Defendant. The Plaintiffs’

now appeal the exclusion of their experts, the exclusion of allegedly similar incidents, and the

district court’s grant of summary judgment. Upon review, we affirm in part, reverse in part, and

remand to the district court for further proceedings.

                                      I. FACTUAL BACKGROUND

          Savage Arms manufactures a variety of firearms, including the Savage 10ML-II

(“10ML-II”). The 10ML-II is available in two models, one with a traditional “blued” barrel and the

other with a barrel made from 416R stainless steel.1 The firearm at issue in this case is the stainless

steel version of the gun. The 10ML-II is a muzzleloading rifle, meaning that it does not fire the self-

contained, pre-loaded cartridges used in modern firearms. Instead, both the projectile and the

expelling charge are manually loaded into the firearm through the open end of the barrel prior to

firing.

          Most modern muzzleloaders use black gunpowder to generate the force necessary to expel

the projectiles at high velocities. Black powder has at least three perceived drawbacks, however.

Upon firing, it produces less expelling force than modern gunpowder, creates large plumes of smoke

that can obstruct the user’s vision, and deposits soot in the barrel, requiring frequent cleaning.

Unlike black-powder muzzleloaders, the 10ML-II is designed to use modern, “smokeless”

gunpowder, which does not suffer from the drawbacks of black powder.




1
  “416R” is the particular alloy of stainless steel used to manufacture the 10ML-II’s barrel. 416R is one of many
stainless steel alloys.

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Palatka v. Savage Arms, Inc.

       Eldon Hofacker purchased a new 10ML-II from a federally licensed firearms dealer in 2002.

In 2009, Rodney borrowed the gun from Hofacker for deer hunting. To ensure its accuracy, Rodney

“sighted-in” the gun on November 14, 2009. During this process, the barrel of the muzzleloader

exploded, severing two fingers from Rodney’s left hand, injuring the remaining portion of that hand,

and severely damaging his right thumb. At the time of the accident, Rodney’s wife, Joanie, was

pregnant with twins. She alleges that the stress and trauma surrounding this incident caused her to

miscarry and lose both children.

       As a result of their injuries, the Palatkas filed suit on June 30, 2010. They pursued recovery

under five distinct theories: design defect, manufacturing defect, failure to warn, breach of express

warranty, and breach of implied warranty. Joanie also filed a claim for loss of consortium. The

Defendant denied all liability, claiming that Rodney’s injuries likely resulted from user error. In

particular, the Defendant believed that the firearm may have exploded because it was under a

“double-load,” meaning that Rodney fired the gun after accidently loading it with two charges and

two projectiles.

                                 II. PROCEDURAL HISTORY

       Prior to granting summary judgment, the district court excluded two categories of evidence:

allegedly similar incidents involving other 10ML-II rifles and the Plaintiffs’ causation experts, Dr.

Clark Radcliffe and Dr. Martin Crimp. The Palatkas appeal these exclusions. They argue that the

district court’s ultimate decision to grant summary judgment was in error because this evidence, had

it been admitted, established genuine issues of material fact.




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Palatka v. Savage Arms, Inc.

        The district court held two final pretrial conferences in this case. Following the first, held

on March 16, 2012, the court issued a written opinion granting and denying certain motions in

limine. Of particular importance on appeal, the court granted the Defendant’s motion to exclude

allegedly similar incidents involving other 10ML-II rifles. The court also amended the trial date and

scheduled a second final pretrial conference to address other pretrial issues, including the pending

motions to exclude the Plaintiffs’ causation experts.

        Dr. Radcliffe and Dr. Crimp were disclosed with several other experts on April 13, 2011.

Most of the Plaintiffs’ experts were either voluntarily withdrawn or excluded because their reports

were not timely provided as required by Federal Rule of Civil Procedure 26(a)(2)(B). Accordingly,

Dr. Radcliffe and Dr. Crimp were the Plaintiffs’ only remaining causation experts at the time of the

second conference.2

        Dr. Radcliffe and Dr. Crimp’s opinions were the subject of a Daubert hearing held in

conjunction with the second final pretrial conference on April 10, 2012. Two days after the hearing,

the district court issued a written opinion excluding Dr. Radcliffe and Dr. Crimp. Therein, the court

also granted summary judgment sua sponte to Savage Arms pursuant to Federal Rule of Civil

Procedure 56(f). Although the Defendant had not moved for summary judgment, the court

concluded that “[w]ithout competent expert testimony addressing the pivotal causation and design

issues in this case, a jury cannot reasonably discharge its duties in assessing liability[.]”




