Lyons v. Saeilo Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

DONALD LYONS and JILLIAN §

LYONS, §

§

Plaintiffs, §

§ Case No. 5:21-cv-00043-LCB

v. §

§

SAEILO, INC., d/b/a KAHR §

ARMS, §

§

Defendant. §

OPINION & ORDER

Plaintiffs Donald and Jillian Lyons bring this product liability action against

Defendant Saeilo, Inc., which does business as Kahr Arms. Plaintiffs allege that

Mr. Lyons’s 9mm Kahr CW9 semi-automatic pistol discharged when it fell from

his holster and hit their garage floor, severely injuring him. Plaintiffs bring claims

for negligence or wantonness, violation of the Alabama Extended Manufacturers’

Liability Doctrine (“the AEMLD”), breach of implied warranty of merchantability,

and loss of consortium. (Doc. 1 at 8−14.)

Before the Court are two motions: Kahr’s motion to exclude the expert

testimony of Plaintiffs’ liability expert, Charles Powell, and Kahr’s motion for

summary judgment under Federal Rule of Civil Procedure 56. (Docs. 51 and 53.)

For the reasons given below, the Court finds that part of Mr. Powell’s testimony is

admissible under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), but

even with that testimony, Plaintiffs cannot preclude a finding of summary

judgment in favor of Kahr. Thus, Kahr’s motion to exclude is GRANTED IN

PART and DENIED IN PART, and Kahr’s motion for summary judgment is

GRANTED.

I. BACKGROUND

Plaintiffs base their claims for relief—and Kahr, its motions—on the

following facts.

A. The Mechanics of Kahr’s CW9 Semi-Automatic Pistol

Kahr designs, manufactures, markets, and sells firearms. (Doc. 1 at 4.) One

of Kahr’s firearms is the 9mm CW9 semi-automatic pistol. (Doc. 1 at 4.) The CW9

pistol is striker-fired. (Doc. 59 at 7.) In a striker-fired pistol, a spring-loaded rod,

called a striker, replaces the hammer and firing pin that operate in a traditional

pistol. (Doc. 59 at 7.) To load the CW9 pistol, a magazine with at least one round

(i.e., a bullet) must be inserted into the pistol’s magazine well. (Doc. 54 at 8.) Then

the slide (i.e., the top part of the pistol that moves) must be manually pulled back.

(Doc. 54 at 8.) As the slide gets released forward, it loads a round in the chamber.

(Doc. 54 at 8.) At that point, the pistol is cocked, or ready to fire. When the trigger

is pulled and the pistol discharges or fires, the slide springs rearward and then

forward, chambering another round—this action is what makes the pistol semi-

automatic. (Doc. 58-5 at 5.)

As part of Kahr’s design for the CW9 pistol, the trigger connects to a trigger

bar. (Doc. 58-5 at 5.) At the other end of the trigger bar is a disconnector tab. (Doc.

58-5 at 5.) Unlike the trigger, both the trigger bar and the disconnector tab are

internal components. (Doc. 58-5 at 5.) The disconnector tab connects to the

cocking cam system,1 and it also interacts with the slide. (Doc. 58-5 at 5.) As the

slide moves rearward or forward,2 it pushes the disconnector tab downward, so the

trigger bar gets disconnected from the cocking cam system. (Doc. 58-5 at 5.) Said

differently, when the slide is out of battery, the pistol cannot discharge. (Doc. 58-5

at 5.) When the slide is in battery, or in its fully forward position, the trigger bar is

connected to the cocking cam system. (Doc. 58-5 at 5.) This disconnector tab

design is common in striker-fired pistols. (Doc. 58-5 at 5.)

When a striker-fired pistol is cocked, the striker is pulled back against spring

pressure and held by a fire control mechanism component. (Doc. 59 at 7.) The

CW9 pistol uses a cocking cam system to control and release the striker. (Doc. 51

at 2 and Doc. 58-5 at 4.) One cam, often referred to as the sear, is the component

that holds the striker when the pistol is cocked. (Doc. 58-5 at 4.) Stated previously,

the disconnector tab on the trigger bar connects the trigger to the cocking cam

1 This system is described in the next paragraph.

2 Another term for this action or movement is “out of battery.” (Doc. 58-5 at 5.)

system. (Doc. 51 at 2.) As the trigger gets pulled rearward, the trigger bar shifts

forward, and the cocking cam system rotates, causing the sear to pull the striker

back even further. (Doc. 60 at 2.) When the system fully rotates, the sear releases

the striker, which springs forward and hits the bullet cartridge’s primer, projecting

the cartridge out of the pistol. (Doc. 60 at 2.)

One of the internal safety mechanisms in the CW9 pistol is the striker block.

(Doc. 51 at 2.) The striker block “keeps the firing pin [which is part of the striker]

from contacting the primer of the cartridge.” (Doc. 51 at 2.) During a trigger pull,

the second cam in the cocking cam system pushes the striker block out of the way

so that when the striker gets released by the sear, the firing pin can hit the primer.

(Doc. 51 at 2 and Doc. 58−5 at 4.)

Similar to other striker-fired semi-automatic pistols, such as the Glock G17,

the CW9 pistol does not have an external manual safety mechanism, such as a

conventional safety (i.e., an on/off switch). (Doc. 58-5 at 4.) It also does not have a

trigger safety, which is a small tab on the trigger that must be fully decompressed

or “pushed in” before the trigger can be pulled. (Doc. 58-5 at 3.) A trigger safety is

found on some semi-automatic pistols but not all. (Doc. 51 at 4.)

B. The Incident on July 2, 2019

On January 12, 2010, Kahr sold a CW9 semi-automatic pistol, serial number

EE4752, (“the Subject Pistol”) to Larry’s Pistol and Pawn Shop. (Doc. 54 at 5.)3

An individual purchased the Subject Pistol later that year. (Doc. 54 at 5.) Roughly

ten years later, Plaintiffs purchased the Subject Pistol at an auction. (Doc. 54 at 5.)

The maintenance history and the conditions of the Subject Pistol from late 2010 to

the time of Plaintiffs’ purchase are unknown. (Doc. 54 at 5.)

After purchasing the Subject Pistol, Mr. Lyons disassembled it, cleaned it,

and completed a functions check. (Doc. 54 at 7.) Mr. Lyons also bought a leather

holster for the Subject Pistol, which did not have a retention strap. (Doc. 54 at 8.)

He would carry the Subject Pistol in the holster around his property with one round

in the chamber and a full magazine inserted in the magazine well. (Doc. 54 at 8.)

Before the incident at issue, Mr. Lyons used the Subject Pistol on two

separate occasions: once at a range where he shot multiple rounds, and the week

before the incident where he discharged it several times on his property, both at a

target and at rats. (Doc. 54 at 7.) Mr. Lyons testified in his deposition that on both

occasions, the Subject Pistol functioned properly. (Doc. 54 at 7.)

