Nemes v. Dick's Sporting Goods, Inc., 17-cv-1688 (NSR)

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: NELSON S. ROMÁN, United States District Judge
• Citation: 521 F.Supp.3d 328
• Parties: Jean M. NEMES and James Nemes, Plaintiffs. v. DICK'S SPORTING GOODS, INC., and Barnett Outdoors, LLC, Defendants.
• Docket Number: No. 17-cv-1688 (NSR),17-cv-1688 (NSR)
• Decision Date: 23 February 2021

521 F.Supp.3d 328

Jean M. NEMES and James Nemes, Plaintiffs.
v.
DICK'S SPORTING GOODS, INC., and Barnett Outdoors, LLC, Defendants.

No. 17-cv-1688 (NSR)

United States District Court, S.D. New York.

Signed February 23, 2021

521 F.Supp.3d 332

Paul Joseph Goldstein, Goldstein & Goldstein LLP, Poughkeepsie, NY, for Plaintiffs.

Christopher T. Sheean, Swanson, Martin & Bell, LLP, Chicago, IL, Peter Alan Lauricella, Marc James Kaim, Wilson Elser Moskowitz Edelman & Dicker LLP, Albany, NY, for Defendants.

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge:

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Plaintiffs Jean Nemes ("Mrs. Nemes") and James Nemes ("Mr. Nemes") (together "Plaintiffs") commenced this action on March 8, 2017, asserting products liability claims against Defendants Dick's Sporting Goods, Inc. ("Dick's") and Barnett Outdoors, LLC ("Barnett") (together, "Defendants"). (See Complaint, ("Compl."), ECF No. 1.) Plaintiffs raised claims for common law negligence, strict tort liability, and breach of warranty. (See id. at 6-7.)¹ Presently before the Court is Defendants’ Motion for Summary Judgment. For the following reasons, Defendants’ Motion for Summary Judgment is GRANTED.

BACKGROUND

The following facts are derived from the Defendants’ Rule 56.1 Statement of Material Facts ("Defs.’ 56.1," ECF No. 69-3), Plaintiffs’ Response to Defendants’ Rule 56.1 Statement of Material Facts and Additional Material Facts that Plaintiffs Contend are Not in Dispute ("Pls.’ 56.1," ECF No. 71-10), Defendants’ Response to Plaintiffs’ Rule 56.1 Statement of Additional Material Facts ("Defs.’ Reply 56.1," ECF No. 70-1), the parties’ declarations, and the parties’ exhibits, and are not in dispute, except where noted.

On November 18, 2016, Mrs. Nemes unintentionally severed the thumb on her left hand while using a crossbow manufactured by Barnett and marketed as the Barnett Lady Raptor FX ("Lady Raptor"). The Lady Raptor had been purchased at Dick's by Mr. Nemes for his wife, Mrs. Nemes. The question here is whether Defendants are liable for the harms Mrs. Nemes experienced on November 18, 2016 under several design defect theories (sounding in contract and tort) based upon the design of the Lady Raptor.

Prior to the accident, starting in or around June 2016, Mrs. Nemes—then 64 years old and a retired school secretary—took up the sport of target shooting with a crossbow. (Pls.’ 56.1 ¶¶ 1 & 4.) Mr. Nemes trained Mrs. Nemes how to use his crossbow, a different crossbow manufactured by Barnett and marketed as the Barnett Reverse Raptor ("Reverse Raptor"). (Id. ¶ 5.) Over the course of several months, Mrs. Nemes used the Reverse Raptor for target shooting on approximately 20 to 30 occasions and fired over 100 shots in total. (Id. ¶ 3.) During this time, Mr. Nemes showed Mrs. Nemes that the Reverse Raptor had a rail attached to the stock of the crossbow and below the track where the string travelled to propel the bolt (referred to by the parties, and herein, interchangeably as a "finger barrier," "finger reminder," and "finger guard"), and Mrs. Nemes appreciated the risk of having any body part in the flight track while using the Reverse Raptor. (Id. ¶¶ 6-8.)

After becoming acquainted with target shooting, Plaintiffs set out to purchase Mrs. Nemes her own crossbow. Towards this end, on October 10, 2016, Plaintiffs went to two sporting goods shops – Gander Mountain and Dick's. (Id. ¶¶ 9-11.) It was at Dick's that Mr. Nemes ultimately purchased the Lady Raptor for Mrs. Nemes because she liked the feel and weight of the crossbow and he had a positive impression of the manufacturer. (Id. ) Subsequently, Mrs. Nemes read the Lady Raptor owner's manual cover to cover, and

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testified that she read and understood all the warnings and instructions in the manual. (Id. ¶ 12.) Mrs. Nemes understood that she was supposed to keep the fingers of her gripping hand below the finger reminder and not in the way of the string path while she was firing the Lady Raptor, but believed that the finger reminder would under all circumstances prevent her finger from being in the way of the string. (Id. ¶¶ 13-14.) Over the next month, Mrs. Nemes shot the Lady Raptor somewhere between 250 to 300 times without any problems. (Id. ¶ 15.)

