Pedicone v. Thompson/Ctr. Arms Co., C. A. N17C-11-264 WCC

CourtSuperior Court of Delaware
Writing for the CourtWILLIAM C. CARPENTER, JR. JUDGE
Docket NumberC. A. N17C-11-264 WCC
Decision Date04 November 2022



C. A. No. N17C-11-264 WCC

Superior Court of Delaware

November 4, 2022

Submitted: July 7, 2022

Joseph J. Rhoades, Esquire and Stephen T. Morrow, Esquire, Rhoades & Morrow LLC, Michael A. Trunk, Esquire, and Thomas E. Bosworth, Esquire, KLINE & SPECTOR, P.C., Attorneys for Plaintiffs.

Timothy Jay Houseal, Esquire and Jennifer M. Kinkus, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Anthony M. Pisciotti, Esquire and Danny C. Lallis, Esquire, PISCIOTTI LALLIS ERDREICH, Attorneys for Defendants.




Before the Court is Plaintiffs' Motion for a New Trial. For the reasons set forth in this Opinion, Plaintiffs' Motion is DENIED.

I. Factual & Procedural Background

On or about January 9, 2016, Mr. Pedicone was injured while operating his Thompson/Center Contender pistol ("Contender"). The pistol discharged into his leg, resulting in serious injury and amputation.[1] On November 29, 2017, Mr. and Mrs. Pedicone, ("Plaintiffs") filed suit against Thompson/Center Arms Co. and Smith and Wesson Co. ("Defendants") alleging that Defendants negligently designed the Contender.[2] The Court held a jury trial from March 21, 2022, until March 29, 2022.[3] The jury returned a verdict on March 30, 2022, finding that the Defendants were not negligent with respect to the design of the Contender.[4] On April 13, 2022, Plaintiffs submitted a Rule 59 Motion for a New Trial.[5]

II. Standard of Review

Pursuant to Delaware Superior Court Civil Rule 59, a new trial may be granted for all, or part of the issues decided at trial.[6] In considering a motion for a new trial, the Court should give the jury's verdict "enormous deference,"[7] and "should not set


aside a verdict … unless, on review of all the evidence, [it] preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result."[8]

A verdict should not be disrupted unless it is "manifestly and palpably against the weight of the evidence,"[9] the jury disregarded rules of applicable law, or the verdict was "tainted by legal error during trial."[10]

III. Discussion

In support of their argument for a new trial, the Plaintiffs claim that the Court: (1) excluded evidence of an alternative feasible design;[11] (2) improperly questioned an expert witness;[12] (3) improperly instructed the jury;[13] and (4) failed to discharge Juror No. 9, who was represented by the Defendants' law firm in a different matter.[14]Before addressing the arguments made by Plaintiffs, a couple of general comments are in order. This was a terrible and tragic accident that caused significant injury to Mr. Pedicone. While it is clear that Mr. Pedicone is not seeking sympathy, the Court is sure it was difficult for everyone in the courtroom to totally appreciate the effect this incident has had on his life. Perhaps even more amazing is how Mr. Pedicone


has not let this incident hamper his joy for living, including continuing to hunt, a sport he clearly loves. The Court applauds his determination and tenacity.

That said, this is a case that the Court is confident all counsel knew would be difficult to prove. Even in the best of circumstances it would be difficult for a jury to discount the clear negligence of Mr. Pedicone, even if they contributed some liability to the gun manufacturer. The facts of this case simply would make any other conclusion difficult. The Court appreciates that Mr. Pedicone has not obtained the results desired, but the results should not have been a surprise or unexpected. The Court will now consider the arguments asserted in Plaintiffs' Motion for a New Trial.