On July 2, 2019, Mr. Lyons returned home from work and began mowing

the lawn with the holster and the Subject Pistol affixed to the belt on the Scottish

3 Though many of the facts in this section are cited from Kahr’s motion for summary judgment,

Plaintiffs deemed such facts “admitted” in their brief opposing Kahr’s motion. (Doc. 59 at 3−6.)

kilt he was wearing. (Doc. 54 at 9.) Two hours later, Mrs. Lyons told him there

was a snake trying to enter the house through the garage, so he went and tried to

catch the snake by the tail. (Doc. 54 at 9.) As Mr. Lyons leaned down to pick up

the snake, the Subject Pistol fell out of the holster, struck the concrete floor, and

discharged. (Doc. 1 at 7.) There is no evidence that Mr. Lyons bumped into

anything when he leaned down. (Doc. 53 at 10.) A bullet struck Mr. Lyons in the

“upper right leg, traveled through his abdomen, passed through his colon, nicked

his bladder, struck his iliac vein, and penetrated his left pelvic bone” before

stopping near the skin of his left buttocks. (Doc. 1 at 7.) Mr. Lyons’s injuries

resulted in multiple surgeries and extensive medical treatment and rehabilitation.

(Doc. 1 at 7.)

C. Experts’ Testing and Examination of the Subject Pistol

On January 12, 2021, Plaintiffs filed their Complaint against Kahr in this

Court. (Doc. 1.) During discovery, on October 28, 2020, Plaintiffs’ expert, Charles

Powell, and Kahr’s expert, Derek Watkins, examined the Subject Pistol together.

(Doc. 54 at 10.) That day was the only time the Subject Pistol was examined or

tested by either expert. (Doc. 51-10 at 13.)

During their inspection, Mr. Powell and Mr. Watkins noticed some scratches

on the slide’s rear, damage to the front sight, and at least some damage to the

disconnector tab. (Doc. 51-7 at 7−8 and Doc. 58-5 at 18−24.) Mr. Powell later

claimed he saw corresponding microscopic scratches on the slide’s inner surface,

which Mr. Watkins did not see. (Doc. 51-7 at 7−8 and Doc. 51-10 at 11−12.) Both

Mr. Powell and Mr. Watkins tested the Subject Pistol’s functionality, which

included testing specific components and disassembling and reassembling the

firearm, and they found that everything functioned properly. (Doc. 54 at 10.)

In order to complete his analysis, Mr. Powell purchased his own Kahr CW9

pistol (“the Exemplar”) to run some tests. (Doc. 51-10 at 12.) Mr. Powell is a

registered engineer who for the past forty years has “engaged in the business of

engineering failure analysis of products and structures and accident investigation.”

(Doc. 58-5 at 2.) In November 2021, Mr. Powell completed ten drop tests with the

Exemplar onto concrete using a drop box. (Doc. 51-10 at 12, 40.) The first drop

test was conducted from 48 inches, and the next nine were conducted from 60

inches. (Doc. 54 at 12.) During those ten tests, the Exemplar never discharged on

impact with the concrete. (Doc. 54 at 11−12.)

That same month, Mr. Powell began experimenting with the Exemplar by

placing small pieces of brass or polymer in the cavity where the disconnector tab

sits, and he would manipulate the pieces until they held the tab and trigger bar

forward, causing a partial trigger pull. (Doc. 54 at 12−13.) He analyzed the

Exemplar in that condition using his TriggerScan system. (Doc. 51-10 at 20.)

Shortly thereafter, Mr. Powell completed his expert report for this lawsuit where he

wrote that the CW9 pistol is defectively designed and should have a trigger safety.

(Doc. 58-5 at 1, 4−5.) Roughly two months later, he conducted one drop test from

60 inches with the Exemplar’s trigger partially pulled, and the firearm discharged

on impact. (Doc. 58 at 13.)

Kahr completed its own testing during discovery. Kahr completed fourteen

drop tests with its exemplar CW9 pistol, including six drops onto concrete. (Doc.

51-7 at 3.) The drops onto concrete were from a height of 39 inches. (Doc. 51-7 at

4.) None of Kahr’s drop tests resulted in a discharge (i.e., a drop-fire). (Doc. 51-7

at 9.) Mr. Watkins, also an engineer, then completed his expert report where he

concluded that the CW9 pistol does not have any design defects and does not drop

fire. (Doc. 51-7 at 2, 16.)

II. LEGAL STANDARDS

A. Motion to Exclude Expert Testimony

Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

methods; and

(d) the expert has reliably applied the principles and methods

to the facts of the case.

The Supreme Court in Daubert held that Rule 702 requires that the district court

serve as the “gatekeeper” of evidence and determine “whether the expert is

proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to

understand or determine a fact in issue.” Daubert, 509 U.S. at 592. All scientific

testimony or evidence admitted must be both relevant and reliable. See id. at 589–

92. The court “must make a preliminary assessment of whether the testimony’s

underlying reasoning or methodology is scientifically valid and properly can be

applied to the facts at issue.” Id. at 592−93.

To determine whether an expert’s testimony is admissible under Rule 702

and Daubert, the Eleventh Circuit established a three-part test:

1. The expert is qualified to testify competently regarding the matters he

intends to address;

2. The methodology by which the expert reaches his conclusions is

sufficiently reliable as determined by the sort of inquiry mandated in

Daubert; and

3. The testimony assists the trier of fact, through the application of

scientific, technical, or specialized expertise, to understand or to

determine a fact in issue.

E.g., Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010). The proponent

of the expert’s testimony bears the burden of proving, by a preponderance of

evidence, that the testimony satisfies the three-part test. McClain v. Metabolife

Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005).

The district court’s “‘role as gatekeeper is not intended to serve as a

replacement for the adversary system.’” Fed. R. Evid. 702 advisory committee’s

notes to 2000 amendment (citing United States v. 14.38 Acres of Land Situated in

Leflore Cnty., Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996)). In conducting a

Daubert analysis, the district court cannot evaluate the credibility of an expert, nor

can it “make ultimate conclusions as to the persuasiveness of the proffered

evidence.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois U.K. Ltd., 326 F.3d 1333, 1341

(11th Cir. 2003) (internal citations omitted). Thus, “courts must remain chary not

to improperly use the admissibility criteria to supplant a plaintiff’s right to a jury

trial: ‘[v]igorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.’” Moore v. Intuitive Surgical, Inc., 995

F.3d 839, 850 (11th Cir. 2021) (quoting Daubert, 509 U.S. at 596).

B. Motion for Summary Judgment

Summary judgments are “an integral part of the Federal Rules [of Civil

Procedure] as a whole, which are designed to secure the just, speedy and

inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S.

317, 327 (1986). To obtain summary judgment, the movant must demonstrate that

all material facts are undisputed and entitle him to a judgment on the merits.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). That burden requires

the movant to point out portions of the record or pleadings that justify summary

judgment. Fed. R. Civ. P. 56(a).

“[B]ut the plaintiff is not thereby relieved of his own burden of producing in

turn evidence that would support a jury verdict.” Anderson, 477 U.S. at 256. “A

party opposing a properly supported motion for summary judgment may not rest

upon the mere allegations or denials of her pleading”; he “must set forth specific

facts showing that there is a genuine issue [of material fact] for trial.” Id. at 248

(citation omitted) (cleaned up); accord Fed. R. Civ. P. 56(e). An issue is genuine

“if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. “A mere ‘scintilla’ of evidence

supporting the [nonmoving] party’s position will not suffice; there must be enough

of a showing that the jury could reasonably find for that party.” Walker v. Darby,

911 F.2d 1573, 1577 (11th Cir. 1990) (citations omitted). To that end, evidence

that “is merely colorable” or otherwise “is not significantly probative” cannot

preclude summary judgment. Anderson, 477 U.S. at 249 (citations omitted).

