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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODNEY PALATKA, et al,
Plaintiffs,

Case No. 1:10-cv-626

v.

Hon. Robert J. Jonker

SAVAGE ARMS, INC., et al,
Defendants.
_________________________________/
ORDER
Pending before the Court is plaintiff’s Third Renewed Motion for Default Judgment
(docket no. 334). This case arises out of the November 17, 2009 explosion of a Savage Arms model
10ML-II muzzle-loading rifle barrel manufactured by defendant Savage Arms, Inc. (Savage).1
Plaintiffs allege the explosion caused Mr. Palatka to suffer a severe bodily injury and Mrs. Palatka
a miscarriage as a result of trauma.
The 10ML-II is a muzzleloader, meaning that it does not fire the self-contained, preloaded cartridges used in modern firearms. Instead, both the projectile and the expelling charge are
manually loaded into the firearm through the open end of the barrel prior to firing. The 10ML-II
is available in two models, one with a traditional “blued” barrel and the other with a barrel made
from 416R stainless steel. “416R” is the particular alloy of stainless steel used to manufacture the
10ML-II’s barrel, and is one of many stainless steel alloys. The firearm at issue in this case is the
stainless steel version of the gun. The barrel was designed with threaded site holes to permit a user

1

Savage Arms Company is also listed in the caption but apparently is a dissolved Delaware
corporation. See Docket No. 5, Defendant’s Answer, ¶ 2.

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to attach a scope. Plaintiffs Rodney and Joanie Palatka claim the barrel explosion was caused by
defects in the threaded rear site hole in the barrel and/or by the 416R stainless steel used to
manufacture the barrel.
The rifle was shipped from Savage’s factory on or about September 27, 2002, and
subsequently purchased from a federally-licensed firearms dealer by Eldon Hofacker. On or about
November 14, 2009, the muzzleloader was borrowed by plaintiff Rodney Palatka for deer hunting,
and when he fired it, the barrel exploded, causing him to lose his left index and middle fingers. The
remaining part of his hand was severely injured, as was his right thumb. Rodney is a self-employed
electrician. His wife, Joanie, pregnant with twins at the time, witnessed the explosion. It is alleged
that on the way to the hospital she developed severe abdominal pain and vaginal bleeding. She was
admitted to the hospital at the same time as her husband, and miscarried shortly thereafter, losing
both children.
This action was filed June 30, 2010. Plaintiffs have pursued recovery under five
distinct theories: design defect, manufacturing defect, failure to warn, breach of express warranty,
and breach of implied warranty. Mrs. Palatka also filed a claim for loss of consortium.
Because they are closely tied to issues of discovery, two of plaintiff’s theories of
recovery brought under Michigan’s product liability law, design defect and manufacturing defect,
as discussed by the Sixth Circuit in a previous opinion in this case, are set forth below:
A.

Design Defect.

The Plaintiffs allege that Rodney’s injuries were caused by a design defect
in the 10ML-II. The elements of a design defect claim have been codified in
Michigan law. See Mich. Comp. Loaws § 600.2946(2). To prevail on a design
defect claim in that state, plaintiff must prove that “(1) the product was not
reasonably safe when it left the control of the manufacturer; and (2) a ‘feasible
alternative production practice was available that would have prevented the harm
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without significantly impairing the usefulness or desirability of the product to the
users.’” Croskey v. BMW of N. Am., 532 F3d 511, 516 (6th Cir. 2008) (citing Mich.
Comp. Laws § 600.2946(2)0; Gregory v. Cincinnati Inc., 538 N.S. 2d 325, 329
(Mich. 1995)). The second prong of this test requires a “risk-utility” analysis. It
“invites the trier of fact to consider the alternatives and risks faced by the
manufacturer in designing the product and to determine whether in light of certain
factors ‘the manufacturer exercised reasonable care in making the design choices it
made.’” Croskey, 532 F.3d at 516 (quoting Prentis v. Yale Mfg. Co., 365 N.W.2d 176
(Mich. 1984)). The Sixth Circuit held that a plaintiff meets this test by showing:
(1) that the severity of the injury was foreseeable by the manufacturer; (2)
that the likelihood of occurrence of her injury was foreseeable by the
manufacturer at the time of distribution of the product; (3) that there was a
reasonable alternative design available; (4) that the available alternative
design was practicable; (5) that the available and practicable reasonable
alternative design would have reduced the foreseeable risk of harm posed by
the defendant’s product; and (6) that omission of the available and
practicable reasonable alternative design rendered defendant’s product no
reasonably safe.
Hollister v. Dayton Hudson Corp., 201 F.3d 731, 738 (6th Cir. 2000). A plaintiff
commonly shows that the defendant’s product suffered from a design defect under
the “risk-utility” factors “through a ‘battle of the experts,’ with both parties
introducing expert testimony concerning the efficacy and practicability of using a
certain design versus an alternative design.” Croskey, 532 F.3d at 516. The plaintiff
may also show that the defendant “knew or should have known about the risk [of
injury] by introducing evidence of similar incidents involving the [same product].”
Id. (Emphasis added)
B.

Manufacturing Defect

The plaintiffs also claim that Rodney’s injuries were proximately caused by
a manufacturing defect unique to the 10ML-II at issue. In Michigan, “[a]
manufacturer will be held liable for manufacturing defects existing at the time of
manufacture and sale.” Gregory, 538 N.W. 2d at 328 n.7. To prove a
manufacturing defect, a plaintiff “must prove a defect attributable to the
manufacturer and [a] a casual connection between that defect and the injury or
damage of which he complains.” Crew v. Gen. Motors Corp., 253 N.W.2d 617, 619
(Mich. 1977) (quoting Piercefield v. Remington Arms Co., 133 N.W.2d 129, 135
(1965)). When pursuing a manufacturing defect claim, the product at issue is to be
“evaluated against the manufacturer’s own production standards, as manifested by
that manufacturer’s other like products. Prentis, 365 N.W.2d at 182. A claim based
on a manufacturing defect is different than one premised on a design defect because
it “necessitates examination of the product itself rather than the manufacturer’s
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conduct.” Gregory, 538 N.W. 2d at 329, n.10. In other words, the trier of fact is not
required to make a reasonableness determination. The plaintiff must merely show:
(1) the product was not produced in conformity with the manufacturer’s
specifications, and (2) the defect proximately caused the plaintiff’s injuries.
Palatka v Savage Arms, Inc., et al., No. 12-1475, Sixth Circuit, August 9, 2013.
Plaintiffs have two causation experts. The proposed testimony of these experts was
discussed at length in the Sixth Circuit’s opinion:
The Plaintiff’s first causation expert, Dr. Clark Radcliffe, is a professor of
mechanical engineering at Michigan State University. After examining the firearm,
Dr. Radcliffe concluded that the entire 10ML-II product line suffered from a design
defect and that the particular 10ML-II Rodney used also suffered from a
manufacturing defect. In particular he concluded that the gun barrel failed because
a threaded hole installed at the rear of the barrel made the barrel weaker and more
susceptible to failure when fired. [footnoted omitted] (Emphasis added)
1.

