View this article online: https://www.insurancejournal.com/news/east/2022/07/18/676287.htm
A federal court in New Hampshire has denied gunmaker Sig Sauer’s bid to block a product liability lawsuit brought by a man who alleges he was struck by a bullet in the leg because his pistol fired without a trigger pull when he was removing the gun from its holster.
The plaintiff, Kyle Guay, alleges that Sig Sauer sold the P320 pistol in an unreasonably dangerous condition. The suit claims the pistol has a defect that allows it to fire without the trigger being pulled under certain conditions.
Sig Sauer had sought to avoid a trial based on its view that the plaintiff’s two expert witnesses should be excluded.
But U.S. District Judge Landya McCafferty declined the gunmaker’s bid to exclude the expert witnesses who offered opinions on the P320 pistol’s alleged defects.
The court noted that an expert’s testimony may be challenged on the grounds that the witness is not qualified to give the opinion, the opinion is not based on specialized knowledge, the opinion is not reliable, or the opinion is not relevant.
Judge McCafferty conducted a pre-trial hearing with the expert witnesses where Sig Sauer had the right to cross-examine. After the hearing, McCafferty found that both expert witnesses and the bulk of their opinions are admissible.
McCafferty ruled that “there is sufficient evidence in the record for a reasonable jury to conclude, by a preponderance of the evidence, that Guay did not pull the P320’s trigger and that the gun discharged because of the design or manufacturing defects identified” by the two witnesses.
Guay’s suit alleges negligence, defective design, breach of warranties and unfair and deceptive marketing practices regarding a semi-automatic gun. It is being brought under the federal Magnuson-Moss Warranty Act, which governs consumer product warranties, and New Hampshire’s own consumer protection act. Sig Sauer is a foreign corporation with a principal office in Newington, New Hampshire.
The complaint cites dozens of incidents involving military and police personnel around the country where Sig Sauer pistols allegedly fired without the trigger being pulled and it claims that Sig Sauer has known for years about the alleged defect.
Guay’s Case
On the evening of January 28, 2020, Guay was wearing his Sig Sauer P320 gun in a Sig Sauer holster on the right side of his belt while walking his dogs. After the walk, Guay started to remove the holstered gun by pushing down on his belt and pulling up on the holstered gun. Guay said the gun fired and a bullet shot through his right thigh, causing nerve damage.
Guay asserts that he did not pull the gun’s trigger. Rather, he contends that the gun fired because a defect in its design or manufacture allows it to fire when it is jostled under certain conditions.
Sig Sauer has questioned Guay’s contention that he never pulled the trigger, pointing out that “nobody else was present” when Guy shot himself.
Sig Sauer’s main contention was that Guay’s two proposed expert witnesses, Peter Villani and Timothy Hicks, are unqualified and their opinions are unreliable.
Witness Villani has worked for the U.S. Department of Veterans Affairs Police since 2001 as a primary evidence custodian, senior firearms instructor/armorer, and operations officer with the rank of Major. His duties include detailed examination of guns used in the department and cleaning them once a year. During the pre-trial hearing, Villani testified that he also investigated an incident in which a police officer who worked for him was shot after his P320 discharged without a trigger pull.
Villani has also managed a shooting range and is certified by Sig Sauer as an “armorer” for several gun models, including the P320.
One of the defects Villani found was “rollover” on the striker foot and sear face and marks indicating that the sear and striker foot were not functioning as intended. He also found that the striker foot and striker housing had side-to-side movement that could cause the striker foot to land differently each time and, in his belief, cause the safety to be disengaged, allowing an unintended discharge.
Villani compared four P320s, including Guay’s, that had been involved in unintended discharges. He concluded that the four pistols “discharged without manipulation of the triggering mechanism.”
Sig Sauer contended that Villani is not qualified to opine about the design or manufacture of the P320 because he is not an engineer and has never worked in the design or manufacturing of guns.
The judge concluded that Villani is qualified to give his opinion to a jury based on his “extensive professional experience” even with “minimal” formal higher education.
“[Villani’s lack of engineering experience is less important than it might be in another case with a more complex machine,” the judge wrote. “Accordingly, neither a degree in engineering nor a lifetime designing firearms is necessary for Villani to develop sufficient practical experience to opine about how guns or gun safety devices are supposed to work.”
However, the judge did limit Villani’s opinion to his conclusions based on his testing, finding that he did not have any relevant experience about identifying the underlying cause of the defects he identified or about how they might be fixed.
Sig Sauer also opposed Hicks, who has a degree in mechanical engineering and is an engineer at Professional Analysis and Consulting, a firm that performs technical consulting in product performance and failure analysis and prevention. The bulk of Hicks’s experience is in the automotive industry. As a consultant engineer, Hicks has done certification tests on guns under California and Massachusetts regulations. He has also done tests for incidents involving guns. He holds certificates of eligibility from the California Department of Justice and Massachusetts Executive Office of Public Safety for certification testing of guns.
In his report, Hicks describes the process used to inspect and examine the guns in tests performed by a Sig Sauer expert under laboratory conditions. Hicks found that Guay’s gun had design and manufacturing defects that “led to the uncommanded (unintended) discharge of the firearm.”
Hicks noted that certain parts of the P320 were “molded in metal without further machining, allowing for uncontrolled variability, that the sear and striker foot had inconsistencies on their contact surfaces, including rollover, that minimized their actual contact, that those parts had misalignment, and that other parts had gaps that allowed movement which could cause misalignment.”
Sig Sauer contends that most of Hicks’s experience is in the auto industry and his experience with testing guns is too limited to qualify him to provide opinions about the design and manufacture of the P320 gun. But the judge again disagreed. “Hicks is a mechanical engineer with substantial experience, and he specializes in the technicalities of product performance and failure,” wrote McCafferty. “Accordingly, his training and experience provide a basis for expertise in the mechanical workings of a product, including a gun.”
In relation to the gunmaker’s criticism of the witnesses, the judge concluded: “Sig Sauer’s desire for absolute certainty is misplaced because the standard of proof in this case is preponderance of the evidence.”
The plaintiff originally sought punitive damages but the judge noted that those are not allowed under New Hampshire law. Instead, the plaintiff said he would seek enhanced compensatory damages. The plaintiff also withdrew his claim for negligent and intentional infliction of emotional distress.