Adam Hartman v. Ebsco Industries, Incorporated , 758 F.3d 810 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3398
ADAM HARTMAN,
Plaintiff-Appellant,
v.
EBSCO INDUSTRIES, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:10-CV-528-TLS — Theresa L. Springmann, Judge.
____________________
ARGUED APRIL 14, 2014 — DECIDED JULY 10, 2014
____________________
Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit
Judges.
FLAUM, Circuit Judge. Adam Hartman’s father gave him a
muzzleloading rifle in 1994. Like many older muzzleloaders,
the gun was designed to use black powder as a propellant.
As such, the muzzleloader ignited newer, pelletized propel-
lants erratically. In 2008, Hartman installed a kit on his
gun—sold by KR Warranty, the maker of the rifle—that
modified the muzzleloader and enabled it to ignite new pro-
2 No. 13-3398
pellants more reliably. The next day, Hartman was sighting
in his “upgraded” muzzleloader when the gun unexpectedly
discharged as he was trying to load it. The surprise firing of
the weapon caused the ramrod and a patched round ball to
pass through Hartman’s hands and arm, inflicting serious
injury. Hartman sued KR Warranty on theories of negligence
and strict liability. However, Indiana has a ten-year statute
of repose for products-liability actions, and his gun was then
fourteen years old. There are two exceptions to the statute,
but we agree with the district court that Hartman cannot sat-
isfy either of them. We affirm.
I. Background
KR Warranty began manufacturing the LK-93 Wolverine
muzzleloader in 1994 (the company was then called Modern
Muzzleloading, and the guns themselves sold under the
Knight Rifles brand). That same year, Hartman’s father gave
him a Wolverine. Hartman used the rifle for years; by his es-
timate, he fired it between 500 and 600 times before his acci-
dent.
As originally manufactured, the Wolverine used a #11
percussion cap as its firing mechanism. A percussion cap us-
es a volatile chemical to provide a spark that ignites the pri-
mary black powder charge when struck by the gun’s ham-
mer or striker bolt. See generally 10 Innovations that Led to the
Modern Bullet, Fulminate of Mercury/Percussion Cap, HOW
STUFF WORKS, http://www.howstuffworks.com/10-bullet-
innovations4.htm#page=4 (last visited July 9, 2014). Once ig-
nited, this black-powder charge propels the gun’s projec-
tile—either a bullet or a patched round ball (a lead ball
wrapped in lubricated cloth)—out of the barrel. The mechan-
No. 13-3398 3
ical part of many modern muzzleloaders—with “in-line”
locks, rather than older “sidelock” guns—looks like this:
Kalkomey Enters., Inc., In-Line Muzzleloader, TODAY’S
MUZZLELOADER COURSE, http://www.hunter-ed.com/muzzle
loader/studyGuide/In-Line-Muzzleloader/222099_700062667
(last visited July 9, 2014) (modified).
Many newer muzzleloader models employ a primer-cap
mechanism—originally designed for use in shotguns—
which provides a hotter spark when struck by the striker.
Primer caps allow muzzleloader users to eschew black pow-
der as a propellant in favor of synthetic Pyrodex pellets
(which are manufactured by nonparty Hodgdon). Hartman
tried to use Pyrodex pellets in his percussion-cap-equipped
Wolverine at some point after the pellets were introduced,
but the pellets require hotter temperatures for ignition and
the Wolverine would not reliably spark them.
4 No. 13-3398
In November 2008, Hartman bought a Knight 209 Primer
Extreme Conversion Kit for his Wolverine. KR Warranty al-
so manufactured the conversion kit. The kit replaced the #11
percussion-cap firing system with a #209 shotgun-primer
system. The conversion kit was meant to deliver a hotter
spark and thereby ignite Pyrodex pellets more reliably.
Hartman installed the kit himself on November 28, 2008.
The next day Hartman and a few friends went to a gravel
pit to sight in the rifle. Hartman fired two shots and did not
swab the Wolverine’s barrel between shots. He fired a coni-
cal bullet with his first shot and a patched round ball with
the second. Before attempting to load the rifle for a third
shot, Hartman put a primer cap on the nipple of the breech
plug (see the above diagram), though he knew that a live
primer cap should not be put on the nipple before loading.
