Simpson v. Gen. Dynamics Ordnance & Tactical Sys.-Simunition Operations, Inc.

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: THERESA L. SPRINGMANN, CHIEF JUDGE
• Citation: Simpson v. Gen. Dynamics Ordnance & Tactical Sys.-Simunition Operations, Inc., 429 F.Supp.3d 566 (N.D. Ind. 2019)
• Decision Date: 19 December 2019
• Docket Number: CAUSE NO.: 1:14-CV-345-TLS
• Parties: John C. SIMPSON and Lori Simpson, Plaintiffs, v. GENERAL DYNAMICS ORDNANCE AND TACTICAL SYSTEMS–SIMUNITION OPERATIONS, INC., Defendant.

429 F.Supp.3d 566

John C. SIMPSON and Lori Simpson, Plaintiffs,

v.GENERAL DYNAMICS ORDNANCE AND TACTICAL SYSTEMS–SIMUNITION OPERATIONS, INC., Defendant.

CAUSE NO.: 1:14-CV-345-TLS

United States District Court, N.D. Indiana, Fort Wayne Division, Fort Wayne Division.

Signed December 19, 2019

Alex S. Schreiber, John C. Theisen, Nathaniel O. Hubley, Theisen & Associates LLC, Fort Wayne, IN, for Plaintiffs.

Jason A. Scheele, Andrew L. Palmison, Ashley M. Gilbert-Johnson, Rothberg Logan & Warsco LLP, Fort Wayne, IN, for Defendant.

OPINION AND ORDER

THERESA L. SPRINGMANN, CHIEF JUDGE

This matter is before the Court on a Motion for Summary Judgment [ECF No. 34] and on a Motion to Strike [ECF No. 43], both filed by Defendant General Dynamics Ordnance and Tactical Systems–Simunition Operations, Inc. Plaintiffs John C. Simpson and Lori Simpson bring this lawsuit under the Indiana Products Liability Act (IPLA) to recover for injuries Mr. Simpson sustained to his elbow and arm when he was hit by a Simunition 9mm marking cartridge during a training exercise. Plaintiffs allege that the Simunition round was in a defective condition unreasonably dangerous because of a manufacturing defect, a design defect, and a failure to warn. In the motion for summary judgment, Defendant argues that the opinion of Plaintiffs' expert witness does not support any of these theories under the IPLA. Finding that Plaintiffs have offered evidence sufficient to create a genuine issue of material fact for trial based on theories of manufacturing defect and failure to warn, the Court GRANTS in part and DENIES in part the Motion for Summary Judgment. The Court also DENIES the Motion to Strike.

PROCEDURAL BACKGROUND

Plaintiffs filed a Complaint [ECF No. 3] in the Allen County, Indiana, Superior Court, alleging claims of strict product liability under the Indiana Product Liability Act (Count I), negligence (Count II), and loss of consortium (Count III). Defendant removed the case to this Court based on diversity jurisdiction, 28 U.S.C. §§ 1332, 1441 [ECF No. 1], and filed an Answer [ECF No. 5]. After discovery, defendant then filed the instant Motion for Summary Judgment [ECF No. 34], Plaintiffs filed a Brief in Opposition [ECF No. 38], and Defendant filed a Reply in Support [ECF No. 42]. Defendant also filed a Motion to Strike [ECF No. 43], to which Plaintiffs filed a Response [ECF No. 45]. Defendant has not filed a reply in support of the Motion to Strike, and the time to do so has passed. Following a June 16, 2019 telephonic status conference, the parties filed supplements to the briefing on summary judgment [ECF Nos. 52, 53].

MOTION TO STRIKE

Defendant asks the Court to strike the affidavit of Plaintiffs' expert, John Nixon [ECF No. 38-9], which was filed in support of Plaintiffs' summary judgment response brief. Defendant argues that the affidavit constitutes a new expert opinion that is untimely because it was filed more than three months after the close of expert discovery and after Defendant filed its motion for summary judgment. Expert witnesses must prepare and sign a written report containing a complete statement of all opinions to be expressed. Fed. R. Civ. P. 26(a)(2)(B). Any additions or changes to the report necessary for the complete disclosure of the expert opinion must take place before the deadline for pretrial disclosures under Rule 26(a)(3). Fed. R. Civ. P. 26(e)(2). However, the duty to supplement cannot be used to disclose an entirely new expert opinion. Vill. of Sauk Vill. v. Roadway Express, Inc. , No. 15-CV-9183, 2017 WL 378424, at *2 (N.D. Ill. Jan. 25, 2017). If a party does not timely file the report, the court may exclude the expert from testifying at trial on the matters the party was required to disclose. Fed. R. Civ. P. 37(c)(1) ; NutraSweet Co. v. X-L Eng'g Co. , 227 F.3d 776, 785 (7th Cir. 2000). The sanction of exclusion is " ‘automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless.’ " NutraSweet , 227 F.3d at 785–86 (quoting Finley v. Marathon Oil Co. , 75 F.3d 1225, 1230 (7th Cir. 1996) ). Four factors guide a court's analysis of whether to exclude the testimony: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." David v. Caterpillar, Inc. , 324 F.3d 851, 857 (7th Cir. 2003).

