Heikkila v. Kahr Firearms Grp.

• Decision Date: 22 December 2022
• Docket Number: Civil Action 1:20-cv-02705-MDB
• Parties: JOHN HEIKKILA, Plaintiff, v. KAHR FIREARMS GROUP, Defendant.
• Court: U.S. District Court — District of Colorado

JOHN HEIKKILA, Plaintiff, v. KAHR FIREARMS GROUP, Defendant.

Civil Action No. 1:20-cv-02705-MDB

United States District Court, D. Colorado

December 22, 2022

ORDER

Maritza Dominguez Braswell, United States Magistrate Judge

This matter is before the Court on two motions. Defendant Kahr Firearms Group filed a Motion to Preclude Plaintiff's Proposed Expert Paul Paradis. ([“Daubert Motion”], Doc. No. 56.) Plaintiff filed a response in opposition, and Defendant replied. ([“Daubert Response”], Doc. No. 67; [“Daubert Reply”] Doc. No. 69.) Defendant also filed a Motion for Summary Judgment. ([“SJ Motion”], Doc. No. 61.) Plaintiff filed a response in opposition, and Defendant replied. ([“SJ Response”], Doc. No. 66; [“SJ Reply”], Doc. No. 70.)

For the reasons described herein, the Daubert Motion is DENIED, and the SJ Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

The Incident

This is a products liability action arising from an incident that occurred at a Cinemark Movie Theater in Colorado Springs Colorado, on August 12, 2018. (See Doc. No. 61 at 3; Doc. No. 66 at 2.) The following facts are detailed in Defendant's Statement of Material Facts, and admitted by Plaintiff in his Response to Defendant's Statement of Material Facts:

• On August 12, 2018, before visiting the Cinemark Movie Theater (“Movie Theater”) located in Colorado Springs, Colorado, Plaintiff, his wife, and daughter stopped at Big R, a retail store, to purchase a Blackhawk Holster.

• After leaving Big R, Plaintiff, his wife, and daughter went to have lunch.

• After eating lunch, Plaintiff and his family proceeded to the Movie Theater.

• Plaintiff was prohibited from carrying a firearm in the Movie Theater as it is against Cinemark's policy.

• After gaining access to the Movie Theater, Plaintiff went to the bathroom, entered the stall, pulled down his pants with the holstered pistol still attached to his belt, and used the bathroom.

• While proceeding to get up from the toilet, Plaintiff pulled up his pants to below his waist, while trying to hold his pants in place by spreading his legs. (Ex. A, at 81-82).

• As he started tucking in his shirt, the right side of his jeans “tipped down,” and he heard a gunshot.

• After realizing what happened, Plaintiff buttoned his pants, picked up the Subject Pistol, removed the spent casing, put the Subject Pistol in his pants pocket, and proceeded out of the bathroom.

• Without notifying staff of the incident, Plaintiff proceeded to the concession stand of the Movie Theater and told his wife and daughter that they had to leave.

• Plaintiff's wife then transported him to the hospital for treatment.

(See Doc. No. 61 at 3-4; Doc. No. 66 at 2-3 (internal cites to the record omitted).) In his Statement of Additional Disputed Facts, Plaintiff adds that on the day in question the gun “fell out of its holster and discharged when the upper right corner of the rear slide struck the tile floor, striking him in the abdomen.” (Doc. No. 66 at 4 (citing Doc. No. 61-4 [Heikkila Depo.], at 82: 15-16).) As evidence of this, Plaintiff states that “[t]here are chips in the tile flooring where the gun struck upon impact that are consistent with the dimensions of the rear slide.” (Id. (internal cites to the record omitted).) Defendant denies “Plaintiff's account of the manner in which the Subject Pistol discharged,” citing to its expert report for support, and arguing “that the chips in the tile flooring likely occurred when the tile was being installed.” (Doc. No. 70 at 2.) Additionally, Defendant argues that the alleged facts concerning the discharging of the gun when it fell to the floor, are immaterial. (Id. At 1-2.)

Plaintiff brought negligence and products liability claims, alleging that Defendant breached its duties to manufacture and sell the pistol “in a safe and reasonable manner that would not allow for accidental discharges when the weapon was dropped.” (Doc. No. 3 at ¶ 18.)

The Experts

Plaintiff hired Paul Paradis, a retired Criminalist for the Colorado State Public Defenders and owner of Paradise Sales, a Colorado firearms store, to render an expert opinion in this case. ([“Paradis Report”], Doc. 56-3.) Mr Paradis's opinion is that “the discharge was more likely than not caused by a significant impact of the firearm against a hard surface due to being dropped.” (Id. at 7.) In his report, Mr. Paradis notes that he investigated the scene, investigated Plaintiff's clothing, and inspected the firearm. (Id. at 3-4.) He also explains how he tested the firearm, and notes that he was “precluded from doing a drop test of this firearm by Kahr's attorneys and [is] unaware of what types of drop-testing, if any, [have] been conducted by Kahr on any of their firearms.” (Id. at 4.)

