Muzyka v. Remington Arms Co., Inc.
| Decision Date | 25 October 1985 |
| Docket Number | No. 84-1212,84-1212 |
| Citation | 774 F.2d 1309 |
| Parties | , 19 Fed. R. Evid. Serv. 356, Prod.Liab.Rep.(CCH)P 10,755 Dawn MUZYKA, Plaintiff-Appellant, v. REMINGTON ARMS CO., INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe K. Longley, Austin, Tex., Jack Welch, Marlin, Tex., Mark L. Kincaid, Austin, Tex., for plaintiff-appellant.
Hilton H. Howell, Waco, Tex., for defendant-appellee.
Before GEE, POLITZ and WILLIAMS, Circuit Judges.
The sole issue presented on this appeal is whether the trial court erred in excluding, under Rule 407 of the Federal Rules of Evidence, evidence of a subsequent design change to a rifle. In this diversity jurisdiction strict liability case, Dawn Muzyka seeks recovery from Remington Arms Co., Inc., for injuries sustained as a consequence of an accidental firing of a Remington 700 ADL, .22-250 calibre, magazine-fed bolt-action rifle. In her state court complaint, removed by Remington to federal court, Muzyka contended that the two-position, bolt-lock safety on the rifle was defectively designed and unreasonably dangerous. The jury returned a verdict in favor of Remington. Muzyka appeals the denial of her motion for new trial. We vacate and remand.
On August 16, 1981, a few days after the death of her husband, Mrs. Muzyka was packing, preparatory to moving with her three small children to live with her grandparents. The packing was being assisted by other family members, including her stepfather, David Melton. Melton first removed and packed two guns from a gun cabinet and then reached the rifle in question. Not knowing if the rifle was loaded, Melton partially opened the bolt to examine the chamber and magazine. Seeing one or more rounds, Melton fully opened the bolt in order to unload the weapon. On this particular Remington rifle, which then employed a two-position, bolt-lock safety, it was necessary to place the safety in the "fire" position in order to work the bolt. Since this model did not have a floor-plate, which would have permitted the emptying of the magazine from underneath without taking the gun off safety, the rifle could only be unloaded by working the bolt, with the safety off, thereby ejecting the shells. Melton testified that he first ejected three shells and, believing the rifle empty, pushed the bolt forward and began to turn the bolt down, toward the locked position, when the rifle fired. The bullet ricocheted and struck Dawn Muzyka.
Muzyka claimed that the rifle was unreasonably dangerous because the bolt-action design required that the rifle be placed in the "fire" position, i.e., the safety-off position, before it could be unloaded. A few months after the subject accident, Remington adopted a new design for its Model 700 series which now permits the working of the bolt to unload the weapon with the safety on. It is no longer necessary to put this rifle in the ready-to-fire position in order to unload it.
The jury received evidence of the rifle's bolt-action design but the court excluded evidence of the new design. By an in limine motion, Remington secured this exclusion of evidence under Fed.R.Evid. 407. 1 We find no error in that exclusion.
The excellence of the safety features of the Remington Model 700 rifle constituted the core of the defense. In the opening statement, defense counsel informed the jury of Remington's defense, stating: "We contend under the evidence that we expect you to hear that the Remington Model 700 rifle is one of the most popular, best, strongest, safest rifles that has been manufactured on the market." Remington offered testimony that the two-position, bolt-lock safety was the best safety available--indeed, that it was the best and the safest rifle on the market. As this evidence was offered by Remington, counsel for Muzyka sought to introduce evidence of the subsequent design change to impeach the assertions In an effort to capture the importance attached to this evidence of excellence, and to reflect plaintiff counsel's repeated attempts to introduce evidence of design change, we set forth, at some length, extracts from the trial transcript:
of the bolt-action's superior safety characteristics. The trial court excluded this evidence when offered for impeachment purposes.
Q MR. HOWELL [defense counsel]: Let me ask you, please, sir, if you have an opinion as to whether or not the presence of the bolt-lock as a feature on the Remington Model 700 Rifle so that the safety had to be moved to the off position to unload it, represented a danger to the user? Do you have an opinion?
A [defense witness]: I do not think it is a danger, no.
* * *
* * *
MR. LONGLEY [plaintiff's counsel]: May we approach the bench, Your Honor?
THE COURT: Yes, sir.
(At-the-bench discussion.)
(End of at-the-bench discussion.)
* * *
* * *
Q [defense counsel]: And by 1981, had it become the biggest selling and most popular rifle in the world?
A [defense witness]: Yes. Very definitely. It sold in greater numbers by far than any of its competition. And it really is the rifle that all other rifle manufacturers measure their products in comparison.
Q Would you explain that?
A Well, in quality, in sales, in safety, every facet the Remington is the premier rifle, bolt-action rifle in the country today. It has the highest sales.
Q Was that true in the period from 1965 through 1981?
A Absolutely.
(At-the-bench discussion.)
other model. I seek to make that proof, Your Honor.
(End of at-the-bench discussion.)
* * *
* * *
Q [defense counsel]: Would you rate on a scale of one to ten between shotguns and bolt-action rifles, with one being the least safe or even dangerous, and with ten being the ultimate best safety that you know of on let's say just on bolt-action rifles, just bolt-action rifles, bolt-action sporting rifles from 1965 through 1981, would you rate on a scale of one to ten, with one being the least, the least good safety, and ten being the best, the Remington Model 700 two-position safety with bolt-lock?
A [defense witness] Nothing can be a ten. I would rate it like 9.8 or 9.9.
Q Do you know of any safety system on a bolt-action rifle marketed in that period of time that in your opinion was superior to the Remington Model 700, two-position safety and bolt-lock?
A No, sir.
Q From the standpoint of safety, reliability, usage, in every consideration?
A Absolutely nothing, no.
(At-the-bench discussion.)
(End of at-the-bench discussion.)
The stressing of the importance of the excellence of the two-position safety, which Remington had abandoned in its 1981 design change, continued into closing argument when defense counsel argued to the jury that a preeminent rifle authority considered it "the best combination of safety and operation yet devised." Defense counsel stated:
Can you name a rifle with a...
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