In a recent Eighth Circuit case, Lanny O’Neal was killed in 2008 when a 1971 Remington Model 700 .243 caliber-bolt action rifle unexpectedly discharged. His wife, Carol O’Neal, after two attorneys had declined to represent her, had the rifle destroyed because it reminded her of his death.
Several months later, Carol saw a news documentary on a trigger defect in Model 700 rifles which prompted her to file suit in 2011. A South Dakota district court granted summary judgment to Remington on the grounds that O'Neal could not show whether the alleged defect existed at the time of manufacture or whether the defect resulted from a subsequent alteration or modification to the rifle. On appeal, the Eighth Circuit reversed, holding that O’Neal presented sufficient circumstantial evidence to show the alleged defect was not the result of a subsequent alteration or modification.
Remington used a trigger mechanism in its Model 700 rifles called the Walker trigger. Remington knew the Walker trigger could cause Model 700 rifles to fire a round when the safety lever is released from the safe position to the fire position, without the trigger being pulled. This defect resulted from the manner in which two components of the trigger mechanism – the sear and the connector – interacted with one another, coupled with the lack of a physical attachment between the connector and the trigger itself. Remington knew of the Walker trigger problem as early as 1979, but decided against recalling the Model 700 rifles.
In addition to presenting evidence that the subject rifle was equipped with a Walker trigger mechanism at the time of manufacture, O’Neal presented substantial evidence that the trigger mechanism was not modified or altered from the mid-1980s (the date Lanny’s stepfather bought the gun) to the date of the hunting accident. However, there was a gap of over a decade of unaccounted time from 1971 to the date of purchase, which was at the heart of the dispute.
Remington argued that the destruction of the rifle precluded O'Neal from establishing that the trigger mechanism was the original Remington trigger mechanism, rather than an after-market trigger made by another manufacturer.
The Eighth Circuit (in a 2-1 decision) disagreed noting that there was no evidence the subject rifle had a history of inadvertent discharges that might spur an owner to replace the trigger mechanism. The Court majority reasoned that the fact that “the subject rifle was used many times without incident from the mid-1980s through November 2008, and then suddenly inadvertently discharged, is more consistent with the unpredictable manifestation of the inherent design defect in the Walker trigger, than it is with the rifle being equipped with a replacement trigger designed to eliminate the possibility of an inadvertent discharge.”
Further, the hunting accident was investigated by the state, local and federal authorities which included an inspection of the rifle and a description of additions to the rifle made by other manufacturers. An aftermarket trigger mechanism was not included. The court stated that the absence of such information supports the reasonable inference that the trigger mechanism in the subject rifle was the original Remington Walker trigger.
Accordingly, the Eighth Circuit reversed the trial court’s summary judgment ruling in favor of Remington, and remanded the case for trial, concluding that O'Neal presented sufficient circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification.
The Eight Circuit’s opinion should serve as a reminder that lack of the product does not signal an automatic win for the defense. If Plaintiff can provide circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification, plaintiff will be able to avoid summary judgment.
For attorneys and clients alike, the discovery process can be a daunting aspect of litigation. Rule 26 of the Federal Rules of Civil Procedure generally governs the discovery process. Effective December 1, 2015, and absent congressional intervention, the proposed amendments to Rule 26 take effect. The proposed amendments seek to make the discovery process more efficient by better defining the scope of discovery and encouraging cooperation as well as better planning between the parties.
Scope of Discovery
Currently, Rule 26 allows discovery of information relevant to a party’s claim or defense so long as the information is nonprivileged. Importantly, “relevant information” need not be admissible at the time of trial if the information sought is “reasonably calculated” to lead to discovery of admissible evidence. The court, under the current rule, can compel discovery of any relevant “subject matter” in the lawsuit. This standard can lead to excessive and burdensome discovery requests and subsequent motion practice if one side refuses to cooperate.
The proposed amendment attempts to address these problems. Under the proposed amendment, the scope of discovery would still concern nonprivileged, information relevant to a party’s claim or defense. The proposed rule, however, deletes the clause surrounding discovery of any relevant “subject matter” and deletes the “reasonably calculated” language. Additionally, the scope of discovery could be limited by the concept of proportionality. “Proportionality” of the discovery would be determined by considering: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the resources of the parties; (5) the importance of the sought after discovery in resolving the issues; and (6) whether burden/expense of the sought after discovery outweighs the benefit of the discovery.
Protective Orders and Cost Shifting
The proposed amendment to Rule 26 amends the provision concerning protective orders, to include an allocation of expenses for disclosure or discovery. Fed. R. Civ. P. 26(c)(1)(B).
Early Requests for Production of Documents
The proposed amendment to Rule 26 adds a provision which permits a party to deliver requests for production of documents to another party more than 21 days after that party is served with a summons and complaint. Fed. R. Civ. P. 26(d)(2). However, the request for production of documents is considered “served” at the first conference between the parties at the outset of litigation as required under Rule 26(f). The Advisory Committee notes indicate that the purpose of permitting early delivery of document requests is to help facilitate more meaningful and focused discussions about the discovery process during the parties planning conference in which the parties confer with one another about discovery issues.