Applicable substantive law distinguishes the material from the immaterial.

Id. And there can be “no genuine issue as to any material fact” where the

nonmovant is unable, after adequate discovery, to “make a showing sufficient to

establish the existence of an element essential to [its] case” under the applicable

substantive law. Brown v. Crawford, 906 F.2d 667, 669 (11th Cir. 1990) (citations

omitted). Dispensing with just one legal element of the non-movant’s claim

“necessarily renders all other facts immaterial,” in which case “the plain language

of Rule 56(c) mandates the entry of summary judgment.” Celotex, 477 U.S. at 322.

The district court’s inquiry turns upon “whether the evidence presents a

sufficient disagreement to require submission to the jury or whether it is so one-

sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–

52. In engaging with that inquiry, the court is “required to view the evidence and

all factual inferences therefrom in the light most favorable to [the nonmovant] and

to resolve all reasonable doubts about the facts in her favor.” Patterson v. Ga. Pac.,

LLC, 38 F.4th 1336, 1341 (11th Cir. 2022) (citation omitted). Should “conflicts

arise between the facts evidenced by the parties,” the court “must credit the

nonmoving party’s version.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir.

2005) (en banc) (citation omitted).

III. DISCUSSION

A. Mr. Powell’s expert testimony is admissible, in part, under

Daubert and Federal Rule of Evidence 702.

Mr. Powell, Plaintiffs’ expert, is prepared to testify that Kahr’s CW9 semi-

automatic pistol is defectively designed and that its defects caused the Subject

Pistol to drop fire and injure Mr. Lyons. (Doc. 60 at 2.)

Mr. Powell’s opinion rests on his evaluations and tests of both the Subject

Pistol and the Exemplar. (Doc. 58-5 at 6.) With the Subject Pistol, he examined it

with his own eyes and under a microscope, he took pictures and measurements of

it, and he conducted function tests with it, which included disassembling and

reassembling the firearm and testing individual components. (Doc. 54 at 10 and

Doc. 58-5 at 6.) During his time with the Subject Pistol, Mr. Powell made several

observations. He noticed that the disconnector tab was damaged, and he saw

microscopic scratches on the inner surface of the slide where it had contact with

the disconnector tab. (51-10 at 11−12.) Mr. Powell then arrived at two conclusions:

one, that the damage he saw suggested that there had been contact with some type

of debris or foreign material because he had “[n]ever seen a disconnector tab look

like that before,” and, two, that the level of contact between the slide and

disconnector tab was unusual and not the result of “normal use.” (Doc. 51-10 at 12,

14, and 36−37.) Additionally, while observing the Subject Pistol under the

microscope, when Mr. Powell pulled the slide rearward and then released it, he

saw the slide drag the disconnector tab forward slightly, though the trigger did

return to the full position. (Doc. 51-10 at 13, 16, 27.)

Mr. Powell then conducted drop tests with the Exemplar onto concrete using

a drop box. (Doc. 51-10 at 12, 40.) While watching a video of one of the first drop

tests, he noticed the Exemplar’s trigger move rearward. (Doc. 51-10 at 40.)

Following that observation, he “measured the position of the striker block safety

and what height it would take to release it and then mark[ed] that on the trigger

[guard].” (Doc. 51-10 at 40.) During his observations of subsequent drop tests, he

noticed that the trigger moved to the marked spot on the trigger guard, indicating

that the striker block had been displaced. (Doc. 58-5 at 31−32.) Mr. Powell

conducted eleven drop tests total. (Doc. 60 at 13.) The first drop test was

conducted from 48 inches, and the rest were conducted from 60 inches. (Doc. 54 at

12.) During the first ten tests, the Exemplar never discharged on impact. (Doc. 54

at 11−12.)

Circling back to his conclusion that a piece of debris or foreign material had

damaged the Subject Pistol, for the eleventh test with the Exemplar, Mr. Powell

wanted to “exhibit” the kinds of damage he saw on the Subject Pistol. (Doc. 51-10

at 14, 55, 58.) He proceeded to place brass and polymer particles in the Exemplar’s

cavity where the disconnector tab was in order to block the tab forward and create

a partial trigger pull.4 (Doc. 54 at 12−13.) After analyzing the Exemplar in that

condition with his TriggerScan system, he realized the firearm would drop fire; he

later conducted one drop test, and the Exemplar discharged on impact. (Doc. 58 at

13, 20.)

4 Mr. Powell described the “partial trigger pull” as “[p]retty close to discharge.” (Doc. 51-10 at

55, 58.)

Following his findings, Mr. Powell reported that the CW9 pistol has two

design defects: (1) when the CW9 pistol gets dropped, inertial energy causes the

trigger to move and the striker block to move out of the way, “meaning the gun

could . . . fire[]” (“the First Theory”); and (2) the lack of protection of the

disconnector tab wherein the slide or debris in that cavity can move the tab

forward, causing a partial trigger pull (“the Second Theory”). (Doc. 59 at 12 and

Doc. 58-5 at 5) (emphasis omitted). The Second Theory breaks down into two

causation hypotheses as to how the Subject Pistol could have discharged when it

fell from Mr. Lyons’s holster and hit the concrete: (a) there was debris or foreign

material within the cavity where the disconnector tab sits that held the tab and

trigger bar forward and caused a partial trigger pull; or (b) due to the damage on

the disconnector tab caused by debris or foreign material, there was enough contact

between the tab and the slide to hold the tab and trigger bar forward, causing a

partial trigger pull. (Doc. 51-10 at 14, 28.) Mr. Powell opined that had Kahr

designed the CW9 pistol with a trigger safety, the two defects would have been

cured, and Mr. Lyons’s injury would have been prevented. (Doc. 58-5 at 5.)

Kahr now moves to exclude Mr. Powell’s testimony, claiming that he

“improperly worked backwards from the assumption that [the Subject Pistol] did,

in fact drop fire, failing to account for any other reasonable alternative for the

discharge.” (Doc. 51 at 2.) Plaintiffs maintain that Mr. Powell’s opinion satisfies

the Eleventh Circuit’s test for admissibility under Daubert and Rule 702, and they

deny Kahr’s characterization of his opinion. (Doc. 60 at 1.)

1. Qualification

Kahr does not debate that Powell is “qualified to testify competently”

regarding design defects in the CW9 pistol. Nevertheless, Plaintiffs point out that

Mr. Powell is a metallurgical engineer who has, for the past forty years, worked in

the business of failure analysis of products. (Doc. 60 at 8.) Plaintiffs also

emphasize Mr. Powell’s significant experience in the design and failure of “firearm

control and safety systems.” (Doc. 58-5 at 2–3 and Doc. 60 at 9.) Experience may

provide a sufficient foundation for expert testimony. Fed. R. Evid. 702 advisory

committee’s notes to 2000 amendment. Because the Court finds that Plaintiffs have

sufficiently established that Mr. Powell’s experience qualifies him to testify

competently, the first part of the Eleventh Circuit’s test has been satisfied.

2. Methodology

Kahr’s overarching argument is that Powell’s methodology is unreliable

because he failed to rule out alternative causes of the incident (i.e., a trigger pull),

he ignored pertinent facts, and his testing lacks scientific methodology. (Doc. 51 at

17−20.)

