A hunter hurt when a rifle malfunctioned will collect more than $3.1 million from a major firearms maker thanks to a Massachusetts jury.
“The barrel exploded and caused him rather significant injuries to his left hand,” said Timothy Monsees of Monsees & Mayer in Kansas City.
The firm represented plaintiff Daniel Rice, who was hunting in Maryland in November 2015 when his Thompson Center Omega Z5 muzzleloader rifle blew up as he attempted to discharge it. Rice sued the manufacturer, American Outdoor Brands Corp., a subsidiary of Smith & Wesson.
“We claim that they used an inappropriate steel alloy,” Monsees said. “There was a better, stronger steel alloy available to them, which they actually recognized as an alternative design.”
The plaintiff also alleged that notches and a screw hole in the barrel securing it to the forestock also contributed to the mishap in addition to the choice of metals which Monsees said had a lesser yield strength.
He said the company claimed there was nothing wrong with the alloy and alleged contributory negligence.
Though the accident took place in Maryland, Rice had been a resident of Missouri, said Monsees. The suit was filed in Massachusetts due to the location of the defendant company. However, the proceedings applied Maryland law, a fact which plaintiff co-counsel Andrew Nebenzahl of Nebenzahl Law Group in the greater Boston area, said led to the judge’s dismissal of the count alleging violation of Massachusetts consumer protection statutes.
“I think Mr. Monsees had a very, very good theory of liability,” Nebenzahl said. “He handled it well. He simplified it so the jury could understand it. We had a terrific client who made a very good witness and he had a significant injury which the jury appreciated.”
Eventually, the case went to trial under a negligence argument.
“Under strict product liability, you just try the product,” Monsees said. “In other words, the manufacturer can exercise all due care in how and why it designed the product the way it did and that’s not a defense in strict product liability if the jury concludes the product is defective by design and unreasonably dangerous. We had to take the additional step of showing that it was defective by design and that the manufacturer was negligent in the decision-making it engaged in, in order to market that product.”
Monsees said that metallurgists testified for both sides in the matter and argued over the acceptability of the alloy although they agreed on where the gun had fractured.
Nebenzahl said that the defendant contended that Rice bore some responsibility because he had not marked his ramrod during loading and could not recall whether he had read the manual after purchasing the rifle years earlier.
However, the attorney noted that the plaintiff was not a novice and actually taught others in the use of muzzleloading weapons.
“They tried to distract the jury on these allegations that just didn’t add up,” Nebenzahl said.
He said that Smith & Wesson, which acquired the company before the accident, did not own the smaller gunmaker when the weapon was manufactured. He said that, after the acquisition, they discontinued use of the alloy in question except for special orders.
Monsees said there was little dispute over the extent of injury.
Jurors awarded $2 million to Rice. An additional $1,176,504 in prejudgment interest also was awarded.
Anthony Pisciotti and Danny Lallis of Pisciotti Lallis Erdreich and Jeffrey Poindexter of Bulkley Richardson represented the defense. They did not return requests for comment.
$2 million verdict (out of state)
Venue: Hampden County (Massachusetts) Superior Court
Case Number/Date: 1779CV00383/Apr. 21, 2022
Judge: James Manitsas
Plaintiff’s Experts: Charles Powell, Norman, Oklahoma (metallurgical engineer); Ryan Katz, Baltimore, Maryland (medical)
Defendant’s Experts: Marlin Jiranek II, Elizabethtown, Kentucky (metallurgical engineer); Sam Fadala, Arizona (muzzleloader handling)
Last Pretrial Demand: $900,000
Last Pretrial Offer: $75,000
Caption: Daniel Rice v. Smith & Wesson Brands Inc.
Plaintiff’s Attorneys: Timothy Monsees and Robert Thrasher, Monsees & Mayer, Kansas City; Andrew Nebenzahl and Carly LaCrosse of The Nebenzahl Law Group, (Sharon, Mass.)
Defendant’s Attorneys: Anthony Pisciotti and Danny Lallis, Pisciotti Lallis Erdreich, Florham Park, N.J.; Jeffrey Poindexter, Bulkley Richardson, Springfield, Massachuetts