United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1146
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Jon D. Katzenmeier, *
*
Plaintiff - Appellant, *
*
Julie Katzenmeier, *
*
Plaintiff, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Blackpowder Products, Inc., also *
known as Connecticut Valley Arms; *
Dikar S. Coop., LTD, *
*
Defendants - Appellees. *
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Submitted: January 11, 2010
Filed: December 10, 2010
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Before LOKEN,1 Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
1
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
Appellant Jon D. Katzenmeier was injured when a muzzleloader rifle
manufactured and distributed by Blackpowder Products, Inc., (Blackpowder) and
Dikar S. Coop. LTDA, exploded when he fired it for the first time. Dikar, a Spanish
business organization, designs and manufactures muzzleloading firearms, and
exclusively exports to Blackpowder, its U.S. subsidiary, muzzleloader rifles to market
and sell to consumers in the United States.2 Katzenmeier brought a product liability
action, and his wife, Julie, asserted a claim for loss of consortium. The case was tried
to a jury. At the conclusion of Katzenmeier’s case, the district court3 dismissed Julie
Katzenmeier’s claim. The jury returned a verdict in favor of Dikar/BPI. Katzenmeier
appeals several evidentiary issues. He argues that the district court erred in refusing
to admit evidence of substantially similar incidents concerning Dikar/BPI
muzzleloaders. Katzenmeier further argues that the district court erred in admitting
Dikar’s evidence regarding marks made on the barrel of the gun during the
manufacturing process. Lastly, Katzenmeier argues that the district court erred in
allowing Dikar/BPI’s experts to testify that Katzenmeier possibly may have used an
improper propellant in the rifle.4 We affirm.
2
The relationship between Dikar and Blackpowder is not at issue in this case,
and neither party suggests any distinction between the parties with regard to liability.
The district court referred to appellees collectively as “Dikar/BPI.” We will do the
same, except when individual references are needed for clarity.
3
The Honorable Ross A. Walters, United States Magistrate Judge for the
Southern District of Iowa.
4
Although Katzenmeier, in the “Statement of Issues Presented For Review”
portion of his brief, asserts that the district court erred by refusing to admit evidence
of foreign law with respect to testing civilian firearms, he does not include the issue
in the “Argument” section. As the district court noted, evidence of foreign regulations
in a case governed by domestic law has been found excludable because it likely leads
to confusion of the jury. Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1327 (6th Cir.
1992) (citing Deviner v. Exectrolux Motor, AB, 844 F.2d 769, 773-74 (11th Cir.
1988) (foreign legal standards are excludable in products liability cases)).
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I.
Ronald Katzenmeier, Jon Katzenmeier’s father, purchased the muzzleloader
rifle in question, a Kodiak Magnum (“the Kodiak”), from an Ace Hardware store in
Salina, Kansas, and gave it to Katzenmeier as a Christmas gift in December 2004. On
October 2, 2005, when Katzenmeier loaded the gun with a maximum magnum charge
of three 50-grain pellets of powder and attempted to fire the gun for the first time, it
exploded causing injuries to his head, face, and right hand.
Katzenmeier’s theory at trial was that the gun failed because the breech plug
“stripped[]” loose due to the formation of the barrel. To show this, Katzenmeier put
forth testimony that he properly loaded the Kodiak with the specified amount and type
of propellant and that an inadequate engagement between the threads of the barrel and
the breech plug caused the failure. Dikar/BPI contended that excess pressure from a
higher than proper load caused the failure. Dikar/BPI also specifically rebutted
Katzenmeier’s theory that the company misleadingly indicated that it had “proof
tested”5 the Kodiak by placing the emblem of the “House of Eibar,” a Spanish
government proof house, which proof tests firearms manufactured in Spain. The
firearms that Dikar sends to the United States are not proof tested.
The jury returned a verdict in favor of the defendants on all of Katzenmeier’s
claims.
5
A proof test is a test in which a firearm is fired with an overpressure load “to
evaluate the performance of [a] gun if an incorrect and excessive amount of
ammunition is utilized by the end user.” Dikar Procedures Manual § 4.2.1. Dikar/BPI
asserts that the United States does not require proof testing, and that there is not a
proof house in the United States. Katzenmeier does not disagree.
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II.
A.
Katzenmeier contends that the district court erred by excluding evidence of
other muzzleloader failures, because there are substantial similarities between the
other failures and this one. Dikar/BPI filed a motion in limine before trial seeking to
exclude evidence of these other incidents as dissimilar. The district court granted the
motion. Nonetheless, during trial, Katzenmeier made offers of proof as to two
muzzleloaders, one belonging to Eric Zenger and the other to Troy Cashdollar. But
as the district court explained in its written order granting the motion in limine:
for another incident involving a muzzleloader manufactured and sold by
defendants to be admissible as substantially similar to Mr. Katzenmeier’s,
the incident should be one in which (1) a threaded connection between the
breech plug and the rear of the breech failed, resulting in the ejection of
the breech plug upon firing and (2) the threads in the breech were formed
by the same rolling tap manufacturing process allegedly defectively
performed in this case.
We review a district court’s evidentiary rulings for abuse of discretion, giving
substantial deference to the district court’s rulings. Ferguson v. United States, 484
F.3d 1068, 1074 (8th Cir. 2007).