2


J. Ivan Dickson was also disclosed as the Plaintiffs’ expert for causation but was subsequently withdrawn as an expert.

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Palatka v. Savage Arms, Inc.

                        III. MICHIGAN PRODUCTS LIABILITY LAW

        The Plaintiffs appeal exclusion of their causation experts and the subsequent grant of

summary judgment on their design and manufacturing defect claims. They brought claims under

Michigan’s products liability law. A brief review of that law will aid review on appeal.

A. Design Defect

        The Plaintiffs allege that Rodney’s injuries were caused by a design defect in the 10ML-II.

The elements of a design defect claim have been codified in Michigan law. See Mich. Comp. Laws

§ 600.2946(2). To prevail on a design defect claim in that state, a plaintiff must prove that “(1) the

product was not reasonably safe when it left the control of the manufacturer; and (2) a ‘feasible

alternative production practice was available that would have prevented the harm without

significantly impairing the usefulness or desirability of the product to the users.’” Croskey v. BMW

of N. Am., 532 F.3d 511, 516 (6th Cir. 2008) (citing Mich. Comp. Laws § 600.2946(2)); Gregory

v. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995)). The second prong of this test requires a

“risk-utility” analysis. It “invites the trier of fact to consider the alternatives and risks faced by the

manufacturer in designing the product and to determine whether in light of certain factors ‘the

manufacturer exercised reasonable care in making the design choices it made.’” Croskey, 532 F.3d

at 516 (quoting Prentis v. Yale Mfg. Co., 365 N.W.2d 176 (Mich. 1984)). The Sixth Circuit has held

that a plaintiff meets this test by showing:

        (1) that the severity of the injury was foreseeable by the manufacturer; (2) that the
        likelihood of occurrence of her injury was foreseeable by the manufacturer at the
        time of distribution of the product; (3) that there was a reasonable alternative design
        available; (4) that the available alternative design was practicable; (5) that the
        available and practicable reasonable alternative design would have reduced the
        foreseeable risk of harm posed by the defendant's product; and (6) that omission of

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Palatka v. Savage Arms, Inc.

       the available and practicable reasonable alternative design rendered defendant's
       product not reasonably safe.

Hollister v. Dayton Hudson Corp., 201 F.3d 731, 738 (6th Cir. 2000). A plaintiff commonly shows

that the defendant’s product suffered from a design defect under the “risk-utility” factors “through

a ‘battle of the experts,’ with both parties introducing expert testimony concerning the efficacy and

practicability of using a certain design versus an alternative design.” Croskey, 532 F.3d at 516. The

plaintiff may also show that the defendant “knew or should have known about the risk [of injury]

by introducing evidence of similar incidents involving the [same product].” Id.

B. Manufacturing Defect

       The Plaintiffs also claim that Rodney’s injuries were proximately caused by a manufacturing

defect unique to the 10ML-II at issue. In Michigan, “[a] manufacturer will be held liable for

manufacturing defects existing at the time of manufacture and sale.” Gregory, 538 N.W.2d at 328

n.7. To prove a manufacturing defect, a plaintiff “‘must prove a defect attributable to the

manufacturer and [a] causal connection between that defect and the injury or damage of which he

complains.” Crew v. Gen. Motors Corp., 253 N.W.2d 617, 619 (Mich. 1977) (quoting Piercefield

v. Remington Arms Co., 133 N.W.2d 129, 135 (1965)). When pursuing a manufacturing defect

claim, the product at issue is to be “evaluated against the manufacturer’s own production standards,

as manifested by that manufacturer’s other like products.” Prentis, 365 N.W.2d at 182. A claim

based on a manufacturing defect is different than one premised on a design defect because it

“necessitates examination of the product itself rather than the manufacturer’s conduct.” Gregory,

538 N.W.2d at 329, n.10. In other words, the trier of fact is not required to make a reasonableness



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Palatka v. Savage Arms, Inc.

determination. The plaintiff must merely show: (1) the product was not produced in conformity with

the manufacturer’s specifications, and (2) the defect proximately caused of the plaintiff’s injuries.

