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12/30/88 Robert Loitz, v. Remington Arms Company

December 30, 1988

ROBERT LOITZ, PLAINTIFF-APPELLEE

v.

REMINGTON ARMS COMPANY, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

532 N.E.2d 1091, 177 Ill. App. 3d 1034, 127 Ill. Dec. 262 1988.IL.1945

Appeal from the Circuit Court of Douglas County; the Hon. Frank W. Lincoln, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This action was brought by plaintiff Robert Loitz against defendant Remington Arms Company, Inc., to recover for injuries plaintiff sustained from the explosion of his Remington Model 1100 shotgun. The incident occurred while plaintiff was trapshooting using shells he reloaded. Following a jury trial conducted in the circuit court of Douglas County, the jury returned a verdict in favor of the plaintiff and against defendant, awarding $75,000 compensatory damages and $1,600,000 punitive damages. Judgment was entered on the verdict. Defendant appeals from the judgment and the denial of the post-trial motion, asking this court to enter a judgment n.o.v. on the wilful and wanton count and grant a new trial on the negligence count. Alternatively, defendant requests a new trial on both counts or at least a substantial remittitur on the damages.

On June 19, 1983, plaintiff was competing in a trapshooting meet at the McCown Gun Club near Newman, Illinois. While shooting shotgun shells, which admittedly he reloaded himself, his Remington Model 1100 shotgun exploded. Plaintiff suffered injuries to his left hand and thumb.

Trapshooting typically involves firing several hundred rounds (shells) at targets during each meet. A weekend of trapshooting can involve as many as 600 rounds. As a result, handloading used shotgun shells is a common practice among trapshooters. It allows them to use reloaded shells at half the cost of new shells. Typically reloaders use a machine that enables them to produce hundreds of shells in a single evening's work. However, reloading is literally the individual shooter's remanufacture of shells at home using the usual components (gunpowder, primer, et cetera) but without assurance of factory quality controls.

Plaintiff was using a reloaded shotgun shell at the time his Model 1100 shotgun exploded. In reloading his shells, plaintiff used a multi-station reloading machine known as a Ponsness-Warren Model 800-B. A different function is performed at each of eight stations. First, the previously fired shell cases are loaded into the machine by hand one at a time throughout the reloading activity. The old primer is removed from each shell mechanically and replaced by a new one from a supply of new primers loaded into the machine before the reloading operation begins. The shell, with the new primer, is resized to its original dimensions and then is moved around on a turret that has places for eight shells. As the turret rotates, the shell with the new primer inserted moves to the next station to be loaded with powder. At the same time, a second shell casing is put in the machine, the old primer removed, and a new one inserted. As the turret moves again, the first shell moves to the next station where the wad is inserted by hand, the second shell moves to the powder station where it is loaded with powder, and a third used shell case is inserted by hand for primer replacement. After insertion, the wad is pushed down in place on top of the powder and then as the turret moves again the shells all advance to the next station. The first shell then receives shot. Thereafter it is crimped closed mechanically. It then moves to the ejection station as the turret turns again and it is ejected from the reloading machine. The various actions of the machine take place upon the operator's movement of an arm on the side of the machine.

Reloading requires the reloader's careful attention and concentration on the various steps involved. Distractions of any kind can lead to mistakes resulting in either duds or overloaded shells.

Glenn Jackson, the former owner and chairman of the Ponsness-Warren Company, explained the hazards associated with reloading. He testified about the mistakes that can be made and the consequences. He explained how it was possible to make dangerously overloaded shells that are virtually indistinguishable from properly loaded ones. For example, Jackson testified that a shell produced on a Ponsness-Warren 800-B with four times the normal powder charge but without a wad had a normal appearance. According to Jackson, the Ponsness-Warren 800-B reloader is "undoubtedly the best machine on the market." Jackson said that if this complex machine is operated correctly, it is one of the safest reloaders. It is, however, subject to operator error.

