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U.S. Dist., Eastern

This action was brought by a 35-year-old male plaintiff contending that while using the defendant’s high speed ammunition in a Harrington & Richardson revolver, one of the defendant’s cartridges ruptured, or burst during firing and that a piece of the cartridge expelled from the revolver and embedded itself in the plaintiff’s right eye. The plaintiff argued that the defendant’s ammunition was defective due to the failure of the packaging to contain warnings advising the user of the potential for rupture of cartridges during the firing sequence. The plaintiff contended that the defendant’s product was further defective due to the defendant’s failure to advise the user as to methods of protection during use of its product, specifically advising the wearing of safety glasses. The plaintiff also asserted the malfunction theory as the cause of rupture of the particular cartridge.

The plaintiff’s human factors expert in product design and safety testified that adequate warnings alert the user of the potential risks of the product, identify the risk, relate the potential harm arising out of those risks and advise the user how to protect himself from those risks. This expert asserted that the statement contained on the defendant’s package failed in all four criteria. This expert asserted that a warning limited to information that the ammunition was of higher speed and that the ammunition was intended for use in modern firearms in good condition was inadequate. He also contended that the language of this warning was ambiguous. The expert asserted that the language should have included the word "Danger," that there should have been contrasting color to alert the user of the warning, and that the user should have been alerted to the specific possibility of the cartridge rupturing and that such an event can cause injury.

The plaintiff’s engineer and material science expert testified that when the explosion occurred, a piece of cartridge went backwards from the top or side near the face of the revolver’s cylinder and projected into the plaintiff’s eye. This expert asserted that he could not see any physical damage or unique corrosion of the firing controls of the revolver and that although he did not conduct a hardness test, he concluded that there was a lack of strength in the cartridge by discounting other possibilities. During the liability presentation, the plaintiff introduced into evidence the box of ammunition, the failed cartridge and the plaintiff’s revolver.

The defendant maintained that the warning contained on the packaging was adequate and that the sole cause of the plaintiff’s injury was the condition of the plaintiff’s revolver, which was manufactured in the ________’s. The defendant’s firearms expert testified that the particular revolver was not a "modern revolver," nor was it in good condition. This expert asserted that the plaintiff’s revolver was worn and had an excessive head space area from the rear of the cylinder to the recoil plate, contending that this allowed the cartridge to remain unsupported during the firing sequence. The plaintiff asserted that there was no question that there was a greater head space in the plaintiff’s revolver than one would find in a newer model, but maintained that there was no advisory to the user concerning this circumstance.

The plaintiff’s treating ophthalmologic surgeon testified that he attempted to remove the cartridge fragments embedded in the plaintiff’s eye. This surgeon asserted that a piece of the cartridge had embedded itself in the plaintiff’s retina, causing impairment to the central vision. He further testified that the plaintiff additionally experiences cloudy vision and has tested 20\________ in the affected eye. The surgeon asserted that there were no procedures or treatments which could improve the vision.

Fundus photographs of the interior of both the non-damaged and damaged eye were utilized to exhibit by contrast the damaged area of the plaintiff’s right eye which was represented by discoloration. The plaintiff’s expert vocational expert testified that although the plaintiff has returned to his employment as a farm equipment mechanic, he sustained an impairment of earning capacity. This expert asserted that the plaintiff was limited in opportunities of working in other associated areas with more complicated machinery and industrial applications. This expert contended that the plaintiff sustained a diminution of future earning capacity in the amount of $________ to the time of retirement.

The defendant did not present expert medical testimony, but on cross-examination of plaintiff’s treating ophthalmologic surgeon, challenged the extent of the injury. The defendant’s vocational expert testified that the plaintiff did not sustain an impairment of earning capacity and that the plaintiff was able to continue with each of the vocational activities he performed prior to the incident. The jury determined that the cartridge was not defective. The jury did find that the defendant’s product was defective due to lack of adequate warnings. The plaintiff was awarded a lump sum of $________. Plaintiff’s human factors expert in product safety design: Raymond Brandt of Fort Wayne, Indiana.

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