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Fiano v. J.E.S. Supply Depot, Inc.

Superior Court of Massachusetts, Bristol

January 16, 2018

John A. Fiano
v.
J.E.S. Supply Depot, Inc. et al.[1]

          Caption Date: January 12, 2018

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Dupuis, Renee, J.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT, REMINGTON ARMS COMPANY, LLC’S, MOTION FOR SUMMARY JUDGMENT

          Renee Dupis Justice

         This case arises out of accidental shooting of a firearm manufactured by the defendant, Remington Arms Company, LLC (" Remington" or the " defendant"). The plaintiff, John A. Fiano (" Fiano" or " plaintiff"), was holding the firearm when it discharged, and as a result thereof suffered an injury to his hand. The complaint sounds in three counts and alleges negligence, breach of express warranty, and breach of implied warranty against the defendant based upon the theory that the firearm was defectively designed.[2] Remington now moves for summary judgment arguing that Fiano cannot prove any of his claims because he has not provided admissible expert testimony demonstrating the existence of a defect. For the reasons that follow, Remington’s motion is ALLOWED.

         BACKGROUND

         The facts material to this motion are not in dispute. On October 5, 2011, Fiano purchased a Remington Model 1911 semi-automatic pistol from J.E.S. Supply Depot, Inc. A few days later, Fiano inserted a loaded magazine into the pistol and attempted to release the slide. The slide had serrations on the front end, and Fiano placed his left hand on the top of the slide where the serrations were located. The pistol discharged, and a bullet struck Fiano’s finger. Fiano subsequently filed the present lawsuit alleging the pistol was defectively designed, and hired Greg Danas (" Danas") to serve as his liability expert.

         Danas’ curriculum vitae lists him as a " Firearms Expert" who has assisted counsel with trial preparation, and acted as an expert in the field of " Gun Safety and Design Issues" among many firearms related topics. Danas was a licensed custom gunsmith from 1987 to 2014, and during the same time frame, he was the president of a shooting school where he trained over 20, 000 students in the use of firearms. Danas also worked at a retail gun shop for twenty years, and has repaired firearms for over twenty-five years. He holds a U.S. patent for a trigger control device.

         Danas provided a two-page expert report and gave deposition testimony to Remington. Although Danas found nothing mechanically wrong with the pistol, he testified that it was defectively designed due to the presence of the front slide serrations. Danas’ expert report noted that, " with the advent of forward slide serrations, hand injuries [have become] a common occurrence." When questioned about this statement during his deposition, Danas testified that it was based only on customers in his place of business who he had seen with hand injuries caused by grabbing the front slide serrations. He admitted that he had performed no other research to support his conclusions.

         Danas also testified that while Fiano was not handling the pistol correctly at the time of the shooting, it was his opinion that the presence of the front slide serrations caused Fiano to grab the pistol at the front end; however, Danas admitted that before reaching this conclusion, he did not ask Fiano how he handles pistols without serrations, or why he gripped this particular pistol in the way he did on the day of incident.

         DISCUSSION

         Summary judgment is appropriate when the record shows that " there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c); DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he is entitled to judgment. NG Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party, and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll. of the Holy Cross, 388 Mass. 16, 17 (1983); see Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999). Applying this standard, the court concludes that plaintiff is unable to prove any of his claims because he has failed to provide competent evidence of a defect.[3]

         The plaintiff has brought claims for negligence, breach of express warranty, and breach of implied warranty of merchantability against Remington premised on a theory of defective design.[4] Massachusetts courts have routinely held, and indeed both parties agree, that expert testimony in design defect cases is required. See, e.g., Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993); Morrell v. Precise Eng’g, Inc., 36 Mass.App.Ct. 935, 936 (1994); Wiska v. St. Stanislaus Soc. Club, Inc., 7 Mass.App.Ct. 813, 821 (1979). The court acts as a " gatekeeper" in determining whether to allow expert testimony by assessing the validity of the process or theory underlying an expert opinion, and by determining whether the opinion should properly reach the trier of fact. See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). A witness is qualified to render an expert opinion if he/she has " sufficient education, training, experience and familiarity with the subject matter of the testimony." Commonwealth v. Richardson, 423 Mass. 180, 183 (1996) (citations omitted). In order to assist the trier of fact with understanding the evidence and determining a fact in issue, the expert’s opinion must " have a reliable basis in the knowledge and experience of his discipline." Lanigan, 419 Mass. at 25, quoting Daubert, 509 U.S. at 592; see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert to testimony of experts who are not scientists including those offering testimony based on " technical" and " other specialized knowledge").

         In considering the reliability of an expert’s scientific opinion, the Supreme Judicial Court has instructed Courts to consider whether the expert’s proposed theory has: (1) been subjected to peer review and publication; (2) been tested; (3) a known error rate; and (4) achieved general acceptance in the relevant scientific community. Id. at 25, citing Daubert, 509 U.S. at 593-94. Personal experiences or observations are admissible only if the proponent can " show that the method of personal observation is either generally accepted by the relevant scientific community or otherwise reliable to support scientific conclusions relevant to the case." Case of Canavan, 432 Mass. 304, 314 (2000). An opinion in which the underlying process or theory lacks reliability and is instead based on speculation alone, should not reach the trier of fact. See Lightlab Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 191 (2014).

         During his deposition testimony, Danas offered no objective evidence in support of his theory that front end serrations increase hand injuries. He failed to point to any studies, industrial publications or documents to support this theory or any testing done by him or others that confirmed it. Indeed, Danas conceded that he had done no research to determine if hand injuries occur more frequently in pistols with front end serrations or if the presence of such serrations make it more likely that a person will grip the front end of the slide. His opinion was based only on customers who came in his retail business, approximately six people over the last thirty-five years, who he observed with hand injuries which he attributed to the front end serrations. He kept no records or documentations of these people or injuries. Although an expert’s personal experience may be admissible if the method of observation is generally accepted among the relevant community, Danas has not shown that anyone in the gun design field or firearms industry shares his opinion or method of observation, or has documented any increase in hand injuries since the advent of front end serrations. Danas’ opinion, therefore, amounts to nothing more than conjecture, surmise, and speculation and are inadmissible. See, Ducharme v. Hyundai Motor Am., 45 Mass.App.Ct. 401, 407 (1998) (subjective opinion based on conjecture, surmise, ...


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