The plaintiff admitted reloading the shells involved in the accident. Plaintiff had no problem with his reloading machine, and he did not recall any problem in reloading the shells he used when his shotgun exploded on June 19, 1983. When reloading shells he did nothing other than just look at the shells in order to make sure that they were properly loaded. He acknowledged that numerous kinds of mistakes were possible in reloading shotgun shells, and he had made reloading mistakes in the past. When he made a mistake during reloading he did not stop to mark or identify the mistaken shell while it was in the machine. Plaintiff also admitted that he had in the past forgotten to insert wads in shells he reloaded.

Although plaintiff stated it was possible to make a human error on the machine, in order to load multiples of any shell component and then load the shell into a gun, one would have to intentionally ignore the safety features of the reloading machine and ignore an improperly crimped shell. Plaintiff testified on cross-examination there are several situations in which the warning signs of spilled shot and improper crimps would not exist.

According to defendant's pressure data, it would take more than two charges of powder and some other combination of wad and lead shot components in order to burst a non-defective Model 1100 barrel. At trial, Jackson made one shell which he said could be made without altering the reloader. This shell had four charges of powder, no wad and one charge of lead shot. But, the shell proposed by defendant to explain the incident contained three powder charges, a plastic wad, and one charge of lead shot. However, Jackson, defendant's reloading expert, was unable to make this shell during his trial demonstration. Although defendant had previously made such a shell with the components and a reloader similar to those used by plaintiff, Jackson said he had no explanation as to how defendant loaded its shells. He admitted he was not a ballistics expert and that he did not know anything plaintiff was doing in reloading which would cause a gun to blow up. He did not know what pressures would be required to blow up a non-defective Model 1100 shotgun barrel. Jackson testified, however, that the failure to mark a shell where there has been an error is one of the most significant deviations from good reloading practices.

The Model 1100 shotgun is designed as a multi-purpose firearm suitable for trap and skeet shooting as well as hunting game. It has interchangeable barrels and is a semi-automatic, gas-operated shotgun. As such its low recoil makes it particularly attractive to high volume shooters. It was designed in response to user preferences with the aid of a sophisticated computer design program to be a state-of-the-art product. Following extensive laboratory and field testing the Model 1100 was introduced in 1963. It has been produced continuously since that time with over three million barrels sold to the public.

The Model 1100 is also purchased by the United States government for use by the various branches of the armed services. In that connection, the United States Government Procurement Office reviewed and approved defendant's raw material selection, product design, and manufacturing processes.

The barrel of the Model 1100 is manufactured from a low carbon steel known as American Iron and Steel Institute 1140 modified steel. The AISI 1140 modified steel used to make the Model 1100 barrel is delivered to defendant as bar stock. Each shipment is inspected and tested by defendant using recognized sampling and testing methods to determine that it meets the raw material specifications. The bars are cut to useful size forming a slug which is then extruded, hot worked by hammer-forging and finished to form the barrel. The chamber area is heat treated. Other components are added to the barrel as the Model 1100 is manufactured. At various points in the process the assembly is inspected and tested. At the final assembly stage the shotgun is extensively tested and inspected. Thereafter each shotgun is sent to the gallery for firing and further testing, including what is known as proof testing.

Proof testing, a universally recognized testing method used throughout the firearm industry, subjects the article tested to stress within its design limitations, but substantially greater than it is expected to experience during normal use. The Model 1100 is designed to withstand upwards of approximately 45,000 pounds of internal pressure per square inch (psi) without failing catastrophically. Normal rounds produce 8,000 to 12,000 psi while the shells used for proof testing produce approximately 18,000 to 22,000 psi. Defendant's witnesses opined that plaintiff's shotgun barrel experienced at least 60,000 psi when it exploded.