Mr. Nixon's affidavit contains new opinions regarding products that are readily available on the market and that would not cause injury. Pls.' Br. Opp'n to Summ. J., Ex. 8 (Nixon Aff.), ¶ 4, ECF No. 38-9. Defendant contends that Mr. Nixon had this information at the time of his original and rebuttal opinions and argues that it is prejudiced by the disclosure after the close of discovery. Plaintiffs respond that any prejudice was cured by Defendant sufficiently rebutting the new opinion in its summary judgment reply brief. Although the affidavit contains an untimely, new opinion, the Court finds no prejudice because Defendant persuasively argues in its summary judgment reply brief that Mr. Nixon's new opinion does not save Plaintiffs' design defect claim. The Court denies the motion to strike.

LEGAL STANDARD

"The 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 Supreme Court has explained that "the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party has properly supported his motion, the burden shifts to the non-moving party to come forward with specific facts showing that there is a genuine issue for trial." Spierer v. Rossman , 798 F.3d 502, 507 (7th Cir. 2015). Within this context, the Court must construe all facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Frakes v. Peoria Sch. Dist. No. 150 , 872 F.3d 545, 550 (7th Cir. 2017).

FACTUAL BACKGROUND

A. The Simunition 9mm Marking Cartridges

Simunition 9mm FX marking cartridges are manufactured by Defendant General Dynamics Ordnance and Tactical Systems–Simunition Operations, Inc. See Def.'s Mot. Summ. J., Ex. B (Nixon Report), pp. 1, 16–17, ECF No. 34-2. Simunition rounds are marking cartridges that look similar to bullets and leave a colored mark on the target. Def.'s Mot. Summ. J., Ex. C (Simpson Dep.), 82:5–83:13, ECF No. 34-3. The Simunition rounds are not fired from a regular weapon but rather from a blue replica 9mm Glock. Id. 27:16–24.

The Simunition "Scenario Instructor & Safety Certification Course: Student Guide" contains a "Requirements for Safety and Use" section, which provides, in relevant part:

If projectiles are to be potentially shot at human targets, Full face, throat and groin protection for all persons in the safe zone is MANDATORY.... Full body covering to include the use of gloves and hard athletic-cup style groin protection are HIGHLY RECOMMENDED. Shots to exposed skin are STRONGLY DISCOURAGED. Hits may sting causing welts, scrapes or bruises, or breaking of the skin.

Pls.' Br. Opp'n Summ. J., Ex. 2 (Training Manual), p. 3, ECF No. 38-3. Defendant provides a separate set of warnings and instructions with its Simunition marking cartridges, which provide, in pertinent part:

Lethality Non-lethal bruises, welts or scraps

Mandatory safety equipment Head, throat and groin protection

• Simunition recommends a minimum 1-ft. (30 cm) stand-off distance when firing 9mm ... FX Marking Cartridges at protected personnel

• Users must wear approved FX protective gear (head, throat and groin protection). Full-body covering recommended

Nixon Report 17, Ex. D (Simunition Information Sheet).

B. Mr. Simpson's Background and Injury

At the time of briefing, Mr. Simpson was 49 years old and a twenty-year veteran of the United States Marshals Service, working in the Northern District of Indiana in Fort Wayne, Indiana, since 2007. Def.'s Mot. Summ. J., Ex. C (Simpson Dep.) 6:3–4, 14:18–15:17, ECF No. 34-3. When Mr. Simpson became a Deputy Marshal in 2002, he received training that included scenarios in which Simunition rounds were used. Id. 18:7–11, 19:15–23.

During those training scenarios, Mr. Simpson wore protective gear that protected the head, throat, and groin areas of his body, and he wore a parka jacket to cover his arms and possibly a piece of something to cover his chest. Id. 20:17–21:5. During these training scenarios, Mr. Simpson was hit with Simunition rounds more than fifty times, including hits to the arm. Id. 55:22–56:4, 56:17–2. He described the hits as hurting a little more than getting hit with a paintball and sometimes leaving a welt on his body. Id. 21:6–16, 56:17–57:2. However, he never experienced anything more serious than that. Id. 57:3–6. He also understood that getting hit in the eye, face, throat, or groin with a Simunition round could cause serious injury. Id. 73:12–74:15. Since transferring to Fort Wayne in 2007, Mr. Simpson has had additional training as a Deputy Marshal during which Simunition rounds were used. Id. 40:14–17, 43:18–44:25. At the time of the October 1, 2012 incident that is the subject of this lawsuit, Mr. Simpson was in Chicago for what he described as "HFRA" or "high intense fugitive apprehension training." Id. 40:20–42:15.

On October 1, 2012, the first day of training, Mr. Simpson and the other U.S. Marshals were using Simunition rounds and blue Glock replica guns provided by U.S. Marshals Service. Id. 78:9–14. The Glock 17 model pistol used by Mr. Simpson is not made by Defendant; it is made by Glock. Def.'s Mot. Summ. J., Ex. A (Aff. de...