Plaintiffs oppose Kahr’s arguments, claiming Mr. Powell did rule out the

alternative that Mr. Lyons pulled the Subject Pistol’s trigger and that his drop tests

were reliable because they were systematic and conducted in accordance with a

military standard used by Kahr itself. (Doc. 60 at 11−13.)

The Supreme Court and the Federal Rules of Evidence Advisory Committee

Notes have set forth a variety of factors courts may consider when determining if

an expert’s methodology is scientifically reliable. A handful of those factors are:

“whether the expert’s methodology has been tested or is capable of being tested; . .

. whether the technique has been generally accepted in the proper scientific

community;” McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (citing

Daubert, 509 509 U.S. at 593−94); and “[w]hether the expert has adequately

accounted for obvious alternative explanations.” Fed. R. Evid. 702 advisory

committee’s notes to 2000 amendment.

That said, the Supreme Court has emphasized that an inquiry under Rule 702

is a “flexible one” and that the factors listed do not “do not constitute a definitive

checklist or test.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999)

(internal citation omitted). The “factors . . . may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the expert’s particular

expertise, and the subject of his testimony.” Id. (internal citation omitted). Thus, a

court’s assessment of the reliability of a methodology largely “depends upon the

particular circumstances of the particular case at issue.” Id. The focus of a Daubert

inquiry is on the “principles and methodology underlying expert opinion

testimony, not the conclusions they generate.” McDowell, 392 F.3d at 1298 (citing

Daubert, 509 U.S. at 595).

As a preliminary matter, the Court finds it logical to first analyze Mr.

Powell’s opinion that the Subject Pistol drop fired and his general methodology

before addressing his specific methodologies that support the First and Second

Theories.

a. Alternative Cause

The Court disagrees with Kahr that Mr. Powell failed to rule out alternative

causes of the incident. There are only two ways that the Subject Pistol could have

discharged on July 2, 2019: a drop-fire, the Plaintiffs’ position, or a manual trigger

pull, Kahr’s position. During Mr. Powell’s deposition, he testified that he evaluated

whether the Subject Pistol “fired as a result of a manual trigger pull or if it fired

without a manual trigger pull,” and in this case, he ruled out a manual trigger pull.

(Doc. 51-10 at 10.) To reach that conclusion, he reviewed the evidence available to

him, including Mr. Lyons’s deposition, the Sheriff’s Report, and the Subject Pistol

itself. (Doc. 60 at 11). Mr. Lyons described the incident during his deposition,

stating that he heard the shot as he reached down, that the firearm did not hit

anything as the area was empty, and that he saw a flash to the floor on his right.

(Doc. 51-4 at 23–25.) The Sheriff’s Report reiterated Mr. Lyons’s story and stated

that the hospital confirmed both that Mr. Lyons was hit in the right thigh and that

the bullet traveled at an upward angle. (Doc. 51-19 at 3.) From that, Mr. Powell

reasoned that Mr. Lyons’s wound path, low to high, “indicat[ed] a muzzle up drop

onto the rear top corner of the slide.” (Doc. 58-5 at 5.) On the Subject Pistol, Mr.

Powell found “impact damage” on the top righthand corner of the slide. (Doc. 58-5

at 5.) The damage he saw was “typical of the kinds of impact marks [he] see[s] on

pistols that drop fire,” and he claimed he saw the “imprint of the concrete

particles” within the groves under the microscope. (Doc. 51-10 at 69−70.) He also

thought that the striker block “exhibited an impact mark,” which signaled to him

that the Subject Pistol’s striker had released previously, sans trigger pull. (Doc. 58-

5 at 5.) Based on Powell’s review of those materials, he concluded that Mr.

Lyons’s injury was the result of a “dropped pistol discharge” and not a manual

trigger pull. (Doc. 58–5 at 1.)

Kahr claims that the materials Mr. Powell relied on to rule out a manual

trigger pull, specifically Mr. Lyons’s deposition and the Sheriff’s Report, are not

based on scientific analysis. (Doc. 62 at 7−8.) Kahr also points out that Mr. Powell

did not attempt any independent trajectory analysis. (Doc. 51 at 13.) While Kahr’s

arguments may have merit, Mr. Powell did rely on Mr. Lyons’s wound path and

what he observed in the Subject Pistol, which, based on his expertise, suggested a

drop-fire. Moreover, Kahr’s points would be the proper subject of cross-

examination and should not affect the admissibility of Mr. Powell’s testimony.

Thus, the Court finds that it was appropriate for Mr. Powell to rely on the evidence

as provided to him as well as his own observations in eliminating a manual trigger

pull as an alternate cause of the Subject Pistol’s discharge.

b. Drop Tests with the Exemplar

It is a “generally accepted” technique in the firearms industry to conduct

drop tests in order to determine whether a firearm can discharge upon being

dropped, and Kahr, which conducted its own drop tests, does not take issue with

the fact that Mr. Powell did so as well.5 Additionally, Mr. Powell conducted

multiple iterations of the drop tests, and he adequately explained his step-by-step

process, so his tests could be repeated, if necessary. (Doc. 51-10.) Those facts

indicate that Mr. Powell’s general methodology was scientifically reliable.

Kahr argues that the heights Mr. Powell used during the drop tests—48 and

60 inches—are beyond the industry’s standards and beyond the height the Subject

Pistol fell,6 rendering his methodology unreliable. But the Court disagrees. The

evidence in the record suggests that it is well known throughout the firearms

industry that there are different drop-test protocols.7 (Doc. 54 at 6 and Doc. 58-2 at

5 In light of that information, the Court deems it unnecessary to give more detail on Mr. Powell’s

step-by-step process for his drop tests.

6 The test heights that Mr. Powell used are undisputedly higher than the distance the Subject

Pistol fell from Mr. Lyons’s waist because Mr. Lyons is roughly 71 inches tall (i.e., 5’9”). (Doc.

54 at 9.)

7 These include protocols promulgated by the Sporting Arms and Ammunition Manufacturers’

Institute, the California Department of Justice, the State of Massachusetts, and the Department of

Defense. (Doc. 54 at 6 and Doc. 58-5 at 4.)

24.) In Mr. Powell’s report, he wrote that the drop-test height of 60 inches, which

was used for ten of his drop tests, was in accordance with the Military Standard

810 and Test Operations Procedure 3-2-045. (Doc. 58-5 at 4.) Kook Jin Justin

Moon, Kahr’s corporate representative, testified in his deposition that Kahr’s

firearms had been tested using that very standard. (Doc. 58-2 at 24.) Moreover, Mr.

Powell conducted the drop tests to analyze whether the CW9 pistol had a design

defect that could cause a drop-fire. Regardless of how far the Subject Pistol fell, it

is conceivable that someone could drop a CW9 pistol from shoulder height, so data

collected from drop tests at 48 and 60 inches would be relevant to Mr. Powell’s

analysis. Therefore, the Court finds that Mr. Powell’s use of those heights for his

tests does not render his methodology scientifically unreliable.

c. The First Theory—Methodology

The Court now turns to the methodology underlying the First Theory. While

watching a video of one of the drop tests, Mr. Powell saw the Exemplar’s trigger

move rearward. (Doc. 51-10 at 40.) Following that observation, he “measured the

position of the striker block safety and what height it would take to release it and

then mark[ed] that on the trigger [guard].” (Doc. 51-10 at 40.) On subsequent

video recordings of drop tests, he found that the trigger moved to the marked spot

on the trigger guard, indicating that the striker block was displaced. (Doc. 51-10 at

40.) Mr. Powell, in his deposition, gave a detailed description of how he tested the

First Theory, and he verified his finding on multiple drop tests. (Doc. 51-10 at 30.)

