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Moore v. Remington Arms Co.





APPEAL from the Circuit Court of Macon County; the Hon. JOHN L. DAVIS, Judge, presiding. MR. JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

On June 18, 1978, plaintiff, Delores Moore, attended a skeet-shooting competition at Chanute Air Force base in Rantoul, at which she used her Remington Model 1100 shotgun. After shooting approximately 25 shotgun shells, Moore loaded her gun with a blue Remington shell; upon firing at the next target, the gun exploded in her hands, causing severe injury to her left thumb and hand.

This suit against Remington Arms Company, Inc. (Remington), the manufacturer of the gun and shotgun shell, and against Joe Lewis, d/b/a Lewis Reloader Supply (Lewis), the retail seller of the gun, followed. The suit was grounded in strict liability. The third amended complaint, upon which the case was tried, alleged (1) that the gun was defectively designed (against Remington in count I and against Lewis in count III); (2) that the gun was defectively manufactured out of defective metal (against Remington in count II and against Lewis in count IV); and (3) that the shotgun shell was defectively manufactured (count V against Remington). Plaintiff sought compensatory damages based on these allegations. In count VI of her complaint, plaintiff sought punitive damages from Remington based upon its knowledge of prior similar explosions and thus its prior knowledge of the defective nature of the shotgun. The jury returned verdicts in favor of plaintiff and against Remington, awarding plaintiff $161,288.79 in compensatory damages and $85,000 in punitive damages. The jury absolved Lewis of liability.

The main thrust of this appeal by Remington attacks the punitive damages award and the trial court's related evidentiary rulings. Remington also challenges the awarding of compensatory damages but not the amount awarded.

Plaintiff, her husband James Moore, and the referee were present when the gun exploded, and they testified at trial. All three are experienced marksmen and gun owners. James Moore purchased the Model 1100 Remington shotgun for plaintiff on June 17, 1977, from defendant Lewis. At that time the gun was new and appeared to James Moore to be a standard Model 1100. The gun was used only by the Moores and exclusively for skeet shooting between its purchase and the explosion. Mr. Moore regularly cleaned and maintained the gun; when he cleaned the gun earlier in the week of its explosion he noticed nothing irregular about it.

On June 18, 1978, plaintiff shot 25 targets, or one series or round, using red reloaded Winchester shells. That particular competition involved shooting at two targets consecutively that were thrown from different "houses." At the start of her second round plaintiff shot at the first target but the second target came out of the house broken. The rules of the game require that the referee give the marksman a replacement shell. Plaintiff and James Moore testified that the referee, Alan Barber, provided plaintiff with a blue Remington RXP shell. Barber could not remember the color of the shell he gave plaintiff but testified that the gun exploded when she fired it using the replacement shell. Barber was an arm's length away from plaintiff when she fired the gun, and it exploded into pieces.

Plaintiff said that her husband was reloading only red-colored shells at that time and that on the date of the explosion she had shot only red-colored Winchester shells. Referee Barber stated that the shell that he gave plaintiff had been taken by him from the vault of the gun club sponsoring the competition. Barber was an official of the gun club and testified that the vault contained only factory-loaded shells and no "reloads." He stated that the gun club was not allowed to sell or give out reloaded shells. Barber testified that at that time the gun club bought their shells from Lewis.

Shotgun shells purchased from manufacturers are called factory-loaded shells and may be fired without alteration; these shells have new cases. After a shell is fired, the shell case may be "reloaded." Much of the factual conflict in this case revolves around the nature of the shotgun shell in the gun when the accident occurred. Plaintiff's contention, as evidenced by the foregoing facts, was that she used a factory-loaded blue Remington shotgun shell. Remington's defense centered on the argument that the shell in the gun was an improperly reloaded shell and that the improper assembly of the shell by an unknown individual (either one of the Moores or the gun club), not the defective nature of the gun or shell, caused the explosion.

With the exception of the type of shell used, the events of the incident itself were undisputed by Remington. The controversy over whether the shotgun shell was a factory load or a reloaded shell drew an opinion from almost every witness. The shell fragment, purportedly from the shell that was in the gun at the time of the explosion, was introduced into evidence as plaintiff's exhibit No. 6. For comparison purposes, a factory-loaded shell was introduced as plaintiff's exhibit No. 7. Remington introduced testimony that the shell in the gun when the gun exploded was a reload.

Plaintiff's Expert Witness

Dr. David Levinson, plaintiff's expert witness, is a professor of metallurgy in the department of metals engineering at the University of Illinois, Chicago Circle Campus, and has a Ph.D in metallurgical engineering. Levinson took samples from the gun metal for a metallographic analysis; he photographed samples of the gun metal with a scanning electron microscope and performed hardness tests on it.

According to Levinson, the Moore gun barrel was made of a "free-machining" steel also commonly referred to as "resulphurized" steel, which is similar to "AISI 1140" steel. A free-machining steel is one alloyed with substances such as manganese or sulphur or sometimes lead to make it easier to handle in the manufacturing process. These substances are referred to as inclusions and are found in the metal; in general, inclusions appear as very small cracks, not visible to the naked eye but visible under a scanning electron microscope. Inclusions are deliberately present in the steel and are common to free-machining or resulphurized steels. Levinson stated that inclusions frequently are sites for the inception of cracks and that cracks may grow away from an inclusion. Upon examining the Moore barrel, Levinson found both inclusions and cracks.