Defendant retained Michael Shain, who inspected the incident-related evidence at Mr. Paradis's shop and conducted drop testing of new-in-box exemplar firearms. (Doc. No. 61-5 at 3 7.) Mr. Shain also reviewed Plaintiff's deposition, the police report, the report and photos of Mr. Paradis, and other materials. Mr. Shain formed the following opinions:

• Plaintiff used Blackhawk holster for his firearm and that holster was not designed for this application.

• Plaintiff also “incorrectly employed the holster as an ‘open carry,' outside the pants holster, when it was specifically intended to be worn as an ‘Inside-The-Pants' concealment holster.”

• In doing so, Plaintiff “created an unsecure and unsafe condition.”

• Plaintiff also “recklessly failed to secure his fully loaded pistol and allowed the still holstered pistol to be completely unsecured and uncontrolled while in the Cinemark Theater Men's Room stall.”

• The “extensive drop testing revealed no discharges of Exemplar Kahr pistols.”

• “Based on this extensive testing.. .the Kahr PM45 pistol is not susceptible to a drop discharge under the conditions set forth in this case.”

• “There is no physical evidence or testing data in the record to support the allegation that an impact discharge of the Kahr PM45 pistol caused Mr. Heikkila's injury. In fact, the physical evidence and the testing data support a discharge that was not the result of a drop impact.”

• “By eliminating a drop fire discharge from consideration through testing, Mr. Heikkila's injury was most likely a self-inflicted wound as the result of an accidental or inadvertent trigger pull.”

• “.the Kahr PM45 is of a safe design, passes the relevant industry and state imposed ‘drop safety' standards, and it can be handled safely and used safely for its intended use.”

(Doc. No. 61-5 at 21-22.)

Defendant also retained Derek Watkins, who inspected the firearm, plaintiff's clothing, and the scene of the incident. (See generally Doc. No. 61-4). Mr. Watkins also conducted what he refers to as abuse tests. (Id.) Additionally, Mr. Watkins also employed “[a] computer simulation incident reconstruction.. .to investigate the feasibility of [Plaintiff's] testimony.” (Id. at 3.) Mr. Watkins issued the following opinions:

• “No design or manufacturing defects were found in the subject pistol[.]”

• “No defects were found in the design or manufacture of the subject pistol which were in any way related to Mr. Heikkila's shooting incident[.]”

• “The subject pistol is safe in design and manufacture for its intended and reasonably foreseeable uses[.]”

• “The incident reconstruction modeling indicates that the discharge of Mr. Heikkila's pistol and his resulting injury were caused by his negligent and careless handling of the pistol in the bathroom stall and his failure to follow safe gun handling practices[.]”

• “The firearm's design, extensive drop testing, and the physical evidence of this case all indicate that this incident was caused by an accidental or intentional trigger pull, and was not the result of the firearm striking the tile floor of the bathroom[.]”

(Id. at 21.)

In his rebuttal report, Mr. Paradis notes that Defendant's experts point to the American National Standards Institute (ANSI) and Sporting Arms & Ammunition Institute (SAAMI) for standards that manufacturers must meet to ensure public safety. (Doc. No. 56-4 at 2-3.) However, according to Mr. Paradis, the experts' failure to “acknowledge the failure of the ANSI and SAAMI standards,” is notable because despite complying with those standards, certain firearms have failed/fired when dropped. (Id.) Mr. Paradis also appears to call the Defense experts' drop testing into question, noting that the firearms they tested “were not the Kahr PM 45 in question,” and reflecting concern that testing of the subject firearm was precluded by Kahr. (Id. at 4.)

Mr. Paradis addresses the Defense experts' conclusions that Plaintiff mishandled the weapon, by stating, “[i]gnorance is unfortunately common in the firearm world; I am not surprised by Mr. Heikkila's use of his firearm in this case. Further I can understand use of the holster as the belt tension is just about as great in the pants as well as outside the pants.” (Id. at 5.) Mr. Paradis does not elaborate further on this, other than to say, “the industry as a whole needs more improvement with regard to consumer education.” (Id.)

Mr Paradis also addresses the evidence and Defense experts' version of what most likely happened on the day in question. Specifically, Mr. Paradis addresses the blood-stained clothes Plaintiff was wearing that day, the medical records, the stall where the incident occurred, the cracked tile on the floor, and the accident reconstruction video prepared by Mr. Watkins and his team. (Id. at 5-22.) The Court will not recite all of Mr. Paradis's rebuttal points, but notes that Mr. Paradis criticizes Mr. Watkins's reconstruction animation as “not reliable or probable,” because it “leaves out critical information such...