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 Sam Fadala, filed on January 8, 2019.
ECF No. 55. Defendant Savage Arms, Inc. ("Savage")
responded on January 21. ECF No. 71. Putman replied on
January 29. ECF No. 85. 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)).
first argues that, though Dr. Sam Fadala is acknowledged as
an expert on black powder muzzleloaders, the smokeless powder
used by the 10ML-II muzzleloader (the weapon that caused
Putman's injuries) is very different. Dr. Fadala's
only disclosed experience with a smokeless powder
muzzleloader is his evaluation of the Savage ML and ML-II
rifles and the articles he wrote on both in national
publications. ECF No. 67-3, at 2. Putman concludes that Dr.
Fadala's experience is not sufficiently tailored to the
needs of this case.
Putman argues that Dr. Fadala's conclusions are based on
speculation disproved by actual testing. Dr. Fadala opines
there was a high possibility the projectile had migrated down
in Putman's weapon, without referencing testing or
stating why he believes this to be true. ECF No. 67-3, at 5.
Meanwhile, Savage's testing with smokeless powder and
Steven Rodgers's (another defense-designated expert)
testing with PowerBelt bullets contradicts Dr. Fadala's
theory. By means of a so-called "gun drop test,"
Rodgers evaluated whether a PowerBelt bullet could migrate
down the barrel of a muzzleloader. Rodgers found that when
muzzleloaders were dropped, the bullets either stayed in
place or completely fell out of the barrel. ECF No. 68-5.
Even if Putman's bullet could have moved part-way down
the barrel as Dr. Fadala opines, Savage conducted tests on
whether a bullet in such a position would have ruptured
Putman's barrel and found it would not have done so. ECF
No. 68-6. Putman asserts further that Dr. Fadala based his
analysis on black powder tests, which are wholly
inapplicable. These tests say nothing about what happened
with Putman's 10ML-II loaded with smokeless powder.
proper qualifications, Putman argues the rest of Dr.
Fadala's opinion consists of irrelevant recitations of
facts within the understanding of the jury. Further, Putman
argues some of Dr. Fadala's opinions are not supported by
the record. For example, Dr. Fadala opines Putman failed to
clean his weapon but cannot explain why this matters. ECF No.
67-3, at 4. He opines that Putman improperly used a ramrod
attachment, but again cannot explain how this contributed to
the malfunction. Id. Based on these arguments,
Putman asks Dr. Fadala's opinions be excluded.
argues that Dr. Fadala is qualified and points to the
"leading authoritative texts on muzzleloading and
safe-handling" authored by Dr. Fadala, some of which
discuss the Savage 10ML-II rifle. Dr. Fadala has previously
performed destructive testing with both black powder and
smokeless powder, written course and training materials for
classes related to the history, performance, and safe use of
muzzleloading firearms, and been retained by muzzleloading
manufacturers as a consultant and independent contractor. Dr.
Fadala has been qualified as an expert witness in
muzzleloading shooting, firearms, and failure analysis. In
one case, he specifically evaluated whether a muzzleloader
failed due to the use of smokeless powder. Ford v.
Traditional Sporting Goods, Inc., Civ No. 05-cv-2086,
2006 WL 3075547, at *1 (W.D. Ark. Oct. 30, 2006). Savage
argues Putman is impermissibly attempting to narrow the scope
of Dr. Fadala's qualifications. Finally, Savage argues
Putman's arguments regarding Dr. Fadala's methodology
are incorrect. Neither test cited refutes Dr. Fadala's
opinions. Savage's internal test used a recommended
bullet, not the bullet Putman used, and Rodgers' gun drop
test was not performed for purposes of this litigation but
was designed to evaluate a new projectile with a sub-base.
Putman argues that Dr. Fadala is more qualified in black
powder than smokeless powder, this observation does not merit
his exclusion. All muzzleloaders except the 10ML-II use black
powder rather than smokeless gunpowder-it would follow that
most people with expertise in muzzleloading weapons know more
about black powder than smokeless. To claim that Dr.
Fadala's familiarity with the type of gunpowder every
other muzzleloading rifle uses prevents him from testifying
as an expert in muzzleloaders is nonsensical. Dr. Fadala has
enough familiarity with smokeless gunpowder for his
experience with muzzleloaders to be applicable. Further, the
problems with Dr. Fadala's tests don't merit
exclusion. Putman argues that Dr. Fadala's theories are
disproved by Savage's and Rodgers's own testing;
Savage presents reasons why the contradictory tests do not
apply to these issues. Given this disagreement, the issue is
best decided by the jury. Putman's arguments as to Dr.
Fadala's allegedly unsupported statements relate to the
positing of alternative theories of causation. These
criticisms go to the weight, and not the admissibility, of
Dr. Fadala's testimony. Putman can elicit testimony
showing these theories are unlikely during cross examination.
Putman argues that much of Dr. Fadala's testimony will be
unhelpful to the jury. 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 Or. 1993)).
Issues 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). The information presented by Dr. Fadala on
muzzleloaders is not within the everyday knowledge of a lay
juror, and nothing in Dr. Fadala's report threatens to
replace a jury's independent exercise of common sense.
reasons stated above, Putman's Motion to Exclude Opinion
Testimony of Sam ...