He then loaded two Pyrodex pellets into the muzzle of the
rifle followed by another patched round ball. Hodgdon
warns against using patched round balls with Pyrodex pel-
lets, because using round balls instead of bullets when firing
Pyrodex pellets carries an increased risk of unexpected dis-
charge. Hartman attempted to seat the patched round ball in
the barrel of the gun with a ramrod. The Wolverine then un-
expectedly discharged, causing both the ramrod and the
round ball to pass through both of Hartman’s hands and his
right forearm.
On November 24, 2010, Hartman filed suit against sever-
al defendants in the Elkhart Circuit Court. For purposes of
this appeal, the relevant defendants are KR Warranty and
EBSCO Industries; in 1998, EBSCO acquired the stock of KR
Warranty’s corporate predecessor, Modern Muzzleloading.
Hartman originally named a third defendant, PI, Inc.—
No. 13-3398 5
which bought the Knight Rifle line in 2010—but the district
court’s grant of summary judgment for PI was unopposed.
KR Warranty remains under the EBSCO corporate umbrella
but appears to exist for the limited purpose of administering
warranties for and claims against pre-PI sale rifles. The de-
fendants quickly removed the case to federal district court.
(From here on out, we’ll refer to the defendants just as “KR
Warranty,” because as we’ll see, Hartman waived any ar-
guments related specifically to corporate parent EBSCO.)
The district court ultimately granted summary judgment for
KR Warranty, concluding that Indiana’s statute of repose—
which sets a ten-year outer limit on products liability actions
in Indiana—barred Hartman’s claim.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Olson v. Morgan, 750 F.3d 708, 713 (7th Cir.
2014). Indiana’s statute of repose ordinarily bars cases where
“the damages incurred by plaintiff occurred more than ten
years after the product was first placed in commerce,” Dague
v. Piper Aircraft Corp., 418 N.E.2d 207, 211 (Ind. 1981); Ind.
Code § 34-20-3-1. The statute is of course designed to remove
the specter of open-ended liability on product manufacturers
for very old products. See, e.g., Stump v. Ind. Equip. Co., 601
N.E.2d 398, 402 (Ind. Ct. App. 1992). Hartman was injured
fourteen years after the purchase of his Wolverine. But there
are two exceptions to the statute: (1) where a manufacturer
refurbishes a product to extend its useful life, or (2) where a
defective new component is incorporated into the old prod-
uct. Richardson v. Gallo Equip. Co., 990 F.2d 330, 331 (7th Cir.
1993). The question we face is whether one of these excep-
tions can breathe life into Hartman’s case, though our analy-
6 No. 13-3398
sis of the second exception will require us to address the dis-
trict court’s partial exclusion of Hartman’s expert’s testimo-
ny.
A. Extension of useful life
The first exception to the statute of repose resets the limi-
tations period where there is “any reconstruction or recondi-
tioning … which has the effect of lengthening the useful life
of a product beyond what was contemplated when the
product was first sold.” Richardson, 990 F.2d at 331. Howev-
er, in Richardson (which, despite our inability to give a de-
finitive interpretation to a state statute, has been accepted by
Indiana courts as a reasonable reading, see, e.g., Florian v.
Gatx Rail Corp., 930 N.E.2d 1190, 1201 (Ind. Ct. App. 2010)),
we reasoned that the repose period is not reset by mere
product upgrades or by adding new components that do not
lengthen the product’s useful life. Richardson, 990 F.2d at331–32.
Hartman cannot take advantage of this exception for two
reasons. First, he cannot show that the conversion kit ex-
tended the useful life of his gun. Second, we doubt that the
statute of repose could ever be reset by a user-installed com-
ponent like the conversion kit.
Hartman’s expert, gunsmith Steven Howard, argued that
the 209 conversion kit makes the Wolverine more accurate,
more reliable, and gives it a higher muzzle velocity—making
it, in effect, “an entirely new rifle.” But KR Warranty’s unre-
butted expert testimony gives Hartman’s claim the lie: it
seems the only useful metric of a muzzleloader’s lifespan is
its barrel and bore. The conversion kit may make the gun
more powerful, but it has no effect on either the barrel or
No. 13-3398 7
bore and therefore has no effect on how long the gun will be
usable. In other words, it is irrelevant that a change enhances
the product’s performance if it does not also extend its useful
life.
Hartman also argues that black powder muzzleloaders
were no longer commonly used when he installed the con-
version kit, so, in his view, the conversion kit did extend the
useful life of the gun. But just because an item’s performance
seems comparatively poor as technology improves doesn’t
mean the product is obsolete for the purposes of the statute
of repose. Consider, for example, an old laptop computer.
