In any product liability action, one of the first questions every attorney will ask is: “Where is the product?” The plaintiff has the burden of showing that the defect existed when the product left the defendant's control, and that the product reached the plaintiff without any alterations or modifications. But what happens if the plaintiff destroys the product?
In a recent Eighth Circuit case, Lanny O’Neal was killed in 2008 when a 1971 Remington Model 700 .243 caliber-bolt action rifle unexpectedly discharged. His wife, Carol O’Neal, after two attorneys had declined to represent her, had the rifle destroyed because it reminded her of his death.
Several months later, Carol saw a news documentary on a trigger defect in Model 700 rifles which prompted her to file suit in 2011. A South Dakota district court granted summary judgment to Remington on the grounds that O'Neal could not show whether the alleged defect existed at the time of manufacture or whether the defect resulted from a subsequent alteration or modification to the rifle. On appeal, the Eighth Circuit reversed, holding that O’Neal presented sufficient circumstantial evidence to show the alleged defect was not the result of a subsequent alteration or modification.
Remington used a trigger mechanism in its Model 700 rifles called the Walker trigger. Remington knew the Walker trigger could cause Model 700 rifles to fire a round when the safety lever is released from the safe position to the fire position, without the trigger being pulled. This defect resulted from the manner in which two components of the trigger mechanism – the sear and the connector – interacted with one another, coupled with the lack of a physical attachment between the connector and the trigger itself. Remington knew of the Walker trigger problem as early as 1979, but decided against recalling the Model 700 rifles.
In addition to presenting evidence that the subject rifle was equipped with a Walker trigger mechanism at the time of manufacture, O’Neal presented substantial evidence that the trigger mechanism was not modified or altered from the mid-1980s (the date Lanny’s stepfather bought the gun) to the date of the hunting accident. However, there was a gap of over a decade of unaccounted time from 1971 to the date of purchase, which was at the heart of the dispute.
Remington argued that the destruction of the rifle precluded O'Neal from establishing that the trigger mechanism was the original Remington trigger mechanism, rather than an after-market trigger made by another manufacturer.
The Eighth Circuit (in a 2-1 decision) disagreed noting that there was no evidence the subject rifle had a history of inadvertent discharges that might spur an owner to replace the trigger mechanism. The Court majority reasoned that the fact that “the subject rifle was used many times without incident from the mid-1980s through November 2008, and then suddenly inadvertently discharged, is more consistent with the unpredictable manifestation of the inherent design defect in the Walker trigger, than it is with the rifle being equipped with a replacement trigger designed to eliminate the possibility of an inadvertent discharge.”
Further, the hunting accident was investigated by the state, local and federal authorities which included an inspection of the rifle and a description of additions to the rifle made by other manufacturers. An aftermarket trigger mechanism was not included. The court stated that the absence of such information supports the reasonable inference that the trigger mechanism in the subject rifle was the original Remington Walker trigger.
Accordingly, the Eighth Circuit reversed the trial court’s summary judgment ruling in favor of Remington, and remanded the case for trial, concluding that O'Neal presented sufficient circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification.
The Eight Circuit’s opinion should serve as a reminder that lack of the product does not signal an automatic win for the defense. If Plaintiff can provide circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification, plaintiff will be able to avoid summary judgment.