Ahern v. Sig Sauer, Inc.

• Docket Number: 21-cv-11007-DJC
• Decision Date: 07 December 2021
• Parties: THOMAS AHERN, Plaintiff v. SIG SAUER, INC. and CITY of CAMBRIDGE Defendants.
• Court: U.S. District Court — District of Massachusetts

1

THOMAS AHERN, Plaintiff v. SIG SAUER, INC. and CITY of CAMBRIDGE Defendants.

No. 21-cv-11007-DJC

United States District Court, D. Massachusetts

December 7, 2021

MEMORANDUM AND ORDER

Denise J. Casper, United States District Judge.

I. Introduction

Plaintiff Thomas Ahern (“Ahern”) has filed this lawsuit against Defendants Sig Sauer, Inc. (“Sig Sauer”) and the City of Cambridge (“Cambridge”) asserting claims against Sig Sauer for strict product liability (Count I), negligence (Count II) breach of the implied warranty of merchantability (Count III), breach of implied warranty of fitness for a particular purpose (Count IV), negligent infliction of emotional distress (Count V), intentional infliction of emotional distress (Count VI), violation of Mass. Gen. L. c. 93A, §§ 2, 11 (“Chapter 93A”) (Count VII), and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2308(a) (“MMWA”) (Count IX), arising from the alleged discharge of Ahern's P320 Pistol manufactured by Sig Sauer. D. 1.^[1] Sig Sauer now moves to dismiss for failure to state a claim. D. 17. For the reasons stated below, the Court ALLOWS Sig Sauer's motion to dismiss as to Counts I-VI and IX and DENIES the motion as to Count VII. Counts II, III V and IX are dismissed without prejudice and with leave to amend.

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole, ” the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” García-Catalán, 734 F.3d at 103 (citation omitted).

III. Factual Background

The following summary is based upon the allegations in Ahern's complaint, D. 1, which are accepted as true to resolve the motion to dismiss.

Ahern serves as a Detective Lieutenant with the Cambridge Police Department (“CPD”), where for the past five years he was commander of its Special Response Team. D. 1 ¶ 1. Ahern is a certified firearms instructor and armorer for the Sig Sauer P320 Pistol (“P320”), among other firearms. Id. ¶ 2. Around summer 2017, CPD discussed transitioning its officers to the P320 from different, previously used Sig Sauer models. See id. ¶¶ 5, 15, 28.

Ahern conducted research on the P320 and expressed safety concerns to CPD leadership, specifically regarding reports of the P320 firing or discharging without a trigger pull. Id. ¶¶ 8, 28-37. Since the P320 was introduced in North America, users (including law enforcement officers) have reported at least 52 of these instances. Id. ¶ 7; see id. ¶¶ 107-55. In marketing the P320, Sig Sauer stated that the “P320 won't fire unless you want it to.” Id. ¶¶ 13, 58-59. In the original version of the P320 owner's manual, however, Sig Sauer warned that the pistol may fire if dropped and recommended that users keep the chamber empty unless actually firing, although such language was replaced in 2017 to state that “[c]areless and improper handling of any firearm can result in unintentional discharge.” Id. ¶¶ 60, 101. CPD required its officers to carry firearms with a round of ammunition in the chamber. Id. ¶ 61. Ahern alleges that Sig Sauer was aware of these discharge instances as early as 2016 but did not disclose them. Id. ¶¶ 68-75. In August 2017, Sig Sauer instituted a Voluntary Upgrade Program for the P320, which was intended to correct a defective firing assembly in several hundred thousand P320s and included other changes unrelated to drop safety (e.g., weight and design). Id. ¶¶ 87-92.

In 2018, CPD transitioned its service firearms to the P320. Id. ¶¶ 9-10. Sig Sauer certified to CPD that it provided only P320s that had been built with the new and upgraded components outlined in the Voluntary Upgrade Program. Id. ¶ 38. Since CPD transitioned to the P320 in 2018, it has reported three un-commanded discharges. Id. ¶ 15. In May 2019, while working an overtime shift, Ahern's P320 discharged without a trigger pull. Id. ¶¶ 11, 40. The discharge occurred while Ahern was performing a routine function check of the holster and P320. Id. ¶¶ 12, 41. During the routine function check, Ahern did not touch the trigger. Id. ¶ 12. Upon discharge, the bullet impacted Ahern's left thigh over his duty pants and deflected off a magnet fixed to his cellphone, landing in an equipment bag beside him on the floor. Id. ¶ 12, 42.