                                   IV. EXPERT WITNESSES

       The Plaintiffs first appeal exclusion of their causation experts. Upon review, we conclude

that the district court abused its discretion by excluding Dr. Radcliffe and Dr. Crimp. These experts

were qualified and offered reliable opinions that would have helped the jury weigh the issues and

apply Michigan’s products liability law. Accordingly, the district court erred by excluding them.

A. Standard of Review

       Under Federal Rule of Evidence 702, “[a] witness who is qualified as an expert by

knowledge, skill, experience, training, or education may 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. The trial judge is the “gatekeeper” of expert evidence and determines its

admissibility under Rule 702. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). As gatekeeper,

“the trial judge has discretion in determining whether a proposed expert’s testimony is admissible

based on whether the testimony is both relevant and reliable.” Rose v. Truck Ctrs., Inc., 388 F.

App’x 528, 533 (6th Cir. 2010) (citing Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429

(6th Cir. 2007)). When making that determination about a particular expert, the judge must assess

“whether the reasoning or methodology underlying the testimony is scientifically valid and . . .

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Palatka v. Savage Arms, Inc.

whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993).

         A district court’s decision to admit or exclude an expert witness is reviewed for an abuse

of discretion. See Joiner, 552 U.S. at 146 (“[A]buse of discretion is the proper standard by which

to review a district court’s decision to admit or exclude scientific evidence.”) “A district court

abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” Brown v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005) (internal

quotation marks omitted). “[W]e will not substitute our own judgment for that of the district court

and will reverse an evidentiary decision ‘only where we are left with a definite and firm conviction

that [the district court] committed a clear error of judgment.’” In re Scrap Metal Litig., 527 F.3d

517, 528 (6th Cir. 2008) (quoting Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th

Cir. 2002)).

B. Dr. Clark Radcliffe

         The Plaintiffs’ first causation expert, Dr. Clark Radcliffe, is a professor of mechanical

engineering at Michigan State University. After examining the firearm, Dr. Radcliffe concluded that

the entire 10ML-II product line suffered from a design defect and that the particular 10ML-II

Rodney used also suffered from a manufacturing defect. In particular, he concluded that the gun

barrel failed because a threaded hole installed at the rear of the barrel made the barrel weaker and

more susceptible to failure when fired.3

3
  Dr. Radcliffe also opined that an improper material had been used to manufacture the gun barrel. But the Court
need not consider this opinion because on cross-examination at the Daubert hearing Dr. Radcliffe readily admitted
that: 1) he is a mechanical engineer, not a materials scientist; 2) the attributes of the material used in the 10ML-II are
beyond his area of expertise; and 3) he has never offered any testimony in his report or deposition about the

                                                           -8-
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Palatka v. Savage Arms, Inc.

         1. Dr. Radcliffe’s Design Opinion

         The 10ML-II is designed with a small hole near the base of the barrel. The hole is located

at the top-center of the barrel but does not extend through the barrel wall. Because the hole is

partially threaded along its depths, screws can be used to attach various accessories, like a rear sight,

to the gun. After examination, Dr. Radcliffe opined that the 10ML-II product line was defectively

designed because the excess, unthreaded portion of the hole unnecessarily increases the stress on

the barrel during firing, leading to its failure. He ultimately concluded that the excess depth of the

hole directly contributed to the failure of the 10ML-II at issue.

         Pictures in Dr. Radcliffe’s report show that threads are only cut along half of the hole’s

depth. According to Dr. Radcliffe, this excess and unthreaded depth does not help fasten a rear sight

to the gun and, therefore, has no function. Rather, the unthreaded portion only serves to increase

the stresses on the barrel during firing. Therefore, not only does the excess depth not provide any

benefit to the gun, but it actually makes it less safe to operate. In total, Dr. Radcliffe concluded that

the excess, unthreaded portion of the hole was an improper design that led to the barrel’s failure and

Rodney’s injuries. Dr. Radcliffe opined that the dangers associated with the gun could be reduced,

and the gun made safer, by eliminating the unthreaded depth of the hole. In other words, the hole

did not have to be eliminated entirely, but the excess and unthreaded portion, which has no function,

should be removed.




properties used in the barrel in question. By Dr. Radcliffe’s own testimony he is unqualified to offer a materials
opinion and, despite the terms of his report, apparently has never offered such an opinion. Because Dr. Radcliffe is
not qualified by knowledge, skill, experience, training, or education to offer a materials opinion, such opinion will
remain excluded on remand.