The Court finds that Mr. Powell’s methodology was methodical and that his

process is testable. The Court also acknowledges that Kahr does not contest this

specific methodology. As such, the methodology behind the First Theory is

scientifically reliable.

d. The Second Theory—Methodology

Lastly, the Court pivots to the methodology behind Mr. Powell’s Second

Theory, which is the primary focus of Kahr’s motion. It is worth noting that

Plaintiffs glossed over the Second Theory in their brief. They state that Mr.

Powell’s experimentation was his attempt to “replicate the damage” in the Subject

Pistol, but they do not advance an argument as to why his methodology is

scientifically reliable. (Doc. 60 at 14.) That aside, because Plaintiffs and Mr.

Powell brought up the Second Theory at the Court’s hearing, and thus have not

abandoned it, the Court will analyze it under Daubert.

The crux of Kahr’s argument is that Mr. Powell assumed that the Subject

Pistol drop fired and then “worked backwards” to find a theory that would make it

possible. (Doc. 51 at 2.) Kahr claims that Mr. Powell manipulated the Exemplar by

intentionally creating a partial trigger pull by inserting particles of brass and

polymer into the firearm, which he only did because he “realized he could not get

the [Exemplar] to drop fire.” (Doc. 51 at 18.)

But the Court cannot say, as Kahr does, that Mr. Powell’s actions here had

“no connection to the facts of the case.” (Doc. 51 at 19.) Mr. Powell did state that

he observed damage to the Subject Pistol’s disconnector tab and scratches to the

slide’s inner surface, which he concluded was highly unusual and thus not the

result of wear and tear but interaction with debris or foreign material. (Doc. 51-10

at 12, 14, 36−37.) He also claimed that he saw the slide in the Subject Pistol drag

the disconnector tab forward slightly and that he manipulated the Exemplar’s

trigger to replicate what he saw in the Subject Pistol. (Doc. 51-10 at 55, 58.) From

Mr. Powell’s TriggerScan analysis of the Exemplar in that condition, he could tell

the pistol would drop fire, and his conclusion was validated when he conducted the

eleventh drop test and the pistol discharged on impact. (Doc. 58 at 13, 20.) Based

on that information, there is at least a traceable, though tenuous, connection

between Mr. Powell’s observations of the Subject Pistol, his data, and the Second

Theory.

While no evidence suggests that Mr. Powell’s manipulation of the

Exemplar’s trigger is a “generally accepted” technique in the firearms industry, in

his deposition, Mr. Powell testified how, exactly, he applied the technique, enough

so that it could be replicated, and he mentioned that he had used that technique to

manipulate the trigger in other firearms. (Doc. 51-10 at 51−56, 64.) It is an

established principle in any field of science that hypotheses should be tested,

which, based on Mr. Powell’s testimony, is what he did. (Doc. 51-10 at 55.) To

find that Mr. Powell “worked backwards” to make the CW9 pistol drop fire would

require the Court to assess Mr. Powell’s credibility, which it cannot do under a

Daubert analysis. The Court admits that the underlying “facts” Mr. Powell relies

on to support his methodology and the Second Theory—the damage to the

disconnector tab, the scratches on the slide, and the slight dragging of the

disconnector tab by the slide—are shaky, at best, and are borderline “sufficient.”

Fed. R. Evid. 702. However, given that the Court should not “serve as a

replacement for the adversary system,” it will err on the side of admissibility. Fed.

R. Evid. 702 advisory committee’s notes to 2000 amendment (citing 14.38 Acres of

Lan, 80 F.3d at 1078). Thus, under these “particular circumstances,” and given Mr.

Powell’s expertise in analyzing firearm design failures, the Court adopts a

“flexible” interpretation of scientific reliability and finds that Mr. Powell’s

“underlying reasoning and methodology” for the Second Theory meet that

standard. Kumho, 526 U.S. at 150.

Overall, the second part of the Eleventh Circuit’s test has been satisfied.

3. Assistance to the Trier of Fact

Kahr claims that Mr. Powell’s testimony does not assist a trier of fact

because his own testimony states that the First Theory had no causal effect on Mr.

Lyons’s injury. (Doc. 62 at 5−6.)

The third part of the Eleventh’s Circuit test ‘“goes primarily to relevance.’”

Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 989 (11th Cir. 2016) (citing

Daubert, 509 U.S. at 591). “The ‘basic standard of relevance . . . is a liberal one,’

but if an expert opinion does not have a ‘valid scientific connection to the pertinent

inquiry’ it should be excluded because there is no ‘fit.’” Boca Raton Cmty. Hosp.,

Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir.2009) (quoting

Daubert, 509 U.S. at 587, 591–92).

It is undisputed that causation is an essential element of Plaintiffs’

negligence and AEMLD claims. Rodgers v. AWB Indus., Inc., 762 Fed. Appx.

1015, 1021 (11th Cir. 2019); see also Morguson v. 3M Co., 857 So.2d 796, 800

(Ala. 2003). Moreover, in products liability cases, it is generally required that

experts testify on causation due to the often complex and general nature of the

products. See Verchot v. Gen. Motors Corp., 812 So.2d 296, 303 (Ala. 2001).

Because under the First Theory, Plaintiffs’ evidence shows that the First

Theory was not the cause of Mr. Lyons’s injury, the Theory is irrelevant to the

underlying dispute. If the CW9 pistol is dropped, regardless of whether inertial

energy causes the trigger to move and the striker block to displace, it is undisputed

that such phenomenon does not cause a drop-fire because the sear will not release

the striker, even upon impact with concrete. (Doc. 51-10 at 30.) During his

deposition, Mr. Powell testified repeatedly that even if the striker block is

displaced because of trigger movement during a drop, for the CW9 pistol to

discharge on impact, the trigger must have already been partially pulled (i.e., the

Second Theory must be in effect).8 (Doc. 51-10 at 30, 47−49.) Not even Mr.

Powell’s report claims that the First Theory caused Mr. Lyons’s incident. (Doc. 58-

5.)

In that same vein, Mr. Powell also repeatedly testified that the First Theory

had no causal effect on the incident with Mr. Lyons because the CW9 pistol’s

striker does not release on impact during a drop, absent a partial trigger pull. (Doc.

51-10 at 47−48.) Furthermore, Mr. Powell testified that because it is his position

that the Subject Pistol’s trigger was partially pulled before it fell from Mr. Lyons’s

holster, the trigger would have fully decompressed when the Subject Pistol hit the

concrete floor—an action which would have displaced the striker block anyway.9

(Doc. 51-10 at 49.) That testimony aligns with Mr. Powell’s report, as well. He

concluded that the Subject Pistol discharged on impact with the concrete because

the striker block safety was out of the way and the sear released the striker, which

the evidence shows only happens when the trigger is fully decompressed. (Doc.