An upgraded processer that increased the computer’s speed
would make the computer more desirable, but would not
extend its life. The computer could otherwise continue to
function as it always had—even if other, faster computers
became available and the performance of the old laptop now
seemed comparatively inadequate. On the other hand, sub-
stituting a new battery for one on its last legs would extend
the computer’s useful life—the new battery would be neces-
sary to ensure that the computer could still function in the
way it always had. This is the type of reconditioning that can
reset the statute of repose. But modifications like the conver-
sion kit fall squarely into the upgrade camp.
We note that even if Hartman could show that the con-
version kit did extend the life of his muzzleloader, we still
doubt whether the first exception to the statute would apply.
The usual case invoking this exception involves a “manufac-
turer-refurbished” product—i.e., a product that is retrofitted
or given new life by the manufacturer of the original prod-
uct. See Carlson Rests. Worldwide, Inc. v. Hammond Prof’l
Cleaning Servs., 2:06-CV-336, 2008 WL 4889687, at *4 (N.D.
8 No. 13-3398
Ind. Nov. 12, 2008) (concluding that the statute of repose
was reset where the manufacturer modified the product af-
ter it reached the consumer in order to extend its useful life);
Miller v. Honeywell, Inc., IP98-1742-C-M/S, 2001 WL 395149,
at *6 (S.D. Ind. Mar. 7, 2001) (the first exception to the statute
of repose applies “if the manufacturer rebuilds the product,
to the point of significantly extending the life of the product
and rendering it in like-new condition.”). In contrast, we are
not aware of any case in which a manufacturer is held re-
sponsible for selling a non-defective new component, but the
consumer or another party installs the component incorrect-
ly. Cf. Denu v. W. Gear Corp., 581 F. Supp. 7, 8 (S.D. Ind. 1983)
(“[T]he introduction into commerce of a reconditioned
product by a manufacturer may give rise to expectations of
safety which would support a products liability action.”). If
a consumer is injured by a defective new component, his re-
lief from the statute’s time bar comes under the second ex-
ception, not the first.
B. Defective new component
We turn now to the second exception to the statute of re-
pose. This exception applies where a manufacturer “mere-
ly … incorporat[es] a defective component into an old prod-
uct.” Richardson, 990 F.2d at 331. This exception might reach
two different scenarios. First, suppose a manufacturer issues
a new component for an old product and the new compo-
nent is not itself defective. Suppose too that the old product
is not defective; however, when the new component is add-
ed to the old product, the old product becomes unsafe by
some meshing of components new and old. The exception
would permit the owner of the old product to sue the manu-
facturer despite the passage of more than a decade.
No. 13-3398 9
A second scenario would be if the new component is it-
self defective. In this case, the term “exception” is really a
misnomer. The suit would be permitted because the manu-
facturer cannot escape products liability by placing the
shoddy new component (which would ordinarily be subject
to suit for a decade if it stood on its own) into an older prod-
uct that happens to be protected by the statute of repose. Id.Hartman claims there were two product defects: a failure
to warn and a design defect. We’ll first deal with his argu-
ment that KR Warranty failed to warn him about the danger
of accidental discharge from not swabbing the barrel of the
rifle between shots. When Hartman received the Wolverine
in 1994, the instructions told him to swab the barrel between
shots while sighting in—but the warning was phrased only
as a “recommendation” and was concerned with accuracy,
not safety. KR Warranty did include actual warnings in its
2007 and 2011 “Born to Hunt” manuals, which may have ac-
companied new Knight Rifles sold at those times. Hartman
argues that KR Warranty’s inclusion of warnings in those
other manuals shows that it should have included the same
warning in 2008, when Hartman bought the conversion kit.
But the district court granted summary judgment for KR
Warranty partly because it found that KR Warranty had no
duty to warn with respect to the conversion kit in the first
place.