A. Alternative Feasible Design

First, Plaintiffs contend the Court improperly excluded evidence of the Thompson/Center G2 firearm (G2) which was manufactured by Defendants nearly 35 years after the Contender weapon which is the subject of this litigation. Plaintiffs argue they should have been allowed to introduce evidence regarding the operation of the G2 firearm as it would have demonstrated that an alternative design was available, and that design would have made the Contender weapon safer.[15] In the Court's pretrial ruling, it stated:

"The fact that a subsequently produced weapon with more modern and up-to-date features has been manufactured by Defendants does not
equate to the initial weapon being defectively designed. Further, the marketing of the new weapon as the next generation of the Contender does not provide a basis for its introduction. Therefore, the Court rules that the introduction of the weapon simply to establish Defendants have corrected concerns of the original Contender is not admissible. It is possible that the fact that a new firearm similar to the Contender has been produced may be utilized on cross-examination to attack knowledge or credibility, but those decisions will have to wait for trial."[16]

The Court finds this ruling to be correct. First, despite Plaintiffs' counsels' assertions otherwise, Dr. Knox was given significant latitude over days to testify about the operation of the Contender weapon, what would have caused the weapon to unintentionally discharge and why it occurred in this case. Dr. Knox was never prevented from offering testimony about designs that were available and utilized when Mr. Pedicone's gun was manufactured in the 1970s. The Court's ruling simply prevented Plaintiffs from asserting that because Defendants later manufactured a weapon that corrected the concerns raised by Dr. Knox, he should have been allowed to testify about these advances which he was asserting could have been considered decades before. Despite the obvious advancements in technology and the knowledge gained from decades of manufacturing weapons, a weapon manufactured in the 70s is not defectively designed because decades later a new design is implemented in a more modern firearm. The Court is sure that significant changes have occurred in manufacturing weapons over the two hundred years of our country's history which


would have made an older weapon safer. That alone, however, does not make the older weapon defective, and allowing the testimony suggested by Plaintiffs would have confused the jury and allowed an unfounded assertion to be introduced into the trial issues. The Court finds the testimony as suggested by Plaintiffs irrelevant and it would have been inappropriate to allow it into evidence.

It is also clear to the Court that if properly handled, the Contender firearm would have been safe to use. Unfortunately, Mr. Pedicone failed to exercise reasonable care in the handling of this older firearm which led to this accident. This is particularly true in this case as the weapon was purchased at a gun show from a friend, the gun had been altered by its previous owners and Mr. Pedicone, and those modifications to the weapon made it more difficult and less safe to use. Here the jury was given significant evidence by both parties' experts concerning the manufacturing of this weapon. The jury's decision to find the weapon was not defectively manufactured is clearly supported by the evidence. As such, the Motion for New Trial on this ground is denied.

B. Court's Questions

Next, Plaintiffs claim the Court improperly questioned Dr. Michael Knox during Plaintiffs' direct examination.[17] The Court's questioning occurred while Plaintiffs' counsel was examining Dr. Knox on the procedural steps necessary to


disengage the weapon once it was set to fire.[18] The Court asked Dr. Knox whether the engagement of the safety was the first step indicated in the weapon's manual. Plaintiffs argue that the Court's mid-examination questions impaired Dr. Knox's credibility and derailed Plaintiffs' line of questioning.[19]

In response, Defendants assert that the Court's comments were proper and were simply clarifying questions - a practice employed by the Court for witnesses of both parties.[20] Further, Defendants argue that the Court maintained neutrality when asking clarifying questions and kept questioning to a minimum throughout the trial.[21] Defendants argue that Plaintiffs failed to object to the Court's questioning and that there is no evidence that the Court's question regarding the manual safety demonstrated a lack of impartiality or prejudice.[22]

It is well settled under Delaware law that a trial judge is permitted to interrupt a line of questioning on direct or cross examination of a witness to ask clarification questions.[23] When doing so, a trial judge must exercise self-restraint and "preserve an atmosphere of impartiality when questioning witnesses."[24]


Here, the Plaintiffs' expert, Dr. Knox, was testifying what was set forth in the weapon's manual as to the proper operating steps and what happens when the user decides not to fire the Contender after the hammer block is engaged.[25]

COUNSEL: Doctor, the entire process we just described there, what is happening with the gun during that process when you release the --well, as it starts out. If you decide not to fire after the hammer has been cocked, then it takes you through this step, what is the process that's actually happening with this gun that's being

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