51-10 at 30 and Doc. 58-5 at 5.)

8 If there is already a partial trigger pull, which means the pistol is close to discharge, then the

inertial energy during a drop will fully decompress the trigger, which will activate the pistol’s

internal mechanisms and discharge the pistol. (Doc. 51-10 at 49.)

9 This is because of the interaction of the trigger, trigger bar, the cocking cam system, and the

striker block. See supra Section I.A.

The Court recognizes that Plaintiffs state that the First Theory demonstrates

that the CW9 pistol “could” fire, but that statement, on its face, still fails to

establish a showing of causation in this action. Moreover, it is arguably misleading

because, again, Mr. Powell’s first ten drop tests and his testimony prove that the

sear does not release the striker when the pistol drops and hits the ground. (Doc.

51-10 at 30, 47−49 and Doc. 59 at 12.) Additionally, Mr. Powell admitted that

during his drop tests, the cartridge’s primer remained “pristine.” (Doc. 51-10 at

43.) In other words, even though the striker block may have been displaced during

his drop tests, the firing pin never contacted the primer—which is the safety

block’s purpose—because the sear never released the striker. (Doc. 51-10 at

43−44.)

While Mr. Powell’s First Theory is unhelpful to a trier of fact because it

does not establish causation, the Second Theory is helpful as it offers two

causation hypotheses. Because causation of Mr. Lyons’s injury (i.e., whether his

injury was caused by a drop-fire) is a “pertinent inquiry” in this action, the Second

Theory passes the third part of the Eleventh Circuit’s test. Daubert, 509 U.S. at

592.

In sum, under the Eleventh Circuit’s test for expert testimony admissibility

under Daubert and Rule 702, Mr. Powell’s testimony surrounding the First Theory

is inadmissible, but the rest of his testimony is admissible. That said, the Court

reiterates that the Daubert analysis focuses on the “principles and methodology

underlying expert opinion testimony, not the conclusions they generate.”

McDowell, 392 F.3d at 1298 (citing Daubert, 509 U.S. at 595).

B. Kahr is entitled to a judgment on the merits of Plaintiffs’ claims.

Because Mr. Powell’s testimony surrounding the Second Theory survives

Kahr’s motion to exclude, and because Kahr argues in its brief that summary

judgment is warranted even if Mr. Powell’s testimony is permitted, the Court now

turns to Kahr’s motion for summary judgment.

1. Negligence and the AEMLD

Kahr’s theory of the case is that Mr. Lyons likely pulled the trigger. (Doc. 51

at 9 and Doc. 51-7 at 16.) To support their theory, Kahr rests on the facts that the

CW9 pistol has passed various industry and state test protocols10 for drop-fire

scenarios and that no one has demonstrated the pistol can drop fire, absent a

manipulated trigger. (Doc. 54 at 3−4.) Kahr also highlights Mr. Watkins’s

trajectory analysis of the bullet, which it claims is inconsistent with a drop-fire but

“consistent with Mr. Lyons attempting to catch the [Subject Pistol] as it fell and

accidentally pulling the trigger.” (Doc. 51-7 at 9−15.)

10 These include the Sporting Arms and Ammunition Manufacturers’ Institute’s Standards and

the standards mandated by the California Department of Justice and the State of Massachusetts.

(Doc. 54 at 6.)

In its motion for summary judgment, Kahr defends its design of the CW9

pistol, asserting that Plaintiffs cannot establish that the design is defective, “much

less that [the Subject Pistol] was defective” when it left Kahr’s possession in 2010.

(Doc. 54 at 4.) Kahr argues that the design prevents drop-fires and that Plaintiffs’

“only real claim in this case is that the Subject Pistol became unreasonably

dangerous when a piece of foreign material somehow lodged into the slide after

Plaintiffs acquired it causing a near-complete trigger pull.” (Doc. 54 at 21.)

Plaintiffs rebut Kahr’s position, maintaining that the CW9 semi-automatic

pistol has a design defect that caused the Subject Pistol to fire when it fell from Mr.

Lyons’s holster and hit the concrete, ultimately injuring him. (Doc. 59 at 1−2.) To

reiterate, Plaintiffs’ remaining alleged defect in the CW9 pistol, the Second

Theory, is that due to the lack of protection of the disconnector tab, the slide or

debris in that cavity can move the tab forward, causing a partial trigger pull, which

can result in a drop-fire. (Doc. 51-10 at 14 and Doc. 58-5 at 5.) They contend that

had Kahr designed the CW9 pistol with a trigger safety, that defect would be cured

because it would prevent trigger movement in the event of a dropped pistol. (58-5

at 5.)

a. The Law

To establish a claim of liability under Alabama’s negligence doctrine, a

plaintiff must prove: “(1) a duty to a foreseeable plaintiff; (2) a breach of that duty;

(3) proximate causation; and (4) damage or injury.” DISA Indus. v. Bell, 272 So.3d

142, 152 (Ala. 2018) (internal citations omitted).

Under the AEMLD, a defendant will be liable “if it manufactures, designs,

or sells an unreasonably dangerous product that reaches the consumer substantially

unaltered and, because of its unreasonably dangerous condition, injures the

consumer when it is put to its intended use.” Beam v. Tramco, Inc., 655 So.2d 979,

981 (Ala. 1995).

“The manufacturer of a product is not required to produce the safest possible

product, but only to produce a product that is reasonably safe when put to its

intended use.” Graham v. Sprout-Waldron and Co., 657 So.2d 868, 870 (Ala.

1995) (citation omitted). Ergo, “[t]he fact that one sustains an injury from a

product does not always establish that the product was unreasonably dangerous.”

Beam, 655 So.2d at 981. For a product to be “unreasonably dangerous,” or

defective, it must fail to “meet the reasonable safety expectations of an ordinary

consumer, that is, an objective ordinary consumer, possessed of the ordinary

knowledge common to the community.” Tillman v. R.J. Reynolds Tobacco Co.,

871 So.2d 28, 32 (Ala. 2003) (internal citation omitted); Casrell v. Altec Indus.,

Inc., 335 So.2d 128, 133 (Ala. 1976) (stating that the terms “defective” and

“unreasonably dangerous” are synonymous with each other). Accordingly, “the

plaintiff must affirmatively show that the product was sold with a defect or in a

defective condition.” Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1051

(Ala. 2007) (emphasis added).

“An essential element of an AEMLD claim is proof that the product reached

the consumer without substantial change in the condition in which it was sold.”

Sears, Roebuck & Co. v. Harris, 630 So.2d 1018, 1027 (Ala. 1993). “[T]he

plaintiff bears the burden of proving that the product was in a defective condition

when it left the defendant’s control.” Jordan v. Gen. Motors Corp., 581 So.2d 835,

837 (Ala. 1991). That said, an altered or modified product does not necessarily

relieve a manufacturer of liability. Sears, 630 So.2d at 1027. However, “[w]hen a

defect created by an alteration to a product after it left the seller’s control is the

factual and proximate cause of an injury, and the alteration was not foreseeable, the

alteration amounts to an intervening or superseding cause of the injury and relieves

the seller from liability under the AEMLD.” Kirk v. Garrett Ford Tractor, Inc.,

650 So.2d 865, 867 (Ala. 1994).11

While negligence and the AEMLD have different elements, there are

“measure[s] of commonality” between the two theories in the products liability

sphere. McMahon v. Yamaha Motor Corp., 95 So.3d 769, 772 (Ala. 2012).