Sequence of Discovery and the Discovery Plan
Fed. R. Civ. P. 26(d)(3) is amended to permit parties to stipulate to the sequence in which they conduct discovery. Fed. R. Civ. P. 26(f)(3) requires that a discovery plan include the parties’ proposal on how to deal with electronically stored information; claims of privilege pertaining to discoverable information; and the potential application of Federal Rules of Evidence 502 (discussing limitations on waiver of privileged information).
Whether the proposed amendments will achieve their intended goal will be seen in future litigation. However, the proposed amendments are a step in the right direction to encourage efficient discovery between parties in litigation.
The Supreme Court’s Jurisdictional Stretch in Resolving the Evidence Needed to Support a CAFA RemovalJanuary 6, 2015
In Dart Cherokee Basin Operating Co. v. Owens, the United States Supreme Court clarified exactly how much evidentiary proof defendants must submit in support of an adequate amount in controversy when removing cases to federal court under the Class Action Fairness Act (“CAFA”). Writing for a 5-4 majority of the Court, Justice Ginsburg concluded that the removal statute, 28 U.S.C. § 1446(a), requires only a “short and plain statement of the grounds for removal” and, as such, a defendant need not include evidence of the amount in controversy in a notice of removal. “[A]s specified in §1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.”
In so holding, the majority reversed the United States District Court for the District of Kansas’s remand decision, choosing to reach the merits of the dispute despite the fact that the United States Court of Appeals for the Tenth Circuit had denied both review and rehearing of the lower court’s decision. The Supreme Court rejected the Tenth Circuit’s view that there was a “presumption” against the removability of a case to federal court. The four dissenting Justices (Scalia, joined by Kennedy, Kagan, and Thomas) had no quarrel with either the majority’s view of the quantum of evidence needed to support the amount in controversy in the Notice of Removal, or the purported existence of a “presumption” against removal. But they strongly disagreed with the majority over whether the case was properly before the Supreme Court for review.
In Dart Cherokee, defendants removed a putative class action alleging underpayment of royalties on oil and gas leases to federal court under CAFA. Plaintiff moved to remand the matter back to Kansas state court, arguing that defendants had not supported the jurisdictional amount in controversy with adequate evidentiary proof. In response, defendants submitted the declaration of an executive of the company in which they set forth a detailed calculation of the purported damages, which, by the executive’s calculation, amounted to more than $11 million. Despite this declaration, the district court remanded the case to state court, finding that defendants had failed to meet their burden of establishing an appropriate amount in controversy in the notice of removal itself. Invoking CAFA’s discretionary right to appeal remand orders, 28 U.S.C. § 1453(c)(1), defendants petitioned the Tenth Circuit for permission to appeal. The Tenth Circuit denied review and later went on to deny defendants’ petition for full en banc review.
Following the Tenth Circuit’s rejection of their petitions, defendants petitioned for certiorari in the United States Supreme Court, citing a federal circuit split as to whether a defendant must provide evidentiary support for all jurisdictional allegations set forth in a notice of removal, including the amount in controversy. Neither the certiorari briefing nor any of the parties’ merits briefs in Dart Cherokee raised the issue of whether the Court actually had jurisdiction to resolve this dispute in light of the fact that the Tenth Circuit had not considered any issue on appeal. Rather, this jurisdictional issue was raised only in the amicus brief of Public Citizen, which advocated for the Supreme Court’s dismissal of the case on the grounds that the district court’s remand order had never technically been “in” the court of appeals, thus divesting the Supreme Court of jurisdiction over the matter.
In a scathing dissent, Justice Scalia wrote that the Court never should have reached the merits of whether a defendant must submit evidence to support the jurisdictional amount in controversy when a class action is removed, because the sole question properly before the Court was whether the Tenth Circuit abused its discretion in denying defendants’ requests to appeal the district court’s remand order. Thus, “the responsible course would have been to confess error and to dismiss the case as improvidently granted.” Absent any legal findings from the Tenth Circuit, the dissent found no basis to conclude that the appellate court had abused its discretion in denying review of the remand order. In particular, the dissent took issue with the majority’s characterization of the Tenth Circuit’s reasons for this denial, rebuking the majority for making assumptions not supported by the record. (Justice Thomas would have gone one step further, arguing separately that lacking a “case or controversy” that was resolved by Tenth Circuit, the Supreme Court had no jurisdiction to entertain even this narrowly-defined issue.)
Conclusion: The Court’s ruling in Dart Cherokee contains both good and bad news. The majority’s holding that defendants need not include evidentiary support for the alleged amount in controversy in a notice of removal under CAFA certainly is a boon for litigants defending mass and class actions in the state courts, and appears to be a logical and proper interpretation of the law of removal of actions under CAFA. On the other hand, the decision may have caused collateral damage to the law of judicial review in the process. At the very least, one would expect the Court to confront potential jurisdictional obstacles in the first instance, rather than letting its views on the merits guide an after-the-fact jurisdictional analysis. Here, the majority seemingly put the proverbial cart before the horse in justifying jurisdiction based on its feelings about the merits of the case, and, in so doing, created needless uncertainty for litigants in future cases where, as here, an intermediate court denies review of an otherwise discretionary appeal. Only time will tell whether this jurisdictional analysis – or lack thereof – becomes the standard by which future petitions for certiorari are evaluated or whether the Court takes the dissent’s reasoned advice and dismisses such petitions when latent errors are discovered.
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