IV. Procedural History

Ahern initiated this lawsuit on June 16, 2021. D. 1. Sig Sauer now moves to dismiss. D. 17. The Court heard the parties on the pending motion and took the matter under advisement. D. 35.

V. Discussion

A. Strict Liability (Count I)

Ahern asserts one count of strict product liability (Count I), but Massachusetts does not provide a strict liability cause of action for a defective product. Phillips v. Medtronic, Inc., 754 F.Supp.2d 211, 216 (D. Mass. 2010) (citing Commonwealth v. Johnson Insulation, 425 Mass. 650, 653 (1997) (explaining that Massachusetts law does not “allow claims for strict liability in tort for defective products” but that the “warranty [of merchantability] should establish liability as comprehensive as that to be found in other jurisdictions that have adopted the tort of strict product liability”)). “Such a claim must be brought as a claim for breach of the implied warranties of merchantability and/or fitness for a particular purpose . . . or of an express warranty.” Id. As Ahern has asserted these implied warranty claims in Counts III and IV, the Court addresses them below and allows the motion to dismiss as to Count I.

B. Negligence (Count II) and Implied Warranty of Merchantability (Count III)

Ahern presses a negligence claim for defective design and failure to warn (Count II), and a claim for breach of the implied warranty of merchantability (Count III).

Sig Sauer asserts that both claims fail because Ahern has not alleged a cognizable injury, specifically that Ahern's complaint does not allege a physical injury, therefore the economic loss rule bars recovery for these claims. D. 18 at 6-8 (citing Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 250, 252 (1st Cir. 2010) (explaining that “[r]ecovery generally is not available under the warranty of merchantability where the defect that made the product unfit caused no injury to the claimant, the threat is now gone and nothing now possessed by the claimant has been lessened in value”); Haglund v. Philip Morris, Inc., 446 Mass. 741, 746 (2006) (explaining that a “seller breaches its warranty obligation when a product that is ‘defective and unreasonably dangerous' . . . for the ‘[o]rdinary purposes' for which it is ‘fit' causes injury”); FMR Corp. v. Bos. Edison Co., 415 Mass. 393, 395 (1993) (noting that “purely economic losses are unrecoverable . . . in the absence of personal injury or property damage”)).

Ahern counters that the Court should “infer that a bullet striking a cell phone in the pocket of a person's pant and impacting the person's thigh will result in physical injury, including blunt force trauma and contusions.” D. 28 at 4. Ahern, however, cites no authority for the proposition that a court may infer physical injury when none is alleged, and here he does not allege such blunt force trauma, contusions or any other physical injury from the bullet striking a cellphone in his pocket. See D. 1 ¶¶ 171, 177 (alleging emotional distress, mental anguish, and other non-physical injuries in Counts II and III).^[3] Ahern relies upon Berish v. Bornstein, 437 Mass. 252, 268 (2002), to argue that a court may infer physical injury where none is alleged, but Berish does not support such a proposition. First, Berish “extended the economic loss doctrine” to construction defects. Solfisburg v. Glenco, Inc., No. 18-cv-10266-IT, 2019 WL 4770951, at *4 (D. Mass. Sept. 30, 2019) (citing Berish, 437 Mass. at 267). Second, even assuming Berish applied to Ahern's claims here, the condominium owners there made allegations that improper installation of skylights, chimneys and sliding doors resulted in “water leakage and damage to the sheet rock and other materials” inside the units, and that construction of outdoor decks not in accordance with the state building code resulted in premature deterioration and rot. Berish, 437 Mass. at 256. In other words, the owners alleged property damage that caused them a loss, which Ahern does not. See id. at 268.

At the motion hearing, Ahern's counsel suggested that he could amend the complaint with allegations that the bullet impacting Ahern's leg “did cause a contusion he went to the emergency room [and] they diagnosed him with a leg injury.” See also D. 28 at 4 (suggesting that medical records showing Ahern's injuries from the bullet impact could be submitted to the Court). Accordingly, Ahern has failed to state a claim for negligence (Count II) and breach of the implied warranty of merchantability (Count III), and the Court allows the motion as to these counts without prejudice...