Dr. Radcliffe’s Design Opinion

The 10ML-II is designed with a small hole near the base of the barrel. The
hole is located at the top-center of the barrel but does not extend through the barrel
wall. Because the hole is partially threaded along its depths, screws can be used to
attach various accessories, like a rear sight, to the gun. After examination, Dr.
Radcliffe opined that the 10ML-II product line was defectively designed because the
excess, unthreaded portion of the hole unnecessarily increases the stress on the barrel
during firing, leading to its failure. He ultimately concluded that the excess depth
of the hole directly contributed to the failure of the 10ML-II at issue. (Emphasis
added)
Pictures in Dr. Radcliffe’s report show that threads are only cut along half of
the hole’s depth. According to Dr. Radcliffe, this excess and unthreaded depth does
not help fasten a rear sight to the gun and, therefore, has no function. Rather, the
unthreaded portion only serves to increase the stresses on the barrel during firing.
Therefore, not only does the excess depth not provide any benefit to the gun, but it
actually makes it less safe to operate. In total, Dr. Radcliffe concluded that the
excess, unthreaded portion of the hole was an improper design that led to the barrel’s
failure and Rodney’s injuries. Dr. Radcliffe opined that the dangers associated with
the gun could be reduced, and the gun made safer, by eliminating the unthreaded
depth of the hole. In other words, the hole did not have to be eliminated entirely, but
the excess and unthreaded portion, which has no function, should be removed.
2.

Dr. Radcliffe’s Manufacturing Opinion
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Dr. Radcliffe also concluded that the particular 10ML-II Rodney used was
defectively manufactured. His manufacturing defect opinion is closely related to his
design defect opinion and again focuses on the hole at the rear of the barrel.
Dr. Radcliffe inspected the subject firearm, made measurements of the hole
at issue, and compared those measurements to design specifications produced by
Savage Arms during discovery. The design specifications stated that the maximum
depth of the hole should be 0.161 inches. The hole in the 10ML-II examined by Dr.
Radcliffe had a depth of 0.168 inches, or 0.007 inches deeper than specified. Based
on this difference, Dr. Radcliffe concluded that the additional depth increased stress
on the barrel when fired, leading to its failure . . .
Dr. Radcliffe wrote in his report and testified in the Daubert hearing that the
excess depth of the rear sight hole in the 10ML-II, as designed and actually
manufactured, increased stress on the gun’s barrel when fired. He concluded that the
additional stress caused by the excess depth of the hole was a “key issue” in the
gun’s failure. As for an alternative design, Dr. Radcliffe opined that Savage Arms
could have reduced the likelihood of barrel failure by making the hole shallower and
by manufacturing it with tools that created cut marks with rounded edges, rather than
the angular cut marks he observed. According to Dr. Radcliffe, these alternative
manufacturing practices and design would have decreased the stress on the barrel
when fired, reducing the likelihood of barrel failure. (Emphasis added)
To pursue a design defect, Michigan law requires a plaintiff to show, in part,
that “a practical and technically feasible alternative production practice was available
that would have prevented the harm without significantly impairing the usefulness
or desirability of the product to users and without creating equal or greater risk of
harm to others.” Mich. Comp. Laws § 600.2946(2). Dr. Radcliffe’s design opinion
complies with the requirements of Michigan Law and should not have been
excluded. Likewise, his manufacturing opinion is also admissible. As discussed
previously, a plaintiff proves a manufacturing defect by showing that the product was
not manufactured in conformity with the manufacturer’s specifications and that this
nonconformity caused the plaintiff’s injuries. Upon examination, Dr. Radcliffe
found that the rear sight hole in the 10ML-II at issue was deeper than specified, and
he reasoned that this additional depth increased stress on the barrel, resulting in its
failure and Rodney’s injuries.
Id.
Plaintiff’s other expert found a separate design defect and a separate manufacturing
defect:

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The Plaintiffs’ second causation expert, Dr. Martin Crimp, is also a professor
at Michigan State University. He was offered as an expert on materials science who
would testify about the structure and properties of the metal used to manufacture the
10ML-II. Like Dr. Radcliffe, Dr. Crimp also concluded that the entire 10ML-II
product line suffered from a design defect and that the particular 10ML-II Rodney
used was defectively manufactured. (Emphasis added)
I.

Dr. Crimp’s Design Opinion

The stainless steel version of the 10ML-II is designed to be manufactured
from 416R stainless steel. During his investigation, Dr. Crimp discovered that 416R
stainless steel is “martensitic,” meaning that it is created through a quench and
temper treatment. Martensitic steels are designed to have high strengths and to be
fracture resistant. The high “toughness” of martensitic steels makes them difficult
to machine and shape, however. To improve machinability, sulfur is added to
martensitic steels like 416R. This additional sulfur combines with manganese in the
steel to form manganese sulfide particles, which are hard, difficult to deform, and
adhere poorly to the surrounding steel. The sulfide particles create voids in the
microscopic structure of the steel, allowing it to be more easily machined.
According to Dr. Crimp, the improved machinability comes at the cost of increased
susceptibility to fracture. (Emphasis added)
Dr. Crimp examined sections of the barrel of the 10ML-II at issue using three
different techniques: reflected light optical microscopy, scanning electron
microscopy, and energy dispersive x-ray analysis. Each of these methods allowed
Dr. Crimp to examine the microscopic structure of the barrel and to observe the
arrangement of the sulfide particles in the metal. Based on his observations, Dr.
Crimp concluded that the sulfide particles in the 416R stainless steel caused the
metal to be “anistropic.” (Emphasis added)
“Anistropic” generally means that a material will have different properties
throughout the body of the material. In the case of the 416R stainless steel observed
by Dr. Crimp, the sulfide particles stretched along the length of the barrel. Based on
the presence of these “strings” of sulfides, Dr. Crimp concluded that cracks would
be expected to propagate down the length of the barrel as the gun is repeatedly fired.
To explain the anisotropic nature of the metal, Dr. Crimp compared the properties
of the barrel to those found in wood. Wood is anisotropic because it is easier to split
along the grains rather than perpendicularly to the axis of the tree. Therefore, wood
has different strength properties in different directions. In a similar way, Dr. Crimp
concluded that the “grains” of sulfide particles in the 416R stainless steel made it
weaker along the length of the barrel, which is the direction it split during Rodney’s
accident. In all, Dr. Crimp concluded that the anisotropic nature of 416R stainless
steel made it inappropriate for use in gun barrels and was a design defect in the

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10ML-II product line. He opined that the guns could be made safer by
manufacturing them from a different type of material. (Emphasis added)
2.

