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 Defendant Savage Arms,
Inc.'s ("Savage's") Motion to Preclude
Plaintiffs Expert Dr. Druschitz. ECF No. 64. Savage filed its
motion on January 8, 2019. Plaintiff James R. Putman, Jr.
("Putman") responded on January 22. ECF No. 75.
Savage replied on January 28. ECF No. 83. The court heard
argument on February 1. ECF No. 89. For the reasons stated
below, the court DENIES the 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 Cir. 1999) (quoting Alevromagiros v.
Hechinger Co., 993 F.2d 417, 422 (4th Cir. 1993)).
is calling Dr. Alan Druschit2 ("Dr. Druschitz") to
testify that the choice of steel (416R stainless steel) was
improper and that this caused the 10ML-II's malfunction.
Savage asserts three main reasons to exclude Dr.
Druschitz's testimony: (1) he lacks the qualifications to
offer these opinions; (2) he used unreliable methodology in
forming these opinions; and (3) his opinions will not assist
the trier of fact. Savage argues Dr. Druschitz is unqualified
because he is a metallurgist with a background in casting and
welding for component parts of automobiles but has no
specific experience with firearms. Savage contends that the
complexities of this case require experts hold qualifications
specific to the subject matter. Savage also argues that Dr.
Druschitz's methodology is unreliable based on several
alleged defects with his work, the most serious of which is a
failure to rule out other potential causes of the
muzzleloader's malfunction. Finally, Savage argues that
Dr. Druschitz's opinions will not assist the trier of
fact because they are largely based on his own subjective
beliefs and contentions, relying largely on the preceding
arguments to support this.
responds that Dr. Druschitz is qualified to offer these
opinions because the Fourth Circuit has ruled that an expert
need only have "sufficient" specialized knowledge
to assist jurors. RG Steel Sparrows Point, LLC v. Kinder
Morgan Bulk Terminals, Inc., 609 Fed.Appx. 731, 739 (4th
Cir. 2015). Dr. Druschitz has a bachelor's degree and
doctorate in metallurgical engineering, has researched solid
metal embrittlement of 4140 steel (a type of steel used in
artillery by various manufacturers, including Savage), was a
research engineer at General Motors research laboratories for
fourteen years, and later became the Director of Materials
Research and Development at a car parts manufacturer. ECF No.
68-9, at 2. This experience required he perform failure
analysis and work with alloys and heat treatments for metal
production. Id. He referenced research related to
the specific proprietary alloy at issue here, as well as
Savage's confidential tests of 10ML-II guns. Id.
at 48-49. This is sufficient to allow Dr. Druschitz to assist
the trier of fact. Putman next argues that the objections to
Dr. Druschitz's methodology are based on Savage's
disagreement with his priorities in writing his report.
Putman responds to Savage's critique that Dr. Druschitz
failed to test other potential causes by listing several
factors he tested other than the type of steel used in the
muzzleloader. Putman finally asserts that Savage's
complaints go to weight, rather than admissibility.
Putman points out in his brief, Savage's argument to
exclude Dr. Druschitz bears a marked resemblance to its
argument in Palatka v. Savage Arms, Inc., 535
Fed.Appx. 448 (6th Or. 2013) to exclude Dr. Clark Radcliffe.
Dr. Radcliffe was plaintiffs causation expert and a professor
of mechanical engineering at Michigan State University.
Id. at 454. The district court agreed with Savage
and excluded the expert, but the Sixth Circuit Court of
Appeals reversed. Id. at 453. The district court
"was critical of Dr. Radcliffe's opinion in light of
his admission that he is not a firearms expert and has not
consulted in the design or manufacture of a firearm,"
but the Sixth Circuit found that his skill, education, and
training in mechanical engineering "render[ed] him
competent to offer opinions on a variety of mechanical
topics, and [the court does not] require Dr. Radcliffe to
have a specialized knowledge of firearms to offer opinions
here." Id. at *455. The district court also
pointed to several perceived errors in Dr. Radcliffe's
methodology, including a lack of testing of proposed
alternatives. Id. The Sixth Circuit reviewed these
objections and found they went to weight, rather than
Savage argues here that Dr. Druschitz does not have
specialized expertise in firearms. Dr. Druschitz is a
qualified metallurgist with advanced degrees in metallurgical
engineering and had done specialized research for the
purposes of testifying in this matter. He has already been
qualified as an expert in metallurgical engineering in
federal court. ECF No. 78-1, at 3. Savage's objections to
his lack of specific experience may be considered by the
trier of fact but do not merit exclusion. Similarly,
Savage's objections to Dr. Druschitz's methodology go
to weight, rather than admissibility. While a failure to
consider other potential causes of a plaintiffs injury might
in some circumstances justify exclusion, the Fourth Circuit
has ruled that an expert's opinion should not be barred
simply because the expert failed to rule out every possible
alternative cause. Cooper v. Smith & Nephew.
Inc., 259 F.3d 194, 202 (4th Cir. 2001). Only if the
expert utterly fails to consider alternative causes or fails
to offer a reason why the proffered alternative cause was not
the sole cause should the expert be excluded. Id.
The problems Savage lists in its brief regarding Dr.
Druschitz's methodology may be pursued during cross
examination. They are insufficient to render Dr.
Druschitz's testimony unfit under Rule 702.
reasons stated above, the court DENIES
Savage's Motion to Preclude Plaintiffs ...