It’s not entirely clear what Hartman is arguing about KR
Warranty’s claimed failure to warn, though as we’ll see, it
doesn’t make much of a difference in this case. At oral ar-
gument, Hartman’s counsel told us that he wished to focus
on “the original Wolverine muzzleloader rifle, … [which]
was defective as equipped with the … conversion kit.” This
10 No. 13-3398
implies that Hartman was advancing a theory—consistent
with the first scenario we posited—that neither the muzzle-
loader nor the conversion kit was defective, but that the
muzzleloader became defective once it was outfitted with
the conversion kit. Yet Hartman’s brief seems to argue that
the conversion kit was a defective product standing alone,
because the recessed face of the conversion kit’s new breech
plug made it more likely that latent embers could get
trapped in the breech plug and thereby prematurely ignite
newly loaded propellant. Both parties agree that this re-
cessed-face design was not itself a defect and was a neces-
sary feature for the Wolverine to be able to ignite #209 pri-
mers. The problem, Hartman says, is that KR Warranty
should have warned him about the dangers of latent embers
when it sold him the conversion kit. This argument goes to
the second permutation of the statute of repose exception
that we discussed above.
We do not need to sort out which one of these claims
Hartman wishes to pursue, however, because both versions
depend on the same showing. In order to survive summary
judgment, Hartman must show that the conversion kit in-
creased the risk of latent embers or unexpected discharge be-
yond what already existed in the Wolverine. Why? Because
if the installation of the conversion kit did not increase the
existing risk of the gun accidentally firing, then KR Warran-
ty’s duty to warn (if ever there was one) arose in 1994, when
Hartman purchased the gun. And in that case, the statute of
repose would bar Hartman’s action because the conversion
kit introduced no new defect that would reset the ten-year
clock (the statute of repose applies to failure to warn claims,
just as it does to any other products liability action, Johnson
v. Kempler Indus., Inc., 677 N.E.2d 531, 536 (Ind. Ct. App.
No. 13-3398 11
1997)). Moreover, if the conversion kit did not increase the
likelihood of latent embers, then it could not itself have been
defective, either—because it would not have introduced a
new risk into the operation of the Wolverine. Hartman
would therefore be unable to proceed with his suit alleging a
defect in the conversion kit alone.
Because of the showing Hartman must make, our review
actually turns on the district court’s decision to exclude por-
tions of Steven Howard’s testimony. Howard testified that
the 209 breech plug did in fact increase the likelihood of la-
tent embers, so if his testimony should have been included,
then Hartman survives summary judgment (as we resolve
any factual disputes in his favor at this stage).
It is for the district court, pursuant to Federal Rule of Ev-
idence 702, to serve as gatekeeper on expert testimony, en-
suring that such testimony is “not only relevant, but relia-
ble.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993).
The rubric for evaluating the admissibility of expert evi-
dence considers whether the expert was qualified, whether
his methodology was scientifically reliable, and whether the
testimony would have assisted the trier of fact in under-
standing the evidence or in determining the fact in issue.
Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir.
2011). An expert’s methodology can be evaluated by consid-
ering its error rate, whether the methodology has been or is
capable of being tested, whether it has been subject to peer
review, and whether it is generally accepted in the relevant
community of experts. Id. The district court employed the
correct legal standards in evaluating the admissibility of
Howard’s expert testimony, so we review the district court’s
12 No. 13-3398
application of those standards for abuse of discretion. Lewis
v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
Howard’s qualifications as an expert were not chal-
lenged. But the district court nonetheless found Howard’s
testimony inadmissible under Daubert. Howard’s testimony
was purportedly based on common sense, as he indicated
that it was logical to conclude that a recessed face is more
likely to retain embers than the concave design of the old
breech plug. However, the district court was unimpressed,
because Howard’s theory was unsupported by evidence.
The court noted:
Howard did not perform any kind of testing to prove
that the 209 breech plug is more likely to retain latent
embers. He introduced no evidence that his theory
has been subjected to peer review or publication, or
has been generally accepted among other firearms
experts. He did not discuss the known or potential er-
ror rate of his theory relating to the 209 breech plug.
He stated, instead, that “the problem of latent sparks
in this Danger zone is easily foreseeable especially
during the design process and this problem should
have been addressed when the 209 Conversion Kit
was in the developmental stage.”
Hartman v. EBSCO Indus., Inc., 3:10-CV-528-TLS, 2013 WL
5460296, at *11 (N.D. Ind. Sept. 30, 2013). Hartman points to
no evidence that would contradict the district court’s find-
ings. Thus, the court’s reasoned decision was not an abuse of
discretion.