On the day of the accident, Mrs. Nemes was target shooting on her property with Mr. Nemes. (Id. ¶ 17.) Mrs. Nemes recalls that she was "free handing" the Lady Raptor, which is the same manner of shooting that she employed during previous practice with the Lady Raptor. (Id. ¶ 17 & 27.) Free-handing refers to the firing of a crossbow where the user grips the foregrip with one hand and pulls the trigger with the other hand. By contrast, "rest" or "bench" shooting involves the use of a bench or tripod device to support the crossbow instead of, or in addition to, the user's gripping hand. While "free handing" the Lady Raptor, Mrs. Nemes’ left hand was inside the foregrip and more towards "the front of the fore-grip." (Id. ¶ 27.) During the fateful shot, Mrs. Nemes believed that the thumb of her left hand (which was gripping the fore-grip) was below the finger reminder rail. (Id. ¶ 19.) It was not. Instead, as she squeezed the trigger, the bow string struck her left thumb, caused a significant laceration and nerve damage, and amputated part, or all, of her thumb. (Id. ¶ 20.)

This litigation largely revolves around certain design features of the Lady Raptor – chiefly the "finger reminder" or "finger guard." As mentioned, the finger reminder is a rail running across the stock and below the flight track. (Id. ¶ 13.) The Lady Raptor's finger reminder is approximately .513 inches wide at its narrowest point running across the foregrip, and is approximately .748 inches in its wider portions. (Defs.’ Reply 56.1 ¶ 37; Pls.’ Exhibit B (ECF No. 71-2) at Nemes-Barnett000211.) There is some disagreement as to the function of the finger reminder as Plaintiffs contend it is expected to, under all circumstances, prevent the finger from unintentionally rising into the path of the flight track (see, e.g. , Pls.’ 56.1 ¶ 34), whereas Defendants contend it is only supposed to provide tactile feedback to cause the user to be mindful of their finger placement while using the Lady Raptor (see, e.g. , Defs.’ Reply 56.1 ¶ 34).

As is the case with the vast majority of design defect litigation, the parties engaged in extensive expert discovery, produced reports to support their theories concerning the design of the Lady Raptor, and then filed Daubert motions challenging the reliability of their opponents’ expert. The Report of Plaintiffs’ expert Brian O'Donel (the "O'Donel Report") (ECF No. 71-5) concluded, among other things, that: (1) "the crossbow design exposed the user to the string motion hazard [and] created a dangerous condition that was a cause of [Mrs.] Nemes’ injury"; (2) "the injury to [Mrs.] Nemes was foreseeable to Barnett"; (3) "Barnett's failure to provide an adequate safeguard was a design defect, making the crossbow unreasonably dangerous, unsafe for its intended use, and was a cause of [Mrs.] Nemes’ injury"; (4) "[o]thers in industry recognize this hazard and provide means to protect people"; (5) "Barnett's failure to provide an adequate safeguard deprived [Mrs.] Nemes of the protection that others in the industry provided"; and (6) "[s]afer alternatives were feasible and available to Barnett and would not have defeated the utility of the product." (O'Donel Report at 18.)

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As relevant here, Defendants’ motion to preclude Plaintiffs’ proposed expert Brian O'Donel was granted in part and denied in part. In short, the Court held that O'Donel was precluded from testifying about a feasible alternative design to the Lady Raptor and only permitted him to opine as to the Lady Raptor posing a substantial likelihood of harm and causing Mrs. Nemes’ injury. See Nemes v. Dick's Sporting Goods, Inc. , No. 17-CV-1688 (NSR), 2019 WL 3982212, at *10 (S.D.N.Y. Aug. 23, 2019).

Now Defendants move for summary judgment arguing, among other things, that because Plaintiffs cannot present expert evidence as to the feasibility of an alternative design, they cannot satisfy their burden to set forth a prima facie strict products liability claim. (See Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment, ("Defs.’ Mem."), ECF No. 69.) Plaintiffs respond that, among other things, summary judgment is not warranted because they are capable of establishing the feasibility of an alternative design without expert evidence. (See Plaintiffs’ Memorandum of Law in Opposition to Motion for Summary Judgment ("Pls.’ Opp."), ECF No. 71-11.) Defendants further respond that Plaintiffs have failed to establish the technological and economic feasibility of an alternative design through non-expert evidence. (See Defendants’ Reply Memorandum in Further Support of Motion for Summary Judgment ("Defs.’ Reply Mem."), ECF No. 70.)

STANDARD OF REVIEW

A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of pointing to evidence in...