Defendant does not conduct examinations after the proof testing to determine if there are defects or cracks in the barrel which might have been started by the proof test itself. Only a visual inspection is made of the gun barrel after proof test. Nothing is done after proof testing to inspect the inside of the barrel for cracks.

At trial, Dr. David Levinson presented the plaintiff's expert testimony. He stated that AISI 1140 modified steel contained tiny particles of manganese sulfide known as inclusions which were the cause of microscopic cracks which may develop during the proof testing of the shotguns. These cracks grow each time normal shells are fired until the crack reaches such a size that the shotgun fails catastrophically when a normal shell is fired. According to Levinson, the selection of AISI 1140 modified steel for defendant's shotgun barrels was negligent because, in some shotgun barrels, the inclusions were either large enough or grouped together close enough so that cracks could begin to form and grow due to the repeated stressing of the barrel caused by subsequent firings. Levinson stated that chrome molybdenum steel should have been used instead. In addition, Levinson testified the shotgun barrel walls of the Model 1100 were not thick enough in the chamber area. He admitted, however, he was unable to measure the thickness of the plaintiff's shotgun because of its damaged condition. Levinson also testified that the Verson extrusion process defendant used to manufacture plaintiff's Model 1100 shotgun barrel aggravated its defective condition.

Levinson testified he measured a number of Model 1100 barrels and found the more recently manufactured barrels were thicker than the ones made about the time of the plaintiff's barrel. The barrel of defendant's 12-gauge Model 870 pump shotgun is made of the same AISI 1140 modified steel; however, its barrel is thicker than the Model 1100 barrel. Levinson considers the Model 870 barrel to be safer because it is thicker according to Levinson.

James Hutton, defendant's representative at trial, said he had no records regarding the history of Model 870 barrel failures, except he admitted that if Remington reported only four such failures, "that's all there is." Hutton further testified that he knew of no other shotgun manufacturers using the AISI 1140 modified steel which defendant uses in its Model 1100 barrels. However, other manufacturers do use AISI 1100 series steels that are very similar. Defendant's Model 1100 shotgun barrels have all been made of the same material. Defendant claims these barrels have always been made to the same specification for barrel wall thickness at the chamber area. However, defendant's 1980 catalog states that the then-current barrels were "of sufficient thickness and hardness that the repeated use of factory-loaded steel shot loads does not significantly affect their appearance or performance."

In approximately 1980, defendant began to change its manufacturing process for the Model 1100 shotgun barrel from Verson extrusion to auto-drilling. While defendant maintains this made no change in the strength of the barrel, defendant had no data on how many, if any, Model 1100 barrels had exploded where the barrels were made after 1980. Hutton did admit that the manganese sulfide inclusions from the Verson extrusion barrels are "thicker and longer than those found in the post-1980 auto-drilling barrels." Hutton also admitted that since the Model 870 barrel is thicker, it, "in theory at least, is stronger." Plaintiff's barrel was a Verson extrusion barrel made before 1980.

Defendant produced evidence of warnings in the owner's manual about the dangers of improperly reloaded shells, and the plaintiff admitted that he had long been aware that reloads could be dangerous. Defendant's employee, James Hennings, presented physical evidence that showed how a deliberately overloaded shotgun shell would cause a Model 1100 shotgun to explode in a manner identical to the plaintiff's shotgun. Further, Hennings testified that the remains of the plaintiff's shotgun shell exhibited the kind of damage characteristically caused by an overloaded shell.

Dr. Richard Hertzberg, a metallurgist and fracture mechanics specialist from Lehigh University, presented extensive testimony regarding his own independent tests of Model 1100 shotgun barrel steel. Hertzberg explained the tests he designed and performed in his laboratory at Lehigh as well as his examination of samples of the plaintiff's shotgun barrel. His tests were based on scientifically recognized protocols of the American Society for Testing Materials and provided data from which he determined the "fatigue limit" or "endurance limit" of the steel used in the Model 1100 barrel. The fatigue or endurance limit of a material is the stress level below which the material will not fail by fatigue regardless of the number of cycles.