We affirm the district court’s ruling that the Zenger and Cashdollar incidents
are not “substantially similar” to the Kodiak. Unless the facts and circumstances of
other incidents are “substantially similar,” such evidence is inadmissible because
admitting such evidence could “raise extraneous controversial issues, confuse the
issues, and be more prejudicial than probative.” Lovett v. Union Pac. R.R. Co., 201
F.3d 1074, 1081 (8th Cir. 2000).
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First, the Cashdollar and Zenger muzzleloaders involved different breech plugs
than the Kodiak: the breech plugs were different in length and thread size than the
Kodiak. The Kodiak also involved internal rolled threads, which Dikar did not begin
manufacturing until around 2003; the Cashdollar and Zenger muzzleloaders were
made using cut threads before then. Next, Cashdollar and Zenger’s muzzleloaders
were a different model and design than in this case. The Kodiak was manufactured
in 2004 and consists of a falling block, stand-alone model. By contrast, the Zenger
gun includes a two-piece design with a barrel and receiver silver-soldered together;
and the Cashdollar muzzleloader, known as an Eclipse, had a monoblock design.
Lastly, the circumstances surrounding the incidents vary: Zenger purchased his gun
two years after the gun had been recalled and used it for two years before his incident;
Cashdollar shot his gun a “couple of hundred ” times. Based on our review of the
record, we are satisfied that the incidents were not “substantially similar” to
Katzenmeier’s accident, and the district court did not abuse its discretion by refusing
to admit the evidence.
B.
We next turn to whether the district court erred in admitting testimony from
Dikar executives to explain why the company placed the emblem of the House of
Eibar on the barrel of Katzenmeier’s gun during the manufacturing process.
Specifically, Katzenmeier argues that the testimony of Dikar’s quality manager Aitor
Belategi and of Dikar’s general director Jon Muniategui contain hearsay. When asked
for the policy decision or reason as to why Dikar did not proof test the guns, Belatagi
explained that “This is not our company’s decision. This is the decision of the
Proofhouse of Eibar. We must do what the proofhouse tells us to do.” Similarly,
Muniategui explained in his deposition testimony that Dikar’s purpose in applying the
House of Eibar emblem to its barrels was that “the proof house told us to do that.”
Before each of these witnesses’ testimony was introduced, the court gave a limiting
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instruction. The jurors were not to consider the testimony for the truth of the matter
asserted.
Federal Rule of Evidence 801 defines hearsay as a “statement, other than one
made by a declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” “Instructions to an individual to do something
are . . . not hearsay . . . because they are not declarations of fact and therefore are not
capable of being true of false.” United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir.
1994) (citations omitted).
A review of the record shows that Dikar/BPI did not offer this testimony for the
truth of what the proof house said, but rather to demonstrate the reasons for the
company’s marking procedures. Accordingly, the district court properly admitted the
testimony because it was not hearsay. See Fed. R. Evid. 801. The district court
advised the jury to use the testimony for this limited purpose. Katzenmeier has not
met his burden to show that the district court abused its discretion by admitting this
evidence because juries are presumed to be able to follow and understand the court’s
instructions. See United States v. Sandstrom, 594 F.3d 634, 645 (8th Cir. 2010)
(“[J]uries are presumed to follow their instructions.”) (internal citations and quotations
omitted). For these reasons, the district court did not abuse its discretion in admitting
Belatagi’s and Muniategui’s testimony for this purpose.
C.
Lastly, Katzenmeier argues that the district court erred in allowing testimony
from Dikar/BPI experts, which allowed the jury to speculate that Katzenmeier
possibly used smokeless powder or some other improper propellant in the
muzzleloader. His brief contains no record citations to the allegedly improper
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testimony, and we cannot locate any expert testimony that would lead to such
speculation. Katzenmeier does point to a motion in limine he filed before to prohibit
the experts from rendering the opinion that “smokeless powder” was used. The
district court denied the motion as an issue of the weight of evidence as opposed to its
admissibility. Katzenmeier apparently did not object during trial to any expert
testimony on this ground. When a party seeks to exclude evidence in a motion in
limine, but fails to interpose an objection to the evidence during trial, we review under
the plain error standard because the party failed to preserve the alleged error. Nw.
Flyers, Inc. v. Olson Bros. Mfg. Co., Inc., 679 F.2d 1264, 1275 n.27 (8th Cir. 1982).
Katzenmeier has not demonstrated that the district court committed error in
allowing defendants’ experts William Chapin and Frederick Schmidt to testify. “As
a general rule, the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility, and it is up to the opposing party to examine the
factual basis for the opinion in cross-examination. Only if an expert’s opinion is so
fundamentally unsupported that it can offer no assistance to the jury must such
testimony be excluded.” Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir.
1995) (quotations and citations omitted). See also Fed. R. Evid. 703.
The record indicates that Chapin and Schmidt were sufficiently qualified to
offer expert opinions. Chapin testified to his background, his education, training and
experience; his expectations and observations of the Kodiak; the existence of material
in the breech that should not have been present; and the lack of physical evidence that
should have been present. Likewise, Schmidt testified to his education; training and
experience; his observations of the Kodiak; and his detailed examination of the
metallurgical evidence. He also testified that he did not seek to determine what
misuse caused an excess in pressure. Chapin’s and Schmidt’s testimony was not so
fundamentally unsupported that it could offer no assistance to the jury. The district
court, therefore, did not err in admitting it.
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III.
For the foregoing reasons, the judgment of the district court is affirmed.
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