                                                         -9-
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Palatka v. Savage Arms, Inc.

        2. Dr. Radcliffe’s Manufacturing Opinion

        Dr. Radcliffe also concluded that the particular 10ML-II Rodney used was defectively

manufactured. His manufacturing defect opinion is closely related to his design defect opinion and

again focuses on the hole at the rear of the barrel.

        Dr. Radcliffe inspected the subject firearm, made measurements of the hole at issue, and

compared those measurements to design specifications produced by Savage Arms during discovery.

The design specifications stated that the maximum depth of the hole should be 0.161 inches. The

hole in the 10ML-II examined by Dr. Radcliffe had a depth of 0.168 inches, or 0.007 inches deeper

than specified. Based on this difference, Dr. Radcliffe concluded that the additional depth increased

stress on the barrel when fired, leading to its failure.

        3. Dr. Radcliffe’s Opinions are Admissible

        Although the district court did not question Dr. Radcliffe’s qualifications as an expert, it

excluded his opinion on grounds that it would not assist the jury in determining whether the 10ML-II

was defectively designed or manufactured. The court was critical of Dr. Radcliffe’s opinion in light

of his admission that he is not a firearms expert and has not consulted in the design or manufacture

of a firearm. The court also found that Dr. Radcliffe’s opinions would not supply a jury with a

sufficient basis for determining whether there was a design or manufacturing defect under Michigan

law. Upon review of the record, we conclude that the district court erred by excluding Dr.

Radcliffe’s opinions.

        First, we agree with the district court that Dr. Radcliffe is qualified to offer expert opinions

in this case. As a professor of mechanical engineering there is little doubt that he is qualified by his


                                                  -10-
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Palatka v. Savage Arms, Inc.

knowledge, skill, experience, training, and education to proffer an expert opinion. His qualifications

also remedy the district court’s concerns that he is not a firearms expert. His skill, education, and

training in mechanical engineering render him competent to offer opinions on a variety of

mechanical topics, and we will not require Dr. Radcliffe to have a specialized knowledge of firearms

to offer opinions here. See, e.g., Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 294

(6th Cir. 2007) (holding that although the expert’s experience was not specific to a particular

industry, his background and experience left him “well-positioned to assist the trier of fact to make

sense of” the evidence (internal quotations omitted)). The scope of his expertise may cut against

the weight given to his opinion, but it does not affect its admissibility.

           Second, we disagree with the district court that Dr. Radcliffe’s opinion would not aid the jury

in determining whether the 10ML-II suffered from a design or manufacturing defect. Dr. Radcliffe

wrote in his expert report and testified in the Daubert hearing that the excess depth of the rear sight

hole in the 10ML-II, as designed and actually manufactured, increased stress on the gun’s barrel

when fired. He concluded that the additional stress caused by the excess depth of the hole was a

“key issue” in the gun’s failure. As for an alternative design, Dr. Radcliffe opined that Savage Arms

could have reduced the likelihood of barrel failure by making the hole shallower and by

manufacturing it with tools that created cut marks with rounded edges, rather than the angular cut

marks he observed. According to Dr. Radcliffe, these alternative manufacturing practices and

design would have decreased the stress on the barrel when fired, reducing the likelihood of barrel

failure.




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Palatka v. Savage Arms, Inc.

        To pursue a design defect, Michigan law requires a plaintiff to show, in part, that “a practical

and technically feasible alternative production practice was available that would have prevented the

harm without significantly impairing the usefulness or desirability of the product to users and

without creating equal or greater risk of harm to others.” Mich. Comp. Laws § 600.2946(2). Dr.

Radcliffe’s design opinion complies with the requirements of Michigan Law and should not have

been excluded. Likewise, his manufacturing opinion is also admissible. As discussed previously,

a plaintiff proves a manufacturing defect by showing that the product was not manufactured in

conformity with the manufacturer’s specifications and that this nonconformity caused the plaintiff’s

injuries. Upon examination, Dr. Radcliffe found that the rear sight hole in the 10ML-II at issue was

deeper than specified, and he reasoned that this additional depth increased stress on the barrel,

resulting in its failure and Rodney’s injuries. Such an opinion should have been admitted.

