United States District Court, W.D. Virginia, Roanoke Division
JAMES R. PUTMAN, JR., Plaintiff,
SAVAGE ARMS, INC., Defendant.
Michael F. Urbanski Chief United States District Judge.
matter comes before the court on Plaintiff James R. Putman,
Jr.'s ("Putman's") Motion to Exclude
Opinion Testimony of Steven Rodgers, filed on January 8,
2019. ECF No. 57. Defendant Savage Arms, Inc.
("Savage") responded on January 21. ECF No. 72.
Putman replied on January 29. ECF No. 86. The court heard
argument on February 1. ECF No. 89. For the reasons stated
below, the court DENIES Putman's motion.
Rule of Evidence 703 permits expert witnesses to base
opinions on facts or data "that the expert has been made
aware of or personally observed," as well as facts an
expert "in the particular field would reasonably rely
on." The trial judge serves as the
"gatekeeper" of expert evidence by determining its
admissibility and assessing the qualifications of the expert
purporting to offer it. Gen. Elec. Co. v. Joiner.
522 U.S. 136, 142 (1997). To establish "a standard of
evidentiary reliability," an expert must testify about
scientific knowledge. Daubert v. Merrell Dow Pharm..
Inc.. 509 U.S. 579, 589-90 (1993). To ensure relevancy,
the expert's evidence or testimony must "'assist
the trier of fact to understand the evidence or to determine
a fact in issue.'" Id. at 591 (quoting
Fed.R.Evid. 702). When faced with potential expert testimony,
the trial judge must make a "preliminary assessment of
whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in
issue." Id. at 592-93. In particular, the
Fourth Circuit Court of Appeals has "admonished that
'a plaintiff may not prevail in a products liability case
by relying on the opinion of an expert unsupported by any
evidence such as test data or relevant literature in the
field.'" Oglesby v. Gen. Motors Corp.. 190
F.3d 244, 249 (4th Or. 1999) (quoting Alevromagiros v.
Hechinger Co.. 993 F.2d 417, 422 (4th Or. 1993)).
offers Rodgers as an expert to opine on Putman's alleged
misuse of the Savage 10ML-II muzzleloader. Rodgers serves as
the Product Safety Manager for the parent company of
defendant Savage Arms.
argues Rodgers's conclusions are either unhelpful to the
jury or based on assumptions that have been disproven by
evidence. For instance, Rodgers states Putman's choice of
bullet may have caused the incident. ECF No. 68-3, at 6.
Putman asserts that whether Putman used the type of bullet
recommended by Savage is within the jurors'
understanding. Additionally, Rodgers characterizes the
PowerBelt bullet as an "integrated sub-based design
bullet," Id. at 3; this is the first time
anyone has ever identified the PowerBelt bullet this way.
Putman argues Rodgers does so to more closely align his
description with language used in the 10ML-II instruction
manual in "a transparent attempt to transform the facts
to match his theory." ECF No. 68, at 9.
points to several other assumptions in Rodgers's report
that he claims are not properly formed or supported. For
example, Rodgers opines that the amount of gunpowder Putman
used caused his injury but does not know how much gunpowder
was used and admits that overloading by this quantity of
gunpowder is expected, even when powder is properly measured.
Rodgers opines that Putman's injury was caused by an
improperly "seated" bullet, but Putman asserts that
this has been disproven by both Savage's and
Rodgers's own testing. See ECF No. 68-5 (the results of
Rodgers's "gun drop test" showing no midway
migration of the bullet); ECF No. 68-6 (the results of
Savage's testing of unseated bullet). Rodgers does not
know how much force it would take to separate a PowerBelt
bullet, ECF No. 68-1, at 83-84, has never seen a bullet
become stuck after separating, Id. at 135-37, and is
unaware of any reports from the field where a secondary
propellant bed formed in a muzzleloader. Id. at
138-39. Finally, Putman argues that Rodgers is unqualified to
critique Dr. Druschitz's conclusions because he has no
specialized scientific education and his recoil force opinion
is based on speculation and incorrect facts. Rodgers holds a
business degree and has no science background except for one
semester each of chemistry and physics. See ECF No. 68-3, at
12. He admits he does not know how a rupture of the barrel
would affect the recoil and does not know how much pressure
it takes to fracture a 10ML-II barrel or if a high-pressure
event is required to fracture one. ECF No. 68-1, at 146.
claims that Putman misreads Rodgers's opinion. Rodgers
never stated that the PowerBelt bullet alone caused the
accident but concludes a combination of events led to it,
including the type of bullet used and the overloading of the
powder. See ECF No. 68-3, at 6. Savage also argues
that, while a juror can read an instruction manual,
understanding the consequences of Putman's misuses is
beyond the purview of a lay juror. Neither would a juror
understand why Savage instructs shooters to use a .45 caliber
bullet with a sabot while using smokeless powder.
Rodgers's testimony will help the jury understand these
expresses confusion as to the objection to the term
"integrated sub-based design bullet" and contends
that Rodgers's terminology has no impact on the validity
of his opinion. Savage asserts that Rodgers's opinion on
the movement of the bullet within the barrel is reliable and
that the tests Putman claims disprove Rodgers's theories
bear no relation to the facts of this case. Finally, Savage
argues Rodgers is qualified to criticize Putman's
expert-not being a metallurgist does not render Rodgers
unqualified, particularly since his criticisms of Dr.
Druschitz are limited to topics in which he has specialized
general, Putman's objections to Rodgers's opinions
and their factual support go to weight, rather than
admissibility. Rodgers opines that several factors
contributed to Putman's accident. Because it is
impossible to know precisely how much movement the 10ML-II
was subjected to or exactly how much gunpowder Putman used,
Rodgers draws conclusions from the information that exists.
Putman is free to point out his concerns as to the viability
of these conclusions on cross examination, but nothing argued
bars Rodgers from testifying as to Putman's use of this
also argues that Rodgers's opinions go to matters within
the jurors' understanding and thus are unhelpful to them,
an argument also made in favor of excluding Dr. Sam Fadala.
ECF No. 55. While the Fourth Circuit draws a "critical
distinction" between expert and nonexpert testimony,
U.S. v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006),
it has also held that "the 'subject matter of Rule
702 testimony need not be arcane or even especially difficult
to comprehend.'" Id. (quoting Kopf v.
Skyrm. 993 F.2d 374, 377 (4th Cir. 1993)).
'"Testimony from an expert is presumed to be helpful
unless it concerns matters widiin the everyday knowledge and
experience of a lay juror.'" SMD Software, Inc.
v. EMOVE, Inc.. 945 F.Supp.2d 628, 635 (E.D. N.C. 2013)
(quoting Kopf. 993 F.2d at 377). "Even then,
the erroneous admission of such testimony is usually
harmless: an astronomer's explanation that the days are
longer in the summertime may not assist die jury, but it is
not likely to cause an erroneous finding of fact."
Kopf. 993 F.2d at 377.
regarding the admission of an expert's opinions do arise
when that expert offers opinions on "the
commonplace" that threaten to replace a jury's
"independent exercise of commonsense." Doe by
Watson v. Russell County School Board. 292 F.Supp.3d
690, 717 (W.D. Va. 2018) (quoting Kopf. 993 F.2d at
377). However, nothing in Rodgers's report threatens to
replace a jury's independent exercise of common sense.
While certainly the jury may take note of the instruction
manual and safety warnings of both the 10ML-II and the
PowerBelt bullet on its own, the safe operation of
muzzleloaders is not a matter of ...