In the case of steel, the fatigue or endurance level is constant, which means at stress levels below the "endurance limit," the material will not fail by fatigue regardless of the number of cycles to which it is subjected. Hertzberg's tests indicate that (1) the plaintiff's shotgun failed from high pressure and not from fatigue; and (2) that the AISI 1140 modified steel as used in the Model 1100 was a proper selection that would not fail from fatigue at normal use pressures, because such pressures were below the "endurance limit." Moreover, cracks would not begin to grow to failure as a result of proof testing for the same reason.

Levinson agreed that the concept of the fatigue or endurance limit is well recognized in metallurgy, fracture mechanics, and failure analysis. However, Hertzberg's "C-ring tests" were criticized by Levinson because of the procedure used in these tests and because of the unrealistic toughness values obtained from the test. Hertzberg could not correlate the loads of stress above 100 pounds. He insisted that, in his opinion, the barrels could not fail at proof-test pressures (18,000 to 22,000 psi) or less, because of his C-ring test results. However, when confronted with defendant's admission that at least one of its new barrels had failed during proof testing at the factory, Hertzberg said he was not aware of this and could not reconcile it with his studies.

The shell actually used by plaintiff was consumed in the explosion. All that was left was the brass base from the shell and, according to Hertzberg, it exhibited all the classic characteristics of high pressure overload.

Defendant has concluded in every prior similar Model 1100 explosion that the explosion was caused by high pressure shells. Defendant had admitted that 94 other explosions, which "were substantially similar to the explosion of the Robert Loitz shotgun," were reported to defendant before the explosion of plaintiff's gun. Of the 94 reports, 89 involved reloaded ammunition. Only five reports involved people who claimed they were using factory shells. Delores Moore and Terry Glover testified about the circumstances of their explosions, saying that they used new factory shells at the time their guns exploded. The witnesses whose Model 1100 shotguns exploded prior to June 19, 1983, testified about the circumstances surrounding their explosions. These witnesses, Nicholas King, Glover, and Moore, suffered similar personal injuries to those of plaintiff, and they had made reports and complaints to defendant before the plaintiff's explosion. Defendant has never "warned" the public that these guns have exploded, from whatever cause.

Hutton testified that these explosions would have been impossible with a new factory shell. While not admitting defendant made a defective Model 1100 shotgun barrel, Hutton did agree that it would be a "bad barrel" or a "bad product" if a barrel exploded on the firing of a normal shell.

Defendant has no records of the circumstances involving the 94 prior similar explosions and claims that all such explosions are due to high pressure shotgun shells. Hutton testified to another 100 Model 1100 barrel explosions in 1979 alone, wherein there were no claims for personal injuries. Hutton noted that these 100 other failures could have been due to barrel obstructions.

Defendant's product services representatives, James Stekl, admitted knowing that Levinson had advised defendant in 1979 or 1980 of claimed barrel defects caused by the manganese sulfide inclusions. Stekl also admitted that defendant's own metallurgist, Phillip Johnson, testified in 1980 that "chrome-moly steel would probably be better to use for shotgun barrels because it did not have manganese sulfide inclusions."

According to Stekl, defendant disbanded its gun examination committee in 1983. This committee was responsible, among other things, for examination of failed shotguns returned to defendant with a complaint. These gun exams have been taken over primarily by Ed Sienkiewicz of the product services department. Defendant receives "a few" complaints each year of Model 1100 explosions, but Stekl did not know an exact number. Defendant's records on these complaints are destroyed three years after the final correspondence, including records from the gun examination committee. Defendant stipulated to a net worth of $162,314,000.