Dr. Crimp’s Manufacturing Opinion

Dr. Crimp also concluded that the 10ML-II used by Rodney was defectively
manufactured because chemical analysis of the barrel revealed that it contained
greater levels of sulfur than recommended for 416R stainless steel. According to Dr.
Crimp, properly manufactured 416R stainless is composed of 0.13 percent sulfur.
Chemical analysis of the barrel at issue showed that it contained 0.17 percent sulfur,
or 0.04 percent more sulfur than specified. Dr. Crimp concluded that the increased
sulfur content caused two defects in the barrel. First, it made the metal softer than
specified for 416R stainless steel. Second, an increased concentration of sulfur made
the metal more susceptible to intergranular fracture. (Emphasis added)
Material specifications provided to the Plaintiffs by Savage Arms indicate
that 416R stainless steel should have a Brinell2 hardness in the range of 235-277.
Because the section of the barrel subjected to hardness testing was of inappropriate
shape and size for Brinell testing, Dr. Crimp performed a Rockwell C hardness test.
Converting the results of the Rockwell C hardness test into Brinell units using an
appropriate method, Dr. Crimp found that the metal of the barrel at issue had a
Brinell hardness of 222, meaning that it was softer than the hardness specified for
416R stainless steel. Based on this result, Dr. Crimp concluded in his report that the
barrel had a Brinell hardness lower than the specified range.
In addition to a defect in the material’s hardness, Dr. Crimp concluded that
increased amounts of sulfur caused “intergranular fractures” in the barrel. The
intergranular fractures occurred in areas with high concentrations of sulfide particles.
The material fractured at those locations because the steel was unable to flow, or
flex, in the proper proportions (known as “plastic deformation”) when subjected to
stress. Describing the issue another way, Dr. Crimp concluded that the sulfide
particles are not ductile, meaning they do not deform under stress. As the
concentration of sulfur increases in the metal, more sulfides are created. This
increases the metal’s machinability but also increases the number of structural
weaknesses found in it. Without an appropriate amount of metal between the sulfide
particles to serve as a “ligaments,” which allow the metal to deform, the metal
becomes more susceptible to fractures. Based on the intergranular fractures Dr.
Crimp observed, he concluded that the barrel was metallurgically flawed, did not
conform to design specification, and was not proper for its intended use. . . .

2

The Brinell hardness scale is one of a number of measurements engineers use to categorize the
hardness of materials.

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First, after examining the barrel, Dr. Crimp found that the 416R stainless steel
was anisotropic. The sulfide particles in the metal created weaknesses running along
the length of the barrel, making it more susceptible to fracture. Dr. Crimp concluded
that these weaknesses, which were intentionally included in order to improve the
metal’s machinability, caused intergranular fractures in the material, rendering it
“flawed from a metallurgical standpoint.” Thus, the proximate cause of the barrel’s
failure, in Dr. Crimp’s opinion, was use of a metal that was inappropriate for gun
barrels. Second, Dr. Crimp testified at the Daubert hearing that other, less
anisotropic stainless steels exist and are used to manufacture gun barrels. His
opinion was that use of one of these types of stainless steels would make the barrel
less likely to fail. Accordingly, Dr. Crimp offered an opinion as to the proximate
cause of the barrel’s failure and an alternative design. (Emphasis added)
Rule 26(b)(1) of the Federal Rules of Civil procedure provides, inter alia, that parties
may obtain discovery regarding any matter relevant to their claim, including the existence,
description, custody, condition and location of documents or tangible things, as well as the identify
and location of persons who know of discoverable matter. Information is relevant if it would be
admissible at trial or appears reasonably calculated to lead to the discovery of admissible evidence.
Thus, it is readily apparent plaintiffs should have been able to learn of other stainless steel 10ML-II
barrels which exploded or suffered failures reflective of the design or manufacturing weaknesses
ascribed to them by plaintiffs’ experts. Obvious areas of concern would be incidents where firing
the weapon either caused the barrel to bulge, or caused it to explode and split lengthwise, thus
implicating the rear sight hole and/or the quality of the steel.
Needless to say, this information was in the hands of defendant.
On May 4, 2011, plaintiffs filed their First Motion to Compel Discovery Responses
to interrogatories submitted January 11, 2011, alleging in particular that defendant’s answer to
Interrogatory No. 2 to plaintiffs’ First Set of Interrogatories was inadequate. Interrogatory No. 2,
and defendant’s response, are set out below in their entirety:

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2.

Please provide the following regarding any and all accidents, complaints,

claims, lawsuits, and/or incidents of which you have knowledge or notice that
involved the same model or a model similar to the firearm that is the subject of this
action:
(a) the model and serial/identification number of the firearm involved;
(b) where the incident occurred, and a description of the circumstances under which
the incident occurred;
(c) the name and address of the complainant/claimant and person who was using the
firearm at the time of the incident;
(d) how and when you became aware of the accident, complaint, claim, lawsuit,
and/or incident (e.g., correspondence, press, verbal notification, etc.) and produce a copy
of any documentation, irrespective of whether the same exists in paper/print or digital
form. that evidences how you learned of the incident; and,
(e) if a lawsuit or claim of any kind resulted, please identify the court, tribunal, or
other context in which the matter was brought or now remains pending; the file or case
number; and the lawyer(s) or advocates representing the opposing party.
ANSWER:

Defendant objects to this demand on the grounds that it is overly
broad and vague. Defendant also objects on the grounds that this
demand is unlimited in scope and is not limited to substantially
similar designs and to the same circumstances and the same cause.
Defendant objects to this request because there has never been a legal
finding to establish the cause of any alleged other complaints.
Defendant objects to the request for materials that are irrelevant and
that are not reasonably calculated to lead to the discovery of
admissible evidence. Defendant contends that information involving
dissimilar products would not be admissible at trial and therefore its
production and discovery would be abusive. Defendant objects to the
extent that information is requested that was generated subsequent to
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the date of sale of the plaintiffs’ muzzleloader. Defendant objects to
the extent this demand and interrogatory seeks information protected
from disclosure by the attorney-client, work-product or consulting
expert privileges. Defendant objects on the grounds that his request
calls for the defendant to speculate. Without waiving the foregoing
objections, Defendant has been presented with two lawsuits,
subsequent to the sale of Mr. Palatka’s muzzleloader where users
overloaded or improperly loaded their muzzleloaders and destroyed
the barrel. In addition, both incidents occurred subsequent to the sale
of the muzzleloader being used by Plaintiff. One action is Hawks v.
Savage and the other is Tardif v. Savage. Please see the complaints
in those matters at PS-0003 to PS-0023.
In short, in response to plaintiffs’ interrogatory asking about any “accidents,
complaints, claims, lawsuits and/or incidents of which you have knowledge or notice” that involved
the same or similar models as plaintiff’s 10ML-II, together with contact information, Savage limited
its response to two lawsuits both involving destroyed barrels, Hawks v. Savage,3 and Tardif v.
Savage.4 Of course, these were already matters of public record.
A hearing on plaintiff’s motion to compel was held on June 7, 2011.
It was clear that from the beginning plaintiffs sought to learn about other incidents
that would reveal the defective nature, if any, of this firearm, and that defendant’s original response
was to identify only two incidents, both of which were in litigation. The Court began the hearing
by noting that defendant had identified two lawsuits and asked plaintiffs’ counsel why that was
insufficient as far as plaintiffs were concerned. Plaintiffs’ attorney responded that he had been in
direct contact with other individuals who had corresponded with Savage regarding failures of the