Hartman’s next claim of defect is that KR Warranty
should have included a modified cleaning jag with the con-
No. 13-3398 13
version kit. A jag is a tool that screws on to the end of the
ramrod and is inserted into the barrel of the muzzleloader
between shots to clean the barrel and clear away debris and
latent embers that might cause accidents. The testimony of
Hartman’s expert Howard was again pivotal. Howard testi-
fied that KR Warranty’s failure to include a specially de-
signed jag—one that could reach into the recessed face of the
209 breech plug—made the product defective. In support,
Howard designed and made a model of a new jag with a
special tip that would supposedly fit into the recessed
breech plug and better wipe away any embers that might be
left behind. However, Howard’s new jag had never been
used, his design had not been tested, and no similar jag was
in use anywhere in the industry.
The district court excluded Howard’s alternative jag.
Under Indiana law, expert testimony is required in order to
show a design defect where the defect’s existence depends
on matters beyond the common understanding of lay jurors.
Cansler v. Mills, 765 N.E.2d 698, 706 (Ind. Ct. App. 2002); see
also Witted v. Gen. Motors Corp., 58 F.3d 1200, 1206 (7th Cir.
1995) (noting, in applying Indiana law, that “to allow a
plaintiff to establish the existence of a design defect by his
mere assertion is ludicrous”). The court found that How-
ard’s methodology was unreliable and would not assist the
trier of fact. See Bielskis, 663 F.3d at 893. The court noted that
Howard’s methodology was not “scientifically reliable, …
[had] not been tested, or subjected to peer review or publica-
tion[, and that] his jag model [had] never been used in a
working firearm.” Hartman, 2013 WL 5460296, at *9.
Hartman argues that the district court committed a legal
error by too rigidly applying the Daubert factors without
14 No. 13-3398
adapting its inquiry to firearms experts. He says that the Su-
preme Court’s decision in Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999), eschewed a rigid application of the “sci-
entific” factors of Daubert, and that district courts must take
such a flexible approach in evaluating testimony. Hartman
correctly states the law, but it does not help him here. The
hallmark of the Supreme Court’s expert testimony cases is
still reliability. “The objective of [Daubert] is to ensure relia-
bility and relevancy of expert testimony. It is to make certain
that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho, 526 U.S. at
152. Howard’s modified jag was incomplete, inoperable, and
unlike those used by KR Warranty or its competitors. How-
ard’s musings on the jag’s superiority cannot “substitute for
scientific methodology and [are] insufficient to satisfy Daub-
ert’s most significant guidepost”: reliability. Chapman v. May-
tag Corp., 297 F.3d 682, 688 (7th Cir. 2002). The district court
was within its “considerable leeway” in finding Howard’s
testimony and his alternative jag unreliable. Kumho, 56 U.S.
at 152.
Even if the district court’s reliability determination was
incorrect, it had a second rationale for excluding the jag that
is independently sufficient. The court found the jag irrele-
vant. Expert testimony is inadmissible if it is not helpful to
the trier of fact, because it would not have “aid[ed] the jury
in resolving a factual dispute.” Deimer v. Cincinnati Sub-Zero
Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995). The testimony
must “fit the issue to which the expert is testifying [and be]
tied to the facts of the case.” Id. (internal quotation marks
omitted). An alternate jag—even if one could have been fea-
No. 13-3398 15
sibly marketed with the conversion kit—would not have
made a difference here because Hartman did not swab the
barrel of his Wolverine before it discharged. The statute of
repose cannot be reset if a new component, even if defective,
did not cause the injury. Black v. Henry Pratt Co., 778 F.2d
1278, 1283 (7th Cir. 1985).
We conclude by noting that even if Hartman were able to
survive summary judgment against KR Warranty, he would
still have no case against EBSCO. EBSCO had nothing to do
with the Wolverine or the 209 conversion kit. EBSCO had no
relationship with KR Warranty in 1994, as it did not acquire
KR’s stock until 1998. From that point forward EBSCO
owned, but did not operate, KR Warranty. KR Warranty
continued to have its own operations and separate officers.
The district court found this corporate-parent relationship
insufficient to expose EBSCO to Hartman’s claim. Hartman
nominally appeals the grant of summary judgment for
EBSCO, but makes no mention of the district court’s corpo-
rate-parent holding. The arguments are therefore waived.
See, e.g., Wachovia Secs., LLC v. Banco Panamericano, Inc., 674
F.3d 743, 758 (7th Cir. 2012).
The district court’s grant of summary judgment is
AFFIRMED.