“Specifically, a plaintiff pursuing a products-liability claim against a manufacturer

11 In Kirk, the Supreme Court of Alabama affirmed summary judgment because the removal of

the protective shield from an auger was a substantial change that relieved the seller from liability

for injuries caused when the worker's leg became entangled in the auger. Kirk, 650 So.2d at 867.

under either theory can succeed only if the plaintiff establishes that the product at

issue is sufficiently unsafe so as to render it defective.” McMahon, 95 So.3d at

772.

“Although a jury will normally determine the dangerousness of a product,

‘certain products whose inherent danger is patent and obvious do not, as a matter

of law, involve defects of a sort that a jury should resolve.” Tillman, 871 So.2d at

32 (quoting Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir. 1990)). For

an inherently dangerous product, such as a firearm, once a plaintiff has shown

sufficient evidence to support a finding of defectiveness, to recover for negligence

or under the AEMLD, the plaintiff must additionally establish “‘the existence of a

safer, practical alternative design for the allegedly defective product.’” Garrison v.

Sturm, Ruger & Co., Inc., 322 F. Supp. 3d 1217, 1225−26 (N.D. Ala. 2018) (citing

Hosford v. BRK Brands, Inc., 223 So.3d 199, 208 (Ala. 2016)).

Another “measure of commonality” between negligence and the AEMLD is

“proximate cause.” Rodgers, 762 Fed. Appx. at 1021; see also Morguson, 857

So.2d at 800. “The plaintiff has the burden of presenting substantial evidence of

proximate cause.” Morguson, 857 So.2d at 800 (citation omitted). “Substantial

evidence” is “evidence of such weight and quality that fair-minded persons in the

exercise of impartial judgment can reasonably infer the existence of the fact to be

proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871

(Ala. 1989). “‘Proximate cause is an act or omission that in a natural and

continuous sequence, unbroken by any new and independent causes, produces an

injury or harm and without which the injury or harm would not occur.’” Id. (citing

Dillard v. Pittway Corp., 719 So.2d 188, 192 (Ala. 1998)). “The cornerstone of

proximate cause is foreseeability.” Morgunson, 857 So.2d at 800 (citations

omitted). If there is an unforeseeable intervening cause, then the causal chain is

broken. Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala. 1976). “The

question of proximate cause is almost always a question for the jury,” and it “must

go to the jury if reasonable inferences from the evidence support the theory of the

complaint.” Marshall Cnty. v. Uptain, 409 So.2d 423, 425 (Ala. 1981).

b. Analysis

In preliminary matters, there is no dispute that Kahr qualifies as a

manufacturer that may be held liable under the AEMLD. Additionally, the product

at issue, Kahr’s CW9 semi-automatic pistol, is inherently dangerous, as a matter of

law. An ordinary objective consumer would expect that the CW9 pistol discharges

when the consumer pulls the trigger. However, it is undisputed that the same

consumer would reasonably expect that the pistol would not drop fire.

Thus, the Court’s analysis turns to address the premise of Kahr’s argument:

whether, under the Second Theory, Plaintiffs set forth sufficient evidence such that

a reasonable jury could find that Kahr’s design of the CW9 pistol is defective and

proximately caused the Subject Pistol to drop fire, thereby injuring Mr. Lyons. If

Plaintiffs meet that burden, the Court will then evaluate whether a reasonable jury

could find that designing the CW9 pistol with a trigger safety would be a safer,

practical, alternative design.

Even viewing the evidence in the light most favorable to the Plaintiffs, the

Court finds that the Second Theory does not affirmatively show that the CW9

pistol’s design is “sufficiently unsafe so as to render it defective” or is susceptible

to drop-firing. McMahon, 95 So.3d at 772. The evidentiary foundation underlying

the Second Theory and its causation hypotheses is the “damage” in the Subject

Pistol caused by some piece of debris or foreign material.12 (Doc. 51-10 at 34.)

Mr. Powell testified, more than once, that “[i]f the damage isn’t present, and [the

disconnector tab] doesn’t hook onto the slide to be pulled forward, then it’s not

going to drop fire.” (Doc. 51-10 at 29, 34.) In other words, if there is no damage,

then there is no design defect. Mr. Powell’s own report stated that the CW9 pistol’s

disconnect design is “common” amongst striker-fired pistol designs, and the

disconnector tab is designed to have contact with the slide. (Doc. 58-5 at 5.) And to

state the obvious, the presence of debris or foreign material in the cavity where the

disconnector tab sits is not part of the CW9 pistol’s design. Plaintiffs do not

12 The terms “debris” and “foreign material” in this opinion do not include grease or dirt (i.e.,

smaller particles), which the parties agree were present in the Subject Pistol and are generally

found in all pistols after being used. (Doc. 51-10 at 28.) There is no genuine dispute that the

grease and dirt in the Subject Pistol was not enough to cause a partial trigger pull. (Doc. 51-10 at

14, 28.)

present any evidence, or even argument, that based on Kahr’s design for the CW9

pistol, debris or foreign material capable of causing a partial trigger pull, such as

brass or polymer, can collect in the pistol during ordinary use. In fact, when Mr.

Powell manipulated the Exemplar’s trigger, he did not push the particles through

some opening in the frame: he either took off the slide or locked the slide to the

rear and manually placed the particles in the cavity. (Doc. 51-10 at 53.) And at one

point in Mr. Powell’s deposition, Kahr’s counsel asked, “You think that the [CW9]

pistol’s defective because it’s—you can put strategically placed debris in there;

right?” (Doc. 51-10 at 78.) Mr. Powell answered, “Yeah, if it had a trigger safety,

that wouldn’t happen.” (Doc. 51-10 at 78.) Based on the evidence, the only

reasonable inference is that such particles do not just accumulate in the CW9’s

pistol when it is used as intended but rather will only be there when someone

“strategically” puts them there.

Plaintiffs also fail to show “substantial evidence of proximate cause”—an

essential element of their case. Morguson, 857 So.2d at 800 (citation omitted).

Assuming, arguendo, that a jury could find that the presence of debris or foreign

material in the pistol or the damage resulting from that presence could cause a

partial trigger pull, that presence would qualify as an intervening cause because

Kahr could not have reasonably foreseen someone removing or locking the slide

and then manually placing particles of debris or foreign material into a firearm—

an inherently dangerous product. Such placement would be akin to the removal of

the protective shield from an auger, which the Supreme Court of Alabama agreed

was unforeseeable. Kirk, 650 So.2d at 867.

Moreover, Plaintiffs have not met their burden of proving that the Subject

Pistol was in a defective condition when it left Kahr’s control in 2010—a

requirement to recover under the AEMLD. Jordan, 581 So.2d at 837. Both Mr.

Powell and Mr. Watkins agree that the damage to the disconnector tab is not the

result of normal wear and tear. (Doc. 51-7 at 7 and Doc. 51-10 at 14.) That

conclusion is further supported by the fact that Mr. Powell’s Exemplar, which did

not have a damaged disconnector tab, did not get “dragged forward” by the slide.