        Finally, the district court took issue with Dr. Radcliffe’s lack of testing of his proposed

alternative and his lack of knowledge concerning the amount of pressure generated in the barrel

during firing. Although the pressure generated by firing relates to the stress on the barrel, we

conclude that Dr. Radcliffe’s lack of knowledge on this topic goes to the weight to be given to his

opinion, not to its admissibility. Dr. Radcliffe is of the opinion that an alternative design would have

reduced the likelihood of barrel failure. His opinion bears none of the “red flag” that we have held

may justify exclusion, such as: “reliance on anecdotal evidence, improper extrapolation, failure to

consider other possible causes, lack of testing, and subjectivity.” Newell Rubbermaid, Inc. v.

Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012). How he arrived at this opinion can be explored

at trial, and the fact that he did not consider barrel pressures can be highlighted on cross-examination


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Palatka v. Savage Arms, Inc.

to question the weight that should be given to his opinion. It does not, however, render his opinion

inadmissible.

C. Dr. Martin Crimp

        The Plaintiffs’ second causation expert, Dr. Martin Crimp, is also a professor at Michigan

State University. He was offered as an expert on materials science who would testify about the

structure and properties of the metal used to manufacture the 10ML-II. Like Dr. Radcliffe, Dr.

Crimp also concluded that the entire 10ML-II product line suffered from a design defect and that

the particular 10ML-II Rodney used was defectively manufactured.

        1. Dr. Crimp’s Design Opinion

        The stainless steel version of the 10ML-II is designed to be manufactured from 416R

stainless steel.   During his investigation Dr. Crimp discovered that 416R stainless steel is

“martensitic,” meaning that it is created through a quench and temper treatment. Martensitic steels

are designed to have high strengths and to be fracture resistant. The high “toughness” of martensitic

steels makes them difficult to machine and shape, however. To improve machinability, sulfur is

added to martensitic steels like 416R. This additional sulfur combines with manganese in the steel

to form manganese sulfide particles, which are hard, difficult to deform, and adhere poorly to the

surrounding steel. The sulfide particles create voids in the microscopic structure of the steel,

allowing it to be more easily machined. According to Dr. Crimp, the improved machinability comes

at the cost of increased susceptibility to fracture.

        Dr. Crimp examined sections of the barrel of the 10ML-II at issue using three different

techniques: reflected light optical microscopy, scanning electron microscopy, and energy dispersive


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Palatka v. Savage Arms, Inc.

x-ray analysis. Each of these methods allowed Dr. Crimp to examine the microscopic structure of

the barrel and to observe the arrangement of the sulfide particles in the metal. Based on his

observations, Dr. Crimp concluded that the sulfide particles in the 416R stainless steel caused the

metal to be “anisotropic.”

       “Anisotropic” generally means that a material will have different properties throughout the

body of the material. In the case of the 416R stainless steel observed by Dr. Crimp, the sulfide

particles stretched along the length of the barrel. Based on the presence of these “strings” of

sulfides, Dr. Crimp concluded that cracks would be expected to propagate down the length of the

barrel as the gun is repeatedly fired. To explain the anisotropic nature of the metal, Dr. Crimp

compared the properties of the barrel to those found in wood. Wood is anisotropic because it is

easier to split along the grains rather than perpendicularly to the axis of the tree. Therefore, wood

has different strength properties in different directions. In a similar way, Dr. Crimp concluded that

the “grains” of sulfide particles in the 416R stainless steel made it weaker along the length of the

barrel, which is the direction it split during Rodney’s accident. In all, Dr. Crimp concluded that the

anisotropic nature of 416R stainless steel made it inappropriate for use in gun barrels and was a

design defect in the 10ML-II product line. He opined that the guns could be made safer by

manufacturing them from a different type of material.

       2. Dr. Crimp’s Manufacturing Opinion

       Dr. Crimp also concluded that the 10ML-II used by Rodney was defectively manufactured

because chemical analysis of the barrel revealed that it contained greater levels of sulfur than

recommended for 416R stainless steel. According to Dr. Crimp, properly manufactured 416R


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Palatka v. Savage Arms, Inc.

stainless steel is composed of 0.13 percent sulfur. Chemical analysis of the barrel at issue showed

that it contained 0.17 percent sulfur, or 0.04 percent more sulfur than specified. Dr. Crimp

concluded that the increased sulfur content caused two defects in the barrel. First, it made the metal

softer than specified for 416R stainless steel. Second, an increased concentration of sulfur made the

metal more susceptible to intergranular fracture.

