John A. Fiano
J.E.S. Supply Depot, Inc. et al.
Caption Date: January 12, 2018
(with first initial, no space for Sullivan, Dorsey, and
Walsh): Dupuis, Renee, J.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT,
REMINGTON ARMS COMPANY, LLCâS, MOTION FOR SUMMARY
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. 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, Remingtonâs motion is ALLOWED.
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 Fianoâs finger. Fiano
subsequently filed the present lawsuit alleging the pistol
was defectively designed, and hired Greg Danas ("
Danas") to serve as his liability expert.
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.
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. Danasâ 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.
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
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.
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. 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 Engâg, 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 expertâs 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
considering the reliability of an expertâs scientific
opinion, the Supreme Judicial Court has instructed Courts to
consider whether the expertâs 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).
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
expertâs 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. Danasâ 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, ...