3

Hawks v. Savage Arms Company, Inc. was a Tennessee case filed in the Madison County Circuit
Court on November 6, 2008, in which it was alleged that on November 9, 2007, the Savage Arms 10MLII muzzle loader barrel exploded and blew off Mr. Hawks’ thumb.
4

Tardif v. Savage was a Canadian case in which it was alleged that on March 8, 2009, the barrel
of a Savage 10ML-II exploded, and plaintiff’s left index finger was blown off. Defendant was notified on
May 6, 2009.

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same gun, and that he was looking for information that would be kept by Savage regarding
complaints received from parties even if those matters never resulted in litigation. June 7, 2011
Hearing Trans. at 7-8 (docket no. 72). Defendant’s attorney was then given an opportunity to
respond.
MR. MALSCH:
Sure, Your Honor. The standard with respect to
discovery of other claims is that it must be shown that the circumstances surrounding
the other accidents are similar enough that discovery concerning those incidents is
reasonably calculated to lead to the uncovering of substantially similar occurrences,
and that's Lohr versus Stanley-Bostitch, a Western District case in 1991. We have
provided plaintiffs' counsel with the other claims that we believe are substantially
similar or even close to that.
The request or the interrogatory is clearly overly broad. I mean, it asks for
all other claims. So that would include, you know, problems with a trigger, problems
with a stock, failure to fire, all kinds of things that gun manufacturers typically get
complaints about. You know, accuracy, anything like that could be covered by this
interrogatory. We objected on those grounds but then took it to mean that they were
looking for substantially similar claims, which is what we provided.
Mr. McCarthy references other persons that they are in direct contact with
that have allegedly contacted Savage either in phone or in writing. We're not in
possession of any of that material. Plaintiffs' counsel hasn't disclosed any of that
material to us, so I'm not sure what letters or correspondence he is referring to. If
he's in contact with these people and he has copies of letters to Savage, I would have
thought they would have disclosed that as well. But we searched for that type of
material, Your Honor, when we initially responded, and we provided what we had.
With respect to barrel failures. We -THE COURT:
You're saying that every complaint you have received
about barrel failures of this particular type of gun have been disclosed?
MR. MALSCH:
As of the date we did the supplemental interrogatory
response. I don't know when the last time we checked with our client. I mean, if
they received something within the last week or two, we may not have disclosed that
yet. But certainly we have an obligation to continue to supplement all requests, and
we'll do that, obviously, as litigation proceeds.
THE COURT:
Well, I am looking at page 9 of Exhibit A, docket
number 40 [Plaintiffs’ Motion to Compel]. Is that your most recent answer or is
there a supplemental answer?
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MR. MALSCH:
May 18th, Your Honor.

The most recent supplement would have been dated

THE COURT:

I don't know when this was dated, so --

MR. MALSCH:

I'm sorry. I believe it's the one you're looking at.

THE COURT:

All right. So basically you've identified two lawsuits?

MR. MALSCH:

Correct, Your Honor.

Id., 8-10 (emphasis added).
It was readily apparent from the tenor of the defense attorney’s remarks that he was
representing to the Court that while he objected to providing claims from customers about unrelated
gun problems pertaining to triggers, stocks, accuracy, etc., the defendant took plaintiffs’ request to
mean that it was looking for substantially similar claims “which is what we provided.” “. . . we
searched for that type of material, Your Honor, when we initially responded, and we provided what
we had.” Id., at 9.

THE COURT:

You’re saying that every complaint you received about
barrel failures of this particular type of gun have been
disclosed?

MR. MALSCH:

As of the date we did the supplemental interrogatory
response. I don’t know when the last time we checked
with our client. I mean, if they receive something within
the last week or two, we may not have disclosed that
yet. . . .

Id., at 9.
The Court specifically asked Savage’s attorney whether Savage knew of any other
incidents of barrels exploding:

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THE COURT:

And you’re telling the Court that Savage has never received
any other complaints or claims or anything of that nature
regarding barrel explosions or guns exploding – barrel
exploding, pardon me – on this type of weapon?

MR. MALSCH:

I am saying we have no records of receiving any such
correspondence or communications.

Id., at 10.
Savage’s statements to the Court could not have been clearer.
They were also a blatant misrepresentation of the facts.
In reality, as the Court and the plaintiffs would come to learn over the next four years,
defendant at that very moment had in its hands complaints from customers dating as far back as
2007, about other exploding 10ML-II stainless steel gun barrels. In fact, Savage had responded to
complaints about at least six 10ML-II stainless steel barrels with split barrels the preceding year
(2010) alone,5 and to another in June of 2011,6 and to another in just the month preceding the
hearing, May of 2011,7 There were two more in 2007,8 two more in 2008,9 and two in 2009.10
Unfortunately, it appears that some of these, like the stainless steel muzzleloader with the split barrel
returned by Winks Sporting Goods on December 15, 2009, which was obviously known to Savage,
never surfaced in discovery until February 14, 2014 (docket no. 380-13). Another stainless steel

5

Whetstone; Hood; Hudson; Methivis; Flores; Summers, infra

6

Sproule, infra

7

Proctor, infra

8

HG&H Sports, infra; Hamric

9

Vance; Gee

10

Reid, Winks Sporting Goods, infra

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split barrel not made known to plaintiffs until that same time, was returned to Savage by H & H
Sports on October 25, 2007 (docket no. 334, Exh. 41).
And all of these gun mentioned above that had to be returned to Savage because of
barrels that split, do not include gun barrels that had to be scrapped during the same period because
bulges developed in the barrels after they were fired, even though, fortunately, the barrels did not
explode in those instances.
Further, as far as Savage’s continuing obligation to supplement their interrogatory
response while the litigation was proceeding in this court was concerned (which Savage’s attorney
acknowledged on the record, supra), defendant failed to do this in a timely manner on various
occasions as well. For example, additional exploded stainless steel split barrels were reported to
Savage on July 19, 2011,11 on February 6, 2012,12 and on May 24, 2012.13 Even allowing for the fact
this case was on appeal to the Sixth Circuit from approximately April 17, 2012, to September 24,
2013, all of these new examples of split barrels were withheld from plaintiffs until February 2014,
well after the case had returned from the Court of Appeals.14 Indeed, discovery concerning the split

11

Stephen L. Frantz reported his stainless steel muzzleloader split barrel to Savage on July 19,
2011, the very month following the initial court hearing on Interrogatory No. 2.
12

Rider’s Choice reported its stainless steel split barrel muzzleloader to Savage on February 6,

13

The Outdoorsmen Shoppe reported a stainless steel split barrel muzzleloader to Savage on May

2012.