        Material specifications provided to the Plaintiffs by Savage Arms indicate that 416R stainless

steel should have a Brinell4 hardness in the range of 235-277. Because the section of the barrel

subjected to hardness testing was of inappropriate shape and size for Brinell testing, Dr. Crimp

performed a Rockwell C hardness test. Converting the results of the Rockwell C hardness test into

Brinell units using an appropriate method, Dr. Crimp found that the metal of the barrel at issue had

a Brinell hardness of 222, meaning that it was softer than the hardness specified for 416R stainless

steel. Based on this result, Dr. Crimp concluded in his report that the barrel had a Brinell hardness

lower than the specified range.

        In addition to a defect in the material’s hardness, Dr. Crimp concluded that increased

amounts of sulfur caused “intergranular factures” in the barrel. The intergranular fractures occurred

in areas with high concentrations of sulfide particles. The material fractured at those locations

because the steel was unable to flow, or flex, in the proper proportions (known as “plastic

deformation”) when subjected to stress. Describing the issue another way, Dr. Crimp concluded that

the sulfide particles are not ductile, meaning they do not deform under stress. As the concentration



4
 The Brinell hardness scale is one of a number of measurements engineers use to categorize the hardness of
materials.

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Palatka v. Savage Arms, Inc.

of sulfur increases in the metal, more sulfides are created. This increases the metal’s machinability

but also increases the number of structural weaknesses found in it. Without an appropriate amount

of metal between the sulfide particles to serve as a “ligaments,” which allow the metal to deform,

the metal becomes more susceptible to fractures. Based on the intergranular factures Dr. Crimp

observed, he concluded that the barrel was metallurgically flawed, did not conform to design

specification, and was not proper for its intended use.

       3. Dr. Crimp’s Opinions are Admissible

       Much like those offered by Dr. Radcliffe, we conclude that Dr. Crimp’s opinions are

admissible and that the district court abused its discretion by excluding them. The district court did

not question Dr. Crimp’s qualification and found him to be well-qualified in the field of materials

science and engineering. The court found that his opinions should be excluded because he could

not identify the proximate cause of the barrel’s failure and did not propose a feasible alternative

design that would have prevented the accident. Upon review of the record, we find that the district

court erred on these two points.

       First, after examining the barrel, Dr. Crimp found that the 416R stainless steel was

anisotropic. The sulfide particles in the metal created weaknesses running along the length of the

barrel, making it more susceptible to fracture. Dr. Crimp concluded that these weaknesses, which

were intentionally included in order to improve the metal’s machinability, caused intergranular

factures in the material, rendering it “flawed from a metallurgical standpoint.” Thus, the proximate

cause of the barrel’s failure, in Dr. Crimp’s opinion, was use of a metal that was inappropriate for

gun barrels. Second, Dr. Crimp testified at the Daubert hearing that other, less anisotropic stainless


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Palatka v. Savage Arms, Inc.

steels exists and are used to manufacture gun barrels. His opinion was that use of one of these types

of stainless steels would make the barrel less likely to fail. Accordingly, Dr. Crimp offered an

opinion as to the proximate cause of the barrel’s failure and an alternative design. Dr. Crimp’s

opinions were admissible.

D. Result of Reversal

       After finding Dr. Radcliffe and Dr. Crimp’s opinions inadmissible, the district court granted

summary judgment to the Defendant sua sponte. The court reasoned that summary judgment was

appropriate because without expert opinions the Plaintiffs could not maintain products liability

claims under Michigan law. The parties have put forth arguments as to the propriety of the sua

sponte grant of summary judgment. Because Dr. Radcliffe and Dr. Crimp were improperly

excluded, the court need not consider these arguments. Dr. Radcliffe and Dr. Crimp’s opinions were

admissible, and the district court should not have granted summary judgment to the Defendant.

Therefore, the court reverses summary judgment on the design defect, manufacturing defect, and

failure to warn claims. These causes of action will be remanded to the district court.

                               I. ALLEGEDLY SIMILAR INCIDENTS

       The Palatkas also appeal the district court’s exclusion of allegedly similar incidents

involving other 10ML-II firearms. We find that the district court did not abuse its discretion and

affirm exclusion of this evidence.