After the jury returned a verdict in favor of the plaintiff, awarding $75,000 in compensatory damages and $1,600,000 in punitive damages, defendant filed a post-trial motion seeking various forms of relief, including a new trial based on newly discovered evidence that less than two days after the verdict plaintiff was shooting trap competitively. He scored as high or higher than he did before the incident even though he testified at trial he had not been shooting trap competitively because of his injury. The plaintiff filed a motion to strike those portions of defendant's post-trial motion relating to newly discovered evidence. The plaintiff's motion was granted and defendant's was denied.

The first issues to be considered are whether the trial court erred by admitting evidence concerning the Remington Model 870 shotgun and whether the trial court erred by admitting testimony concerning chrome molybdenum steel where reference thereto in a catalog advertisement was a printing error and there is no evidence defendant ever used such material in its shotguns. Defendant complains that the trial court, in spite of defendant's motions in limine and objections, allowed plaintiff to introduce evidence concerning the barrel wall thickness of the defendant's Model 870 shotgun and to question Hutton concerning defendant's use of chrome molybdenum steel in an advertisement in a 1980 catalog. Defendant argues the Model 870 and Model 1100 are different in design, the Model 870 being pump action and the Model 1100 being semi-automatic. While both have barrels made from AISI 1140 modified steel, the Model 870 barrel is thicker in the chamber area than is the Model 1100 barrel because the 870 barrel was originally designed as a two-piece barrel, with the additional wall thickness being added to accommodate the threads on the barrel and barrel extension. Defendant admits, however, that the Model 870 barrel was later manufactured as a single piece, although the thickness of the barrel wall in the chamber area remained the same to accommodate the shells, which had not changed dimension, and to be interchangeable with the older two-piece barrels already sold to consumers.

The only case cited by either party in the Discussion of this issue is Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 427 N.E.2d 608. While the Moore opinion does discuss testimony concerning chrome molybdenum steel, there is absolutely no Discussion about the Model 870 shotgun or any other alternative designs for 12-gauge shotguns.

In this case, plaintiff argues the testimony concerning the Model 870 is relevant to defendant's knowledge of an alternative, safer design for a 12-gauge shotgun. Hutton, defendant's employee, testified to the similarity and that defendant was aware of only four explosions of a Model 870 shotgun. Evidence of alternative designs is clearly relevant to the question of the feasibility of defendant adopting a safer design, since "feasibility" includes not only economy, effectiveness, and practicality, but also technological possibilities. (See Schaffner v. Chicago & North Western Transportation Co. (1987), 161 Ill. App. 3d 742,515 N.E.2d 298.) Therefore, the trial court did not err in allowing evidence concerning defendant's Model 870 shotgun to be placed before the jury.

With regard to the reference to chrome molybdenum steel in an advertisement, plaintiff introduced as an exhibit the 1980 catalog for defendant which, in reference to the Model 1100, states: "Both barrel and receiver start as solid billets of ordinance-quality chrome molybdenum steel." Hutton testified that defendant did not use chrome molybdenum in its shotguns and that the advertisement must have been a mistake.

Levinson testified that chrome molybdenum steel was better material for use in shotguns than was AISI 1140 modified. Plaintiff's contention throughout trial was that defendant should use chrome molybdenum steel. Therefore, defendant's representation in a catalogue that it used chrome molybdenum steel might be relevant had there been testimony to the effect that plaintiff relied on the statement when purchasing the shotgun which exploded. Otherwise, the relevance of the ad to the issues in the case at bar is tenuous, at best, and the advertisement and testimony should not have been allowed into evidence. On the other hand, since Hutton explained the advertisement was a mistake, the trial court's evidentiary ruling was harmless error.

The next issue to consider is whether the trial court erred by refusing to give defendant's jury instruction Nos. 1, 2, and 9 and by giving plaintiff's jury instruction No. 26. Defendant's tendered jury instruction No. 1 states:

"Notice of prior accidents does not constitute knowledge of a defect in the product.", Defendant's No. 2 states:

"Guns are inherently dangerous instrumentalities. The mere fact that other guns had exploded does not, therefore, in and of itself ...


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