24, 2012.
14

A Notice of Appeal to the Sixth Circuit was filed on April 17, 2012, and the case was reopened
in this Court following the mandate of the Sixth Circuit on September 24, 2013. During the time this case
was pending at the Sixth Circuit, the parties would not be expected to update their discovery responses in
this court. Once the case was returned to this court, however, normal pretrial litigation obligations
resumed.

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barrel returned to Savage by Stephen Frantz on July 19, 2011 was withheld from plaintiffs for over
a year!
Particularly telling in this regard is the story of Mr. Owens. Ronald W. Owens, Sr.
lives in Indiana and is a member of the Daniel Boone Gun Club and Range located in Chandler. On
November 13, 2013, he was attempting to target his Savage Arms 10ML-IISS muzzleloader at the
club’s range, when the barrel exploded, blowing off part of his left index finger. Owens was taken
by ambulance to receive medical treatment.
Of specific interest to the present case is that Mr. Owens’ barrel was completely split,
with the greatest dimension of the split being the location of the factory-drilled rear sight mounting
hole.
During November and December 2013, Owens engaged in a series of
communications with Joseph DeGrande, who arranged to pick up the exploded firearm from Mr.
Owens’ residence. According to his affidavit, Owens found that after Savage took possession of his
firearm, his communications with DeGrande became unproductive. Mr. Owens then retained legal
counsel and, by letter, advised Savage to preserve the exploded firearm.
None of this information was communicated to plaintiffs. Indeed, quite the contrary.
On February 17, 2014, defendant provided to plaintiffs for the first time a sheet of paper stating it
had received Owens’ firearm in fair condition with no barrel splits or bulges. (Three months later,
on or about May 27, 2014, Savage also supplied Owens’ address, without any telephone or email
contact; but defendant still said nothing further about the real condition of the gun.) Plaintiff only
learned of Mr. Owens’ injury independently of the defendant, and brought it to the Court’s attention

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in their supplemental brief in support of their renewed motion for default judgment, filed on
September 11, 2014.15
It might be of some cold comfort if Savage could say it is as shocked as the Court and
plaintiffs are at the belated revelation of these other destroyed stainless steel muzzleloader barrels
– perhaps because they were all locked away and forgotten about in a fruit cellar somewhere, and
then just re-discovered – but that would not even be close to the truth. None of this was a mystery
to Savage. The bulk of Savage’s customer records, at least well into 2013, were handled on a
continuous and ongoing basis by Joseph DeGrande, its long serving Customer Service Director.
DeGrande also kept a phone log of calls received from customers complaining about their guns, and
was a person who frequently communicated at length with customers about their problems. Indeed,
Mr. DeGrande was twice put forward by defendant as its Rule 30(b)(6) witness. Savage’s initial
failure to acknowledge the existence of similar gun barrels exploding, and then only dribbling out
such information in small pieces, all points to a systematic pattern of delay for the purpose of
impeding the preparation of plaintiffs’ case.
The following discusses in more detail some of the incidents noted above.
Notwithstanding Savage’s unequivocal statement to the Court in June, 2011, that it
had no records (other than the two lawsuits) of receiving any correspondence or communications
regarding barrel explosions on this type of weapon, in fact it had already received two complaints
about stainless steel 10ML-II gun barrels exploding that very year. Less than two weeks earlier,
Savage had received a letter from the attorney for Mr. Trent Proctor, dated May 25, 2011,

15

Savage has since acknowledged failing to produce discovery of this incident as it should have,
explaining that the material became lost when it was put in the hands of its attorneys.

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concerning the personal injuries his client had received from an exploding 10ML-II stainless steel
barrel. And less than five months before that, Savage had received the letter of Mr. Nicholas
Sproule, dated January 4, 2011, seeking damages for injuries he suffered when the barrel of his
Savage 10ML-II had exploded the preceding December 23, 2010. Included in Sproule’s letter was
a picture of the top of the barrel, the rear end of which was split open lengthwise. Sproule said his
local gun shop, where he had purchased the weapon, had told him that another stainless steel barrel
had exploded as well. Mr. Sproule’s letter led to an exchange of telephone calls and emails with
customer service director Joseph DeGrande. These calls continued at least until February 25, 2011,
with Sproule and Savage attempting to reach an agreement. (Sproule wanted $1,000 to “disown it
and not show it to anyone.”
Although Savage produced the initial letters from Sproule and Proctor on July 6,
2011, no explanation was provided as to Savage’s misrepresentation to the Court the preceding
month. In any event, discovery closed August 31, 2011.16 And by this date, Savage had
acknowledged, besides the two lawsuits, just two other instances of ever receiving complaints about
its stainless steel barrels exploding on it muzzleloaders. These were Sproule and Proctor. In terms
of lack of disclosure, however, Sproule and Proctor were just the tip of the iceberg.
Complaints from four more customers with 10ML-II stainless steel barrels which had
exploded were first provided to plaintiffs on December 8, 2011, six months after the June 2011
hearing. All four were known to the defendant well before that, and well before it had received
Interrogatory No. 2; indeed, one of these went as far back as 2007. All four of these muzzleloaders’
barrels split lengthwise, in the nature discussed by Dr. Crimp. The four are set forth below:

16

CMO, docket no. 10, August 26, 2010.

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(1)

Homer Hamric sent his 10ML-II into Savage Arms on January 17, 2007, with

a 15" rupture in the barrel.
(2)

James Vance sent his 10ML-II with a burst barrel into defendant Savage on

February 1, 2008.
(3)

James Gee’s Savage 10ML-II rifle with a barrel split wide open was received

by Savage on January 1, 2008. The tear in the barrel propagated through the rear sight hole.
(4)

Bernard Methiver’s Savage 10ML-II, with a barrel split open, was received

by the defendant on February 8, 2010. Interestingly, the greatest bulge in the split barrel was also
at the location of the rear sight hole, which was split in half. Docket No. 369, Exh. B.
Each of these complaints had been dealt with at length by DeGrande, as evidenced by his 7
to 9 page report on each one. Yet, despite the fact all of these guns had failed prior to the filing of
the present case and were well known to Savage, these names were not produced until defendant’s
30(b)(6) deposition in December 2011, nearly a year after Interrogatory No. 2 had been served and
six months after the June 2011 hearing. And well after discovery had closed.
The 30(b)(6) deposition witness for Savage was Joseph DeGrande. As director of
customer service for Savage, DeGrande was also personally in charge of handling customer service
issues and complaints. DeGrande testified there were many contacts between Savage and other
owners of this firearm experiencing difficulties, and that it would have taken very little time to
search the records of these 10ML-II contacts. He said he simply did not do that because Savage did
not feel the claims were substantial.
After the first Rule 30(b)(6) deposition, defendant supplemented its production and
ultimately produced a list of 13 persons (which included 8 names previously mentioned), with