A. Standard of Review

       A trial court’s decision to exclude evidence of other similar incidents is reviewed for an

abuse of discretion. Surles ex rel. Johnson, 474 F.3d at 296; Rye v. Black & Decker Mfg. Co., 889


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Palatka v. Savage Arms, Inc.

F.2d 100, 101 (6th Cir. 1989). “A district court abuses its discretion if it bases its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence.” Brown v. Raymond

Corp., 432 F.3d 640, 647 (6th Cir. 2005) (internal quotations omitted). “‘[H]eavy reliance is placed

on the discretion of the trial judge’ in admitting or excluding evidence of prior accidents, and the

trial judge’s decision is to be given ‘great latitude.’” Rye, 889 F.2d at 101-02 (quoting Rhodes v.

Michelin Tire Corp., 542 F. Supp. 60, 62 (E.D. Ky. 1982); Moran v. Vermeer Mfg. Co., 742 F.2d

456, 458 (8th Cir. 1984)).

B. Other 10ML-II Failures

        The Plaintiffs sought to introduce evidence that other 10ML-IIs failed under circumstances

that were substantially similar to those leading to Rodney’s injuries. Specifically, the Plaintiffs

identified two cases, one from Tennessee and one from Canada, in which the plaintiffs sued Savage

Arms after sustaining personal injuries when their 10ML-II muzzleloaders exploded during use.

Based on reports produced by the Defendant during discovery, the Plaintiffs also identified eight

other incidents in which the barrels of 10ML-IIs failed.

        In the district court the Plaintiffs asserted that these ten incidents were admissible for the

purpose of proving that the 10ML-II was defective, that the Defendant knew it was defective, and

the Defendant failed to warn users of the defect. The Plaintiffs claimed that the other incidents were

substantially similar to Rodney’s accident for at least four reasons. First, like Rodney’s accident,

all of the other incidents involved the stainless steel version of the 10ML-II. Second, the location

of the barrel failure in the other incidents was at or near the same location (at the base of the barrel

near the drilled hole) as the failure that occurred in Rodney’s accident. Third, the operators of the


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other 10ML-IIs properly loaded and used their guns. Finally, the Defendant denied liability in the

other incidents, claiming that the 10ML-IIs most likely failed because users double-loaded the

firearms.

       During the first final pretrial hearing, the district court heard arguments concerning the

Defendant’s motion to exclude the allegedly similar incidents. The court granted the motion for two

reasons. First, the court found that the evidence was not admissible because the Plaintiffs failed to

demonstrate that the other incidents were substantially similar to the facts before it. To be

substantially similar, the court noted that the Plaintiffs would have to rule out other causes of the

allegedly similar incidents, but they were unable to do so on the limited record before the court.

       Second, the court held that even if the incidents were similar they were still inadmissible

under Federal Rule of Evidence 403. None of the incidents highlighted by the Plaintiffs had been

reduced to a judgment nor had their cause been determined. If admitted, it would have been

necessary for the court to conduct mini-trials of each of the ten similar incidents in order to

determine causation. Trying those ten incidents within the course of the Plaintiffs’ case would have

delayed the trial, misled the jury, and directed them away from the dispositive issue in the Palatkas’

case. Accordingly, the court excluded the allegedly similar incidents.

       Upon review, we affirm exclusion of the allegedly similar incidents on procedural and

substantive grounds. First, on appeal, the Plaintiffs fail to support their arguments with citations to

the evidentiary record. Federal Rule of Appellate Procedure 28(a)(9) requires that each argument

made by an appellant contain the “appellant’s contentions and the reasons for them, with citations

to the authorities and parts of the record on which the appellant relies.” In their opening brief, the


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Plaintiffs’ argument on the issue of allegedly similar incidents is nine pages in length. They support

their argument with four more pages in their reply. In thirteen pages of argument on the issue, the

Plaintiffs never cite to the evidentiary record. They fail to cite records that would aid this court in

determining whether the other incidents were substantially similar to Rodney’s accident. Without

citing to the record, the Plaintiffs assert that the firearms in the other incidents were stainless steel

10ML-IIs, that each incident involved a failure at approximately the same location on the barrel, and

that the guns had not been “double-loaded” by their operators. Lacking appropriate citations to the

record, the court has no grounds for determining whether the Plaintiffs’ arguments have any

evidentiary basis.