In Levinson's opinion, AISI 1140, the metal used in the Moore barrel, is a relatively inexpensive steel and desirable from the standpoint of the manufacturer because, as a free-machining steel, it finishes easily. Levinson stated that he did not think that it was a good material from which to make shotgun barrels, however, because of its susceptibility to the initiation and growth of cracks at the sites of elongated manganese sulfide inclusions.

According to Levinson it is possible for not only the inclusions but the cracks to be present prior to the gun's leaving the hands of the manufacturer. Levinson stated that the cracks could result from proof testing which is done to the gun barrel by the manufacturer. A proof test is a test in which the barrel is subjected to a propellant charge that produces a pressure greater than normal. Levinson stated that the proof test performed by Remington on the guns will take one of three results: (1) A totally defective barrel with very large inclusions will break during proof testing; (2) a high quality gun barrel that is essentially free of inclusions or that has small and well distributed inclusions will be unaffected by the proof test; (3) an intermediate range of barrel that has elongated inclusions will not break during the proof testing, but the proof testing will make the gun more dangerous for subsequent use.

Levinson stated that the concentration of inclusions in free-machining steel varies among individual pieces cut. As a result, not all barrels made of 1140 free-machining steel will eventually explode; only guns that are made from a batch of steel with a higher than average concentration of inclusions or that have longer inclusions near the firing chamber are subject to that danger. Thus one barrel might be defective but the next one adequate.

In discussing the explosion of a defective barrel, Levinson stated that the cracks in the barrel would grow over a period of time to the point where the next normal stress or factory load fired from the barrel would cause the barrel to explode.

Levinson compared the steel used in the Moore barrel with a steel called chrome molybdenum steel, also referred to as 4140. Levinson said that chrome molybdenum steel is almost free of inclusions and is not a free-machining steel. Levinson stated that he compared 4140 to the steel in the Moore gun because it is frequently cited as being an appropriate steel for firearms and is often used in their manufacture. Levinson testified that in his opinion resulphurized steel is a bad choice of metal for shotgun barrels and concluded that the Moore gun was unreasonably dangerous when it was manufactured and that the gun failed due to a metallurgical design mistake.

Remington Committee Members

Robert Balaska, a design engineer for Remington, testified that he examined the Moore gun as part of a committee at Remington that looks at guns sent to the company to determine why they have failed. Balaska stated that in the preceding three or four months he had examined six to eight guns that looked like the Moore gun. Balaska knew of other situations where guns had exploded and injured persons but stated that the explosions were not similar to the Moore explosion. The conclusion of the committee was that the cause of the Moore gun explosion was a high pressure load round or defective ammunition. Balaska admitted that the report did not specifically mention hand-reloaded shells to be the cause.

James Stekl, another committee member, was permitted to testify over Remington's objection under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Stekl was supervisor of product services of the firearms for Remington and handled customers' complaints about firearms. Stekl testified that the committee reports stated that the gun damage was caused by defective ammunition. Stekl stated that if it were determined that the shell was a new Remington RXP shell, his opinion of the cause of the explosion would be the same. Plaintiff attempted to question Stekl regarding a list of prior explosions provided by Remington to plaintiff as answers to interrogatories. Stekl admitted having examined other Remington Model 1100 shotguns where persons had been injured but denied knowing of occurrences similar to the Moore explosion. Plaintiff's attorney then read the interrogatory answer in which Remington admitted the existence of "similar occurrences" to the explosion in the instant case. During clarification, Stekl stated that prior to the Moore gun explosion he was unaware of any complaint of a gun failure due to inclusions in the metal. The Moore gun was made of the same metal that Remington has always used for Model 1100 shotguns.

Stekl conceded that Remington, in answer to interrogatories, had admitted receiving complaints about Remington RXP shotgun shells but noted that four complaints in all had been received about the shells and none of them was in any way related to high pressure in the shells.

Remington's Evidence

Joe Lewis, former owner of Lewis Reloader Supply, testified that according to his records, the last time he made a sale to the gun club at Chanute Air Force base was February 24, 1975. Further, Lewis had no memory of any sale of supplies to the gun club in 1978 and had no record of such sale.

Phillip P. Johnson, supervisor of chemical and metallurgical control at Remington, is responsible for purchasing steel for the company and for insuring the quality of raw materials purchased by it. Remington has been using AISI 1140 modified steel in its Model 1100 shotguns since 1960. There has been no change in the specifications for the steel during that time, and the same steel is used in all shotgun barrels that Remington produces. The term "modified" after the number indicates that there is slightly more manganese and sulphur added to the steel than would be present in the "standard" 1140; Remington pays a slight premium price for this. Johnson acknowledged that chrome molybdenum steel does not have as many inclusions in it as AISI 1140 modified, but he denied that the presence of the inclusions weakens the barrel. Johnson admitted that chrome molybdenum was probably a better steel for use in shotgun barrels than AISI 1140 modified.

Johnson examined the Moore gun for metallurgical defects. His conclusion was that the cause of the explosion was a high pressure chamber burst, caused by pressure greater than that that would be produced by firing a normal factory-loaded shotgun shell. The committee at Remington believed that the cause of the explosion was most likely a hand-loaded shell.

Johnson had not seen the shotgun shell, plaintiff's exhibit No. 6, prior to trial. After examining the shell at trial, it was his opinion that it was a reloaded one. Further, assuming that that shell was in the gun at the time of the explosion, it was Johnson's opinion that the cause ...

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