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complaints about the stainless steel 10ML-IIs that resulted from barrel problems. In addition to the
previously disclosed complaints,17 new names included Octave Flores, Barrie Reid, Chris Hood,
Simon Whetstone and Steve Hudson. Like the first eight customers, these additional five disclosures
had also been known to Savage long before Interrogatory No. 2 was submitted to it in January 2011,
and long before Savage’s attorney told this Court, in June 2011, that “we have no records of
receiving any such correspondence or communications.”
But even when producing some of these new names, defendant’s lack of candor was
breathtaking. Simon Whetstone and Octave Flores had each turned in a defective 10ML-II stainless
steel muzzleloader in 2010, on September 22, 2010 and April 28, 2010, respectively. On each
occasion Savage had filled out its usual Firearm Receiving Checklist. The checklist Savage
prepared for Mr. Whetstone’s gun showed it to be in “good” general condition with no barrel split
nor barrel bulges. Likewise, the general condition of Mr. Flores’ gun was described as “Fair” but
with no barrel split or bulged barrel. This was the information Savage, first, failed to produce in
response to the January 2011 Interrogatory No. 2; second, told the Court in June 2011 did not exist;
and third, finally produced in December 2011. And in both instances, the information provided in
December 2011 was simply false.
What Savage did not produce until 2014 regarding Whetstone and Flores was the
following: In regard to Mr. Whetstone, there was a Phone Log Report written by Joseph DeGrande
on October 26, 2010 (less than three months prior to the interrogatory), stating that Whetstone’s
muzzleloader “literally exploded” and that the “barrel blew in front of him.” Whetstone reported to

17

Hawks, Tardif, Sproule, Proctor, Hamric, Vance, Gee and Methiver

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DeGrande that his “face was burnt with powder and his ears are still hurting.” The year 2014 was
also the first time plaintiffs were provided Whetstone’s contact information.
In regard to Octave Flores, internal correspondence between senior people at Savage,
dated August 15, 2012, finally surfaced in early 2014, revealing the fact that the barrel of Octave’s
gun had, in fact, burst back in 2010. Appendix to Plaintiffs’ Renewed Motion for Default Judgment,
Exh. 30.
Savage had also received Steve Hudson’s 10ML-II on September 22, 2010, less than
four months before the Palatkas submitted their interrogatory to Savage. According to Savage’s
Firearm Receiving Checklist provided plaintiffs after the Rule 30(b)(6), the gun had a split barrel
and, per Joseph DeGrande, the barrel was going to be scrapped shortly thereafter on October 5,
2010. Several years later, in 2014, when plaintiffs finally received correspondence Steve Hudson
had sent to Savage, they learned that this gun “blew up” the second time Hudson fired it. Plaintiff’s
Exhibits Vol., Exh. 28.
Barrie Reid turned in his gun to Savage on December 8, 2009, with a split barrel. In
a separate report they received three years later from Savage, plaintiffs learned that the firearm had
been scrapped two days after it had been received. Appendix to Plaintiffs’ Renewed Motion for
Default Judgment, Exh. 33.
Chris Hood sent in his muzzleloader to Savage on November 18, 2010, shortly before
defendant received Interrogatory No. 2. Savage’s own Firearm Receiving Checklist notes that the
barrel was split. Again, plaintiffs only learned several years later that the original had been scrapped
and replaced. None of this was learned by plaintiffs until after the first 30(b)(6) deposition.

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Of course, it was too late to depose the 30(b)(6) witness as to those new disclosures
since they had been withheld until after that deposition had taken place. Over a year had passed
since plaintiffs had submitted their Interrogatory No. 2 to defendant, and plaintiffs had received only
thirteen names of other stainless steel 10ML-IIs with split barrels, eleven of those after Savage had
originally denied their existence.
Plaintiffs moved for a default judgment (docket no. 133) because of defendant’s
failures to comply with discovery as required by the rules and the Court’s orders. While the Court
did not feel defendant’s shortfalls in meeting its discovery obligations merited such a sanction at that
time, other discovery relief was provided, including, inter alia, the requirement that defendant’s
30(b)(6) deponent be produced for a continuation of his examination regarding “supplemental
discovery produced by defendant after the initial 30(b)(6) deposition and regarding any other
complaints or inquiries about defective or damaged 10ML-II barrels ever brought to defendant’s
attention by dealers or customers at any time, and not previously provided to plaintiffs.” Order,
April 5, 2012. This order, of course, was not a new obligation but a reaffirmation of an old one.
Nor, as it turns out, was it sufficient to obtain defendant’s compliance.
DeGrande maintained several databases, and a further search of the databases,
according to plaintiffs, led to the production of over 2,000 additional pages of documents concerning
barrel problems, from nearly 1,000 customers. These were computerized Firearms Receiving
Checklist Details documents and Phone Log Reports related to damaged 10ML-II barrels.18 They
were emailed to plaintiffs’ counsel on either February 14 or February 17, 2014.
18

Obviously, Savage, through its Customer Service Director must be charged with knowledge that
a thousand reports were missing, if only a dozen had been forthcoming thus far. However, it appears that
in determining what to produce in response to discovery, DeGrande was working at the direction of
company attorneys. See, e.g., DeGrande Deposition Trans. of February 19, 2014 at 5-13.

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It is inconceivable to the Court that the defendant’s 30(b)(6) witness had
“overlooked” conducting a search of these databases during the period of well over one year the
hotly contested discovery had been occurring. DeGrande had dealt with these databases for some
years. See, for example, a Checklist filled out on a stainless steel muzzleloader returned on October
25, 2007, by HG&H Sports because of a split barrel, directed to “ATTN: JOE DEGRANDE,” that
surfaced on February 14, 2014 (docket no. 334, Exh. 41). When it is remembered that DeGrande
constantly worked with these checklists, and had pulled some out, albeit belatedly, for earlier
discovery, the only reasonable conclusion is that Savage purposely chose to ignore these databases
in responding to discovery. As more of the iceberg continued to be exposed, it necessitated another
deposition of Savage’s 30(b)(6) witness. But, it turns out, even this would not be the last of the
overdue discovery produced.
In its Order of May 12, 2014 (docket no. 327), the Court reviewed some of
defendant’s past failures to provide discovery, and steps the Court had taken to address them. The
Court began by noting in the Order that plaintiffs were entitled to any complaints or inquiries about
defective or damaged 10ML-II barrels ever brought to defendant’s attention by dealers or customers
at any time. The Court then continued:
Clearly plaintiffs were entitled to such information if they are going
to be able to factually establish substantially similar situations. This
information is also relevant if may lead to information about the
sufficiency of the 416R stainless steel used in the exploding barrel of
the gun. The quality and characteristics of this steel for gun barrel
purposes is an issue in this case, although its use in gun barrels may
have been substantially reduced subsequently. Plaintiffs’ ability to
contact other gun owners directly impacts their ability to find out
facts pertaining to these potential issues, and to date, Savage has been
extremely resistant to providing such information.
....

