On January 27, the Sixth Circuit Court of Appeals reversed a portion of a lower court ruling, potentially reopening a Kentucky liability case against SIG SAUER. According to the Sixth Circuit’s opinion, the lower court erred, at least in part, by dismissing the plaintiff’s expert witnesses.
The Sixth upheld the exclusion of both expert witnesses James Tertin (firearms expert) and Dr. William J. Vigilante, Jr. (human factors expert) in the factual circumstances of the case (neither “expert” tried to replicate the incident or the factual circumstances).
However, it found the lower court erred in dismissing the experts’ assertions that the SIG P320 was “defectively designed and that reasonable alternative designs exist.”
Kentucky liability law requires a “risk-utility test” that requires “proof of a reasonable alternative design.” Tertin and Vigilante, Jr. offered alternative designs.
Consequently the plaintiff, who the court says “inadvertently shot himself in the leg with his SIG Sauer P320 X-Carry pistol” should have that portion of the case heard and decided, by a jury, not a judge.
The ruling is complicated, but the ruling vacates the summary judgment granted to SIG SAUER and remands the case for “further proceedings consistent with the opinion.”
When you’re a major player in the firearms business, you get a lot of attention, especially from the legal liability industry. Today’s product liability law is essentially a sub-industry of the legal profession. And it’s apparently lucrative. You’re not likely to see local TV ads or billboards for criminal or tax attorneys.
SIG is a company the legal liability industry considers as having “deep pockets.” When you have a company with “deep pockets,” you become the target for all manner of liability claims.
For SIG, the liability claims have focused on their P320 pistol. It is owned, carried and trusted by hundreds of thousands (myself included). On January 31, 2024 SIG trumpeted the fact their P365 and P320 pistols were “for the second year in a row” the top selling handguns in the GunBroker.com 2023 10 Best Selling Handguns” report.
Carried by “all branches of the military, law enforcement agencies, professional shooters, consumers and numerous other military units worldwide,” the release opined the pistol offered “unmatched modularity, unprecedented accuracy, uncompromising reliability, and redefines the modern handgun.”
But that widespread representation across the spectra of casual and serious gun owners, along with the “unmatched modularity” seems to have opened the company up for liability claims, or at least drawn the attention of plaintiff attorneys. Consequently, claims of inexplicable discharges have come from across the spectra. Both civilians (like Davis in Kentucky) and police officers have claimed their P320 pistols “just went off” when holstered. Some agencies have agencies have gone so far as to replace the pistol following those assertions.
In defending their products -and their position in the marketplace- SIG has walked a razor’s edge.
In order to defend their guns, they’ve had to prove that some of their core constituency, P320 owners, whether civilian or law enforcement, have dubious, if not downright unsafe, gun handling practices.
Product liability claims are tough for any company. But defending a pistol being trusted by soldiers and law enforcement make concerns over reliability and safety crucial to your your customers - and your company. Soldiers and policemen aren’t excited at having a gun prone to inexplicable discharges as a weapon their very lives may depend on.
SIG’s defenses against liability cases are reflections of a tag line that appears across their websites, product packaging, and advertising: Never Settle.
But SIG hasn’t been successful against all comers. Last June, a Georgia jury awarded a plaintiff $2.3 million in a case involving the P320. Last November, a Philadelphia jury awarded $11 million to a plaintiff for a claim similar to the Kentucky case.SIG, in keeping with it’s “never settle” philosophy, is appealing each of those decisions.
With expert testimony -including experts for the plaintiffs -agreeing that the P320 requires a press of the trigger to fire, they have reason not to settle. The company filed a countersuit against a Connecticut law firm for publishing a video it said was “misleading.”
Despite that, the list of claimants continues to grow. Plaintiff attorney Robert Zimmerman has represented a number claims against SIG. He now claims “50 additional clients plan to file suit against SIG Sauer” this year.
Privately, SIG officials have repeatedly told me they consider these suits baseless - and will continue to fight them. One described one trial where a jury ruled against SIG “a clown show” with a jury ignorant about firearms swayed by plaintiff attorneys after being confused by their “so-called experts.”
Despite that, at least one after-market accessory maker has quietly stopped making or selling trigger parts for the P320, previously one of their most popular categories.
Owners say the decision was not made because of any issue with the P320 or its trigger design. The decision was based on not being financially able to risk defending themselves in a product liability trial. Not every pocket in the industry is as deep as SIG’s.
If this seems reminiscent of the long-running product liability questions with Remington’s venerable Model 700 rifle, you’re correct. You’re also dating yourself.
Long considered the standard of mass-produced bolt action rifles, triggers on both the Remington 700 and Model Seven rifles were called into question over a claimed propensity to fire with no trigger pull.
The question was first raised in 1940 and remained until the company’s bankruptcy in 2020.
Remington recalled more than 1,300,000 rifles manufactured between 2014 and 2017, and successfully defended against most of the claims, by proving many of the so-called “defects” were the result of a combination of amateur gunsmithing and/or poor maintenance.
Having covered the Remington story, I recall how astute retailers recognized the opportunity presented by the trigger question. They added a variety of after-market “upgrade” triggers, without acknowledging any problem with the original Model 700 triggers. Those triggers, I’m told, “sold like hotcakes.”
Our November 10, 2010 The Outdoor Wire’s Top Story reported on a CNBC documentary called “Remington:Under Fire” and its claim that the Remington 700 had been “unsafe since its introduction nearly six decades ago.” It was heady stuff, especially with CNBC’s withering claim that Remington had “not only known about the problem since the rifle’s introduction, it had knowingly avoided fixing the problem.”
Remington launched what could only be categorized as a “spirited” defense, telling “Vendors, Retailers and Industry Partners” in a letter how the company had made a considered response not to cooperate into the CNBC investigation, having provided the outlet with "a great deal of factual information and background materials, including the Model 700's decades long record of safety and reliability."
We didn’t provide “instant analysis” on the report, due to its “potential repercussions across an entire industry, and certainly inside one of the companies that now comprise the largest American firearms company.”
Sounds a lot like the P320 of today, doesn’t it?
Plaintiff lawyers are looking for a big payday. SIG’s faced with defending its reputation and its products. Plaintiff lawyers would prefer to play “sue and settle.” SIG’s shown no inclination to do that.
With gun manufacturers acknowledging the fact the industry’s facing what some are characterizing as the “Trump Slump 2.0” sales slowdown, every unit sale is important, even for category leaders. When sales slow, market increases come at the expense of your competitors.
As always, we’re watching. Again, as always, we’ll keep you posted.
— Jim Shepherd