        In Seifert v. Graphic Packaging Int’l, 486 F. App’x 594, 596 (6th Cir. 2012) (per curiam),

the court found that filing “a brief with no record citations . . . indicates that [the appellants] had no

reasonable expectation of vacating the district court’s summary judgment in favor of [the

defendant].” Likewise, other circuits have held that by “making mere assertions, failing to challenge

the district court’s reasoning, [and/or] not citing any record support,” appellants waive certain

arguments on appeal. Sky Harbor Air Servs., Inc. v. Reams, 491 F. App’x 875, 881 (10th Cir. 2012);

see Conto v. Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001) (“[T]he Federal Rules of Appellate

Procedure require that appellants, rather than courts of appeals, ferret out and articulate the record

evidence considered material to each legal theory advanced on appeal.”). Because the Plaintiffs

have not supported their argument with proper citations to the record on appeal, the court affirms

exclusion of the allegedly similar incidents.




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        Second, even if the Plaintiffs had properly cited to the evidentiary record, the court would

still affirm the district court’s exclusion on substantive grounds. “Prior accidents must be

‘substantially similar’ to the one at issue before they will be admitted into evidence.” Croskey, 532

F.3d at 518 (citing Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 376 (6th

Cir. 1983)). For incidents to be “substantially similar,” they “must have occurred under similar

circumstances or share the same cause.” Id. The plaintiff “has the burden of showing the substantial

similarity between prior accidents and his own.” Id..

        Although the other incidents identified by the Plaintiffs involved barrel failures, they could

not point to or rule out any cause of those failures. Based on the Plaintiffs’ inability to describe the

factual circumstances surrounding each failure, the other incidents were properly excluded because

there was no showing that they were “substantially similar” to Rodney’s accident. Even if relevant,

the other incidents were not admissible because they would confuse the jury, be misleading on the

dispositive issues, and cause an undue delay in the trial while the specific facts of each failure were

adjudicated. See Fed. R. Evid. 403. Accordingly, the district court did not abuse its discretion by

excluding the allegedly similar incidents.

        Finally, the Plaintiffs’ reliance on Croskey v. BMW of N. Am., Inc., 532 F.3d 511 (6th

Cir. 2008) is misplaced. Croskey was a products liability case governed by Michigan law in which

the plaintiff was injured when the radiator on his girlfriend’s automobile ruptured, scalding him with

hot liquid. Id. at 513. He brought suit against the manufacturer alleging design defect and failure

to warn. Id. To support his claims, the plaintiff sought to introduce evidence of other similar

incidents. Id. at 513-14. The trial court excluded this evidence to the extent that the plaintiff would


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use it to show a design defect in the radiator. Id. at. 514. The lower court found that this evidence

could not be introduced because Michigan law prohibited the introduction of similar incidents for

this purpose. Id. After reviewing recent Michigan cases, the Sixth Circuit reversed. The court held

that “it was error for the district court to make a blanket exclusion of all ‘other incidents’ evidence

by plaintiff to prove a negligence claim involving design defect.” Id. at 518.

        The Plaintiffs’ reliance on Croskey in the instant case ignores a critical distinguishing feature

of that case. The district court in Croskey found that other incidents involving the radiator were

substantially similar to the events leading to the plaintiff’s injuries. It then excluded those incidents

based on an erroneous belief that Michigan law prohibited introduction of other incidents for the

purpose of proving a design defect.

        In the present case the district court excluded the other incidents because the Plaintiffs failed

to show that the other incidents were substantially similar to the events surrounding Rodney’s

injuries. Accordingly, the district court’s exclusion of this evidence was not based on an erroneous

view of the law, but on a determination that the other incidents were not substantially similar.

Therefore, the Plaintiffs reliance on Croskey is unavailing.

                                           CONCLUSION

        The Plaintiffs appeal from a grant of summary judgment by the district court. For all of the

foregoing reasons, we reverse the district court’s exclusion of the Plaintiffs’ expert witnesses, Dr.

Radcliffe and Dr. Crimp. Because exclusion of the expert witnesses was inappropriate, we also

reverse the grant of summary judgment on the design defect, manufacturing defect, and failure to




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warn claims. We affirm the district court’s exclusion of evidence of allegedly similar incidents.

This case is remanded to the district court for further proceedings consistent with this opinion.




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