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More recently, defendants did provide plaintiffs with what has been
marked Exhibit C and D to plaintiffs’ present motion to compel.
Exhibit C consists of hundreds of pages of Firearm Receiving
Checklists, and Exhibit D are telephone logs of Mr. DeGrande of
customer contacts. Mr. DeGrande indicates that none of the other
customer service representatives who worked for him kept phone
logs.
Notwithstanding this recent production of what appears to be several
thousand reports of contacts by customers with problems with the
10ML-II, however, not a single customer’s address or other contact
information was provided. Also, while these reports document
letters, complaints or inquiries received from customers, not a single
such underlying letter, complaint, or inquiry has been provided.
Thus, these reports are simply evidence of discovery material in the
possession of Savage which Savage has not produced.
Defendants’ resistance to providing discovery is again evident,
notwithstanding the voluminous material it has now decided to
produce and should have produced at the outset. At this late stage in
the proceedings, and with trial next month, the Court might well be
justified in imposing sanctions against Savage on the issue of
liability, in the nature of taking as established certain designated facts
as to the adequacy or inadequacy of the 416R stainless steel, or
prohibiting Savage from opposing claims about the barrel or from
introducing designated matters in evidence pertaining to the same,
see F.R.C.P. 37(b)(2)(A)(i) and (ii). This could be fairly based, for
example, on the fact that a number of people contacted the company
as indicated by the reports in Exhibit C and have reported bulges in
the barrels of their muzzleloaders – an abnormality, to be sure – but
the contact information of these people even to this day has not yet
been provided to plaintiffs. See Interrogatory No. 2 to Plaintiffs’
First Set of Interrogatories.
....
Defense counsel has candidly acknowledged that they do have all the
contact information for each of the persons and for each contact
identified in the reports contained in Exhibits C and D to plaintiffs’
motion.
Defendant did comply with this Order by providing the contact and communications
(written or oral) from their customers, as directed. On May 27, 2014, Savage produced an additional

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4,840 pages of new documents it had previously withheld from discovery.19 Plaintiffs contend these
latest 4,840 pages reveal, even past the eleventh hour, not only defective barrels which were not
previously disclosed, but disclosed ones which were much worse than defendant had earlier
admitted.
The following examples show Firearms Receiving Checklist Sheets for 10ML-II
muzzle loaders which plaintiffs received as late as February 14, 2014, which still failed to mention
any barrel defect. Each Checklist specifically states that the barrel was neither split nor bulged.
(Nor do the Checklists yet provide addresses for customers, as sought back in Interrogatory No. 2
in January 2011.) However, documents produced three months later, subsequent to the Court’s May
12, 2014 Order, show companion Checklists significantly enhanced with annotations, showing the
guns were returned because of defective barrels.
For example, defendant’s February 14, 2014 production contains a Checklist showing
Michael Woodruff, address unknown, returned his stainless steel muzzleloader on January 19, 2010
because the scope mount holes were off center. Otherwise, the gun is described as in fair condition
with the barrel having no split or bulge. Only in its May 27, 2014 discovery production did Savage
produce a different version of the Checklist, revealing the real defect in the gun was that the barrel
bulged. Indeed, the barrel had to be, and was, scrapped, January 26, 2010, the year the present
lawsuit was filed and prior to Interrogatory No. 2.

19

Sometime on May 28, 2014 or thereafter, defendant also produced for the first time a sheet
containing a partial list of code numbers, identifying the significance of various “defect codes” on the
Firearms Receiving Checklist finally divulged three months earlier. Absent an explanation of these
numeric codes, portions of the Firearms Receiving Checklists were literally “encoded” and therefore
meaningless (some checklists identified a defect in writing; others bore just a number). Two of these code
numbers are particularly significant. Defect Code No. 128 signifies a barrel that has split open, and
Defect Code No. 130 signifies a barrel that has bulged out.

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Similarly, Savage’s February 14, 2014 discovery production contained a Checklist
showing a Darrel Donaldson, no address provided, returned a stainless steel muzzleloader on June
18, 2007. The reason given was “no standard,” but otherwise the Checklist said it was in fair
condition with no bulge or split in the barrel. Again, Savage failed to produce until May 27, 2014
a different Checklist revealing the barrel bulged. Docket No. 334, Exh. 5; Docket No. 379, Exh. 2.
Savage’s Checklist for Steven White, no address given, for a stainless steel
muzzleloader returned to defendant on March 18, 2010, like the one for Darrel Donaldson, infra,
shows that the gun was in fair condition with no split or bulge in the barrel. The reason for the
return was given as “no standard.” This Checklist was not produced until February 14, 2014. Three
months later, on May 27, 2014, defendant produced a different Checklist showing there was actually
a bulge in the barrel. Docket No. 334, Exh 10; Docket No. 379, Exh. 7.
Bruce Garrett also returned his stainless steel muzzleloader to Savage in 2010, prior
to the filing of the present lawsuit. On the Checklist showing a return date of April 26, 2010, and
not divulged by defendant until February 14, 2014, the gun is described as being in fair condition,
albeit with some stock damage, but no bulge or split in the barrel. On May 27, 2014, Savage
produced a Checklist showing that, in fact, the barrel was bulged and that it was scrapped ten days
after it was returned to defendant. Docket No. 334, Exh. 11; Docket No. 379, Exh. 8.
On November 6, 2012, while this case was pending at the Sixth Circuit, Autumn Sky
Outfitters returned a stainless steel muzzleloader to Savage. Unlike some of the defective barrels
listed above that Savage had known about even before this lawsuit, but not revealed until February
14, 2014, this barrel was destroyed more recently. On February 14, 2014, nearly five months after
the case had returned to this Court, and pursuant to its ongoing obligation to disclose, defendant

