Firearms & Ballistics Expert Witness’ Testimony About the Unintentional Discharge Excluded
Posted on October 18, 2024 by Expert Witness Profiler
Plaintiff Michael Colwell alleged that a Sig Sauer P320, which he was issued in connection with his duties as a police officer in Troy, New York, discharged during a police training exercise even though Plaintiff never touched the trigger. Plaintiff testified that he put the gun in his holster during the exercise and was starting to move across his body to get his taser, or was “just about to get there,” when the gun discharged.
As a result, Colwell brought this diversity action against Defendant Sig Sauer, the manufacturer of a Sig Sauer P320 handgun which Plaintiff alleges discharged unintentionally, into Plaintiff’s thigh. Colwell asserted claims for strict products liability, negligence, breach of implied warranty of merchantability, breach of express warranty, and negligent and intentional infliction of emotional distress. His wife, Julia Colwell, asserted a claim for loss of consortium.
Defendants’ motions challenged the expert testimony of William Vigilante and James Tertin. The experts have opined that the lack of external safeties rendered the P320 defective because it is a single-action pistol with a short trigger pull, which makes it more likely to be actuated. Both experts have opined that the defective design was a cause of the unintentional discharge in this case.
General Background Regarding the P320
Tertin opined that the P320 had no external safeties. External safeties “help prevent unintended discharges by manually blocking the trigger from being pulled until the user decides they are ready to fire.” Competitors sell striker-fired handguns with external safeties, such as (1) thumb safeties and (2) tabbed trigger safeties.
Plaintiffs asserted that the failure to include a manual thumb safety and/or a tabbed trigger into the design of the P320 rendered the firearm defective and unreasonably dangerous.
Firearms & Ballistics Expert Witness
James Tertin is currently the director of research and development for Magnum Research, a firearms manufacturer based in Pillager, Minnesota. In that role, he is responsible for designing and developing new firearms for the company.
He has been a professional gunsmith since graduating in 1972 from the Gunsmithing School at Trinidad State College in Colorado; the oldest gunsmithing school in the United States. Over the past fifty years, he has been awarded seven firearm design patents.
Human Factors Engineering Expert Witness
William Vigilante graduated with a Doctoral of Philosophy and a Master’s of Science in Ergonomics (Human Factors) Psychology and a Bachelor of Science degree in Psychology (Cognitive track). He is also a Certified Professional Ergonomist by the Board of Certification in Professional Ergonomics. He has more than 25 years of experience in psychological and human factors research with a focus on human-machine interaction, control-display design, product design, hazard identification and mitigation, risk perception, situational awareness, perception-reaction time, and the design and testing of warning systems.
Discussion by the Court
William Vigilante, Jr.
Plaintiffs sought to present Vigilante’s testimony “that the P320’s lack of safety features was a proximate cause of Plaintiff’s unintended discharge.” Vigilante testified that “had Sig Sauer integrated a tab trigger safety into the design of the Sig P320, the subject unintentional discharge would most likely not have occurred and Michael Colwell would not have been injured.”
The Court held that Vigilante’s knowledge of this particular incident is severely limited. He did not personally inspect the holster or the pistol. He read Plaintiff’s testimony but did not speak with Plaintiff or anyone with direct knowledge about the incident.
The Court found that Vigilante’s causation opinion did not pass muster under Rule 702 because it is not “based on sufficient facts or data”; it is not “the product of reliable principles and methods” and it does not “reflect a reliable application of the principles and methods to the facts of the case.”
Plaintiffs have cited cases in which Vigilante’s proffered testimony had established a connection between the alleged design defect and the facts of the particular case. In one case, there was video footage of the incident, leading to an undisputed theory of how the pistol discharged. Here, however, there was no video footage, no explanation as to why Colwell’s pistol discharged, and no experimentation.
James Tertin
In forming his opinions, Tertin relied upon his inspection of the P320 pistol used by Plaintiff, his inspection of an exemplar P320, his review of several competitor pistols, and videos of other similar incidents.
During his deposition Tertin testified that he did not review any file materials in this matter and understood the incident to have occurred as Plaintiff described it. Tertin did not inspect the Plaintiff’s holster and did not have an opinion as to whether Plaintiff’s hands were fully off the pistol at the time it discharged or what conclusions the police reached regarding the incident.
Tertin acknowledged that he had no information about whether Plaintiff would have engaged a manual thumb safety in this instance if one had been available. To that end, there is nothing in the record to demonstrate that a manual safety would have been engaged if the P320 had one. According to the Court, without any evidence permitting an inference that a thumb safety would have been used, a finding that the lack of a thumb safety caused the accident is pure speculation.
Tertin’s analysis hinges on “practical function” that because a pistol with a tabbed trigger has “one more step for safety,” Plaintiff’s pistol would have been less likely to fire if it had a tabbed trigger. Nevertheless, Tertin acknowledged that guns with tabbed triggers can discharge unintentionally too. It is worth noting that Tertin did not explain how a tabbed trigger would have prevented the accident if a foreign object, such as an article of clothing, had been caught in the trigger.
Held
The Court granted Defendant’s motions in limine challenging the opinions of William Vigilante and James Tertin.
Key Takeaways:
- Vigilante’s causation opinion was excluded because of his severely limited knowledge of the incident.
- Tertin’s conclusion that the lack of a thumb safety caused the accident is not supported by evidence permitting an inference that a thumb safety would have been used.
Case Details:
| Case Caption: | Colwell Et Al V. Sig Sauer, Inc. |
| Docket Number: | 1:21cv1200 |
| Court: | United States District Court, New York Northern |
| Order Date: | September 17, 2024 |