(Doc. 51-10 at 15.) There is no genuine dispute that whatever caused the damage

to the disconnector tab and/or a partial trigger pull was not in the Subject Pistol at

the time it left Kahr’s possession. (Doc. 51-10 at 29.) It thus follows that if one of

Mr. Powell’s hypotheses occurred, such occurrence would qualify as a “substantial

change” in the condition of the Subject Pistol. Sears, 630 So.2d at 1027. And, as

previously analyzed, the change or damage caused by the presence of debris or

foreign material would be unforeseeable, so Kahr would be relieved from liability

under the AEMLD. Kirk, 650 So.2d at 867.

Finally, the evidence underlying the Second Theory’s causation hypotheses

“is so one-sided that [Kahr] must prevail as a matter of law.” Anderson, 477 U.S. at

251–52. Regarding the first hypothesis, even if a reasonable jury could find that a

piece of debris or foreign material damaged the disconnector tab and scratched the

slide, the evidence overwhelmingly suggests that such material was not in the

Subject Pistol at the time of Mr. Lyons’s incident. Neither Mr. Powell nor Mr.

Watkins found debris or foreign material when they examined it. (Doc. 51-10 at

14.) And after purchasing the Subject Pistol, Mr. Lyons disassembled it, cleaned it,

and did a functions check. (Doc. 54 at 7.) He fired the Subject Pistol multiple

times, including the week before the incident. (Doc. 54 at 7.) Nothing suggests

there was a piece of debris or foreign material in the Subject Pistol during those

times. On the contrary, Mr. Lyons reported that the Subject Pistol functioned

properly when he used it. (Doc. 54 at 7.) Again, Plaintiffs’ evidence does not show

that debris or foreign material can collect in the CW9 pistol, and there is certainly

no evidence that Mr. Lyons “strategically” placed anything in the Subject Pistol.

Ergo, based on the evidence, a reasonable jury could not find that the first

hypothesis caused the Subject Pistol to drop fire.

And the only evidence supporting the second hypothesis is but a “mere

scintilla.” Walker, 911 F.2d at 1577. Even if the Subject Pistol’s slide moved the

disconnector tab when it released forward, Mr. Powell’s own testimony is that the

movement was slight and that the trigger returned to the full position every time he

tested it. (Doc. 51-10 at 13, 16, 27.) It is undisputed that the Subject Pistol passed

multiple function tests. (Doc. 54 at 10.) Mr. Powell conceded that he never saw the

Subject Pistol’s disconnector tab dragged forward enough to drop fire. (Doc. 51-10

at 16.) Mr. Powell even admitted that it is simply a possibility that friction between

the slide and the damaged disconnector tab, alone, could cause a partial trigger

pull. (Doc. 51-10 at 74.) Thus, the second hypothesis is pure conjecture, and a

reasonable jury could not find that the second hypothesis caused the Subject Pistol

to drop fire. Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1482

(11th Cir. 1985) (holding that an inference based on conjecture is unreasonable).

As an aside, the Second Theory appears to be a “Hail Mary,” of sorts.

Plaintiffs’ opposition to Kahr’s motion for summary judgment focuses solely on

the First Theory. (Doc. 59 at 12.) In fact, in the paragraph which addresses Kahr’s

issues with Mr. Powell’s manipulation of the Exemplar’s trigger, and thus is

arguably the only point in the brief which touches on the Second Theory, Plaintiffs

dismiss the timing of the damage in the Subject Pistol as “irrelevant” because “its

trigger had the same inertial energy movement when dropped as every other Kahr

pistol.” (Doc. 59 at 16.) The absence of argument that the Second Theory

precludes summary judgment is telling. Had Mr. Powell not mentioned the Second

Theory during the Court’s hearing, the Court could have found that Plaintiffs had

abandoned it.

In sum, under the Second Theory, Plaintiffs have failed to show a prima

facie case for products liability under theories of negligence or the AEMLD, which

“necessarily renders all other facts immaterial” and mandates a finding of summary

judgment. Celotex, 477 U.S. at 322.

Because Plaintiffs have not shown there is a genuine dispute of material fact

as to whether Kahr’s design of the CW9 pistol is defective or unreasonably

dangerous, or, said differently, is susceptible to drop-firing, the Court’s analysis

regarding whether a trigger safety qualifies as a safer, practical, alternative design,

is pretermitted.

2. Breach of Implied Warranty

Kahr argues that that Plaintiffs’ breach of implied warranty claim should be

dismissed because the cause of action is subsumed by the AEMLD claim. (Doc. 54

at 25.) In their opposition, Plaintiffs state that they do not contest Kahr’s position

on that matter. (Doc. 59 at 11.)

In the Eleventh Circuit, “the onus is on the parties to formulate arguments;”

if there are grounds alleged in the complaint but not relied upon in a party’s motion

for summary judgment or opposition brief, then those grounds are “deemed

abandoned.” Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)

(citations omitted); see also Floyd v. Home Depot U.S.A., 274 Fed. Appx. 763, 765

(11th Cir. 2008) (finding that the district court properly determined that Floyd had

abandoned his retaliation termination claim because in his opposition to Home

Depot’s motion for summary judgment, he did not respond to Home Depot’s

argument on that claim).

Here, Plaintiffs have not only failed to respond to Kahr’s argument on the

breach of warranty claim, but they have also, in their brief, announced their intent

not to do so. As such, the Court finds that Plaintiffs have abandoned their breach of

implied warranty claim and that dismissal of that claim is appropriate on that basis.

3. Wantonness and Punitive Damages

Wantonness requires a showing of “the conscious doing of some act or the

omission of some duty while knowing of the existing conditions and being

conscious that, from doing or omitting to do an act, injury will likely or probably

result.” Ex parte Essary, 992 So.2d 5, 9 (Ala. 2007). Because Plaintiffs have not

established that Kahr’s CW9 pistol is defectively designed, it follows that they

cannot establish that Kahr designed the pistol while knowing the pistol could drop

fire. Thus, Plaintiffs’ claim for wantonness, to the extent it exists, is also due to be

dismissed.

The Court also recognize that the parties disagree on whether Plaintiffs may

recover punitive damages. (Doc. 54 at 26 and Doc. 59 at 17.) However, because

summary judgment is due to be granted, and because punitive damages are a type

of remedy and are not a separate cause of action, the Court need not address

parties’ arguments on that disagreement.

IV. CONCLUSION

Based on the foregoing analysis, the Court GRANTS IN PART and

DENIES IN PART Kahr’s motion to exclude Mr. Powell’s testimony. (Doc. 51.)

Nevertheless, even with that testimony, Plaintiffs have failed to make a prima facie

case for negligence or liability under the AEMLD, and Kahr is entitled to a

judgment on the merits under Federal Rule of Civil Procedure 56. Thus, the Court

GRANTS Kahr’s motion for summary judgment and DISMISSES Plaintiffs’

claims with prejudice. (Doc. 53.) And, for the reasons already discussed, Mrs.

Lyons’s claim for loss of consortium is also due to be dismissed because it is

derivative of the claims of the injured spouse, Mr. Lyons. Ga. Power Co. v. Partin,

727 So.2d 2, 6 (Ala. 1998). A final judgment will be entered separately.

DONE and ORDERED Match 31, 2023.

Ko SZ C Sha

LILES C. BURKE

UNITED STATES DISTRICT JUDGE

4]