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finally provided plaintiffs with the Checklist sheet pertaining to this gun. The sheet said the gun had
a bulge in the barrel. It was not until three months later, on May 27, 2014, that a second Checklist
was produced (among nearly 5,000 new documents) showing the defect code (number 128) for an
actual split in the barrel. Docket No. 334, Exh. 24; Docket No. 379, Exh. 21, 22.
Indeed, the mountain of discovery produced on May 27, 2014 also contained names
of others who had returned their damaged stainless steel barrels to Savage, who had never been
made known to plaintiffs prior to that time, notwithstanding defendant’s discovery obligations and
the Court’s orders. These include, for example, Joseph Foss, who returned his bulged barrel on
September 8, 2010, and received a replacement, and The Gun Shoppe at Coventry, which returned
a gun on January 17, 2007 with a bulged barrel. Docket No. 334, Exhs. 21 and 29; Docket No. 379,
Exh. 26. And mentioned earlier was the fact that defendant withheld its Defect Codes until May 28,
2014, which rendered its Firearm Receiving Checklists partially encoded, and, as a practical matter,
deceptive. For example, on July 15, 2013, Michael Jenkins returned his stainless steel muzzleloader
to Savage. The intake Checklists (furnished to plaintiffs on February 14, 2014) listed as the reason
that the rifle failed to group its shots. Otherwise it was described as being in fair condition, with no
bulge nor split in the barrel – certainly nothing to raise a red flag with the plaintiffs. Only when they
obtained the key to the defect codes three months later, did they learn that defect code number “128"
on page two of the Checklist meant the barrel had actually split, contrary to what the front page of
the Checklist stated. Docket No. 334, Exh. 36. Of course, Savage must have known how
misleading the Checklists were without the defect codes (only a partial list of which has been
furnished even to this date).

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The same thing occurred when Garry Summers turned his damaged muzzleloader in
to Savage on September 15, 2010. The Checklist said on the face page that the barrel was not split
(nor bulged), but Defect Code 128 was listed on page two. Docket No. 334, Exh. 43. A virtually
identical example occurred when Riders Choice Cycle Parts turned in a stainless steel muzzleloader
on February 6, 2012, and the only indication on paper that the gun was actually destroyed by the
barrel being split (and then only to the trained eye) was the “128" on page two. Docket No. 334,
Exh. 44.
In the case of Stephen L. Frantz, who returned his destroyed stainless steel
muzzleloader on July 19, 2011, plaintiffs would have been aware the reason was a bulged barrel
from reading the front of the Checklist, which they received on February 14, 2014. But hidden from
them for three months, until May 28, 2014, would have been the significance of the “128" on the
next page, indicating the barrel had actually been split. Docket No. 334, Exh. 39. A virtually
identical incident happened the following year when The Outdoorsmen Shoppe sent back a ruined
stainless steel barrel on a muzzleloader on May 24, 2012. The Checklist sheet marked the defect
as a bulge, but the Defect Code on page two (“128") said it was really a split barrel. Docket No.
334, Exh. 42.
Savage’s efforts to obfuscate discovery have spilled over into the production of
witnesses as well, or lack thereof; first by defendant being unable to identify employees who
operated its precision drills, and then by failing to produce employees for examination regarding the
drilling of holes in the top of the gun barrels, as ordered by the Court. This has been the subject of
previous motions. Similarly, DeGrande, who testified as the company’s 30(b)(6) witness, and had

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years of personal knowledge as the Director of Customer Service, could not testify as to what
happened to customer service correspondence after one year.
It is not enough to say, at this late hour in the proceedings, that what amounts to be
a purposeful record of obfuscation is harmless error, since plaintiffs may now have all the discovery
they sought (if that is in fact the case). To say this would be to render a party’s discovery
obligations under the Federal Rules of Civil Procedure without purpose.
Forcing plaintiffs to repeatedly file motions to obtain discovery defendant clearly
possessed beginning at least as far back as three years prior to the filing of this lawsuit (being reports
of similar defective and exploding gun barrels), and then failing to timely supplement discovery as
a matter of course, cannot be countenanced if the rules are to serve their intended purpose. To do
so while telling the Court such records do not even exist, is simply intolerable. The extensive
number of documents defendant has filed recently cannot be considered as compliance with its long
overdue discovery obligations. Rather, they are evidence of its failure to comply, by deliberately
withholding evidence it had and denied having, until its production has become almost meaningless.
This is particularly the case with contact information of other customers whose
stainless steel muzzleloader barrels have also exploded and split (or bulged) when they were fired.
Plaintiffs clearly sought access to those people to build their case, and Savage has impeded plaintiffs
at every turn, while maintaining an aura of cooperation. First, Savage raised every conceivable
objection in its answer to Interrogatory No. 2. Next, Savage said in open court it knew of no other
similar instances (except the public lawsuits it could hardly disavow). Then, prior to the close of
discovery, Savage admitted there were two more, Sproule and Proctor, for a total of four.

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Later, in early December 2011, close to a year after Interrogatory No. 2, four more
instances trickled out of stainless steel muzzleloaders exploding and splitting their barrels. All of
these gun barrels had burst long before Savage had told this court (in June, 2011) that it had received
no complaints or communications regarding such incidents. In fact, all had occurred before this
action was even filed, as Savage and DeGrande well knew. Mr. DeGrande had written a lengthy
report on each one. Now the trickle had increased to eight, but no contact information was
forthcoming.
After Mr. DeGrande testified at the first Rule 30(b)(6) deposition in December 2011,
and it was too late to question him further, Savage produced five more names. There was
accompanying information, but some of it was simply not true and there was no contact information.
Thus, long after discovery had closed, Savage had provided only thirteen other
instances of a similar nature, and no contact information, and this only under pressure from the
Court. Savage was stonewalling. Even today, after 6,000-7,000 documents have been produced,
and defendant has finally provided its client lists, new names of persons with exploded stainless steel
barrels continue to surface.
The discovery defendant produced in May 2014, while complying with the Court’s
order ultimatum to provide contact information now years over due, has also somewhat surprisingly
brought into sharp focus the overall inadequacy of any meaningful and timely production of
discovery material by defendant in this lawsuit, to which plaintiffs are entitled. See Rule 26(b) and
(e). Defendant has effectively but wrongfully blocked plaintiffs’ investigation and preparation of
their case by failing to timely disclose, and supplement, required information. This failure has been
neither justified nor harmless. See Rule 37(c).

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Accordingly, plaintiffs’ motion is GRANTED, and the following sanctions are
imposed:

The findings and conclusions of Dr. Clark Radcliffe as to the design defect of the

stainless 10ML-II product line, and the manufacturing defect of the 10ML-II used by plaintiff; and
the findings and conclusions of Dr. Martin Crimp as to the design defect of the stainless steel 10MLII product line and manufacturing defects of the 10ML-II used by plaintiff; all as more fully set forth
in the Sixth Circuit’s decision discussed above, shall be designated as facts taken as established for
purposes of this action, as plaintiffs’ claim, and defendant is prohibited from opposing these claims
at trial or introducing any evidence to that end, see Rule 37(b)(2)(A)(i) and (ii);
Further, any orders sealing the records as to defendant’s customers, and to any
exhibits pertaining to those customers, are hereby lifted to the extent necessary to permit plaintiffs
full access to any of these persons or entities to investigate and/or prepare for and try this case;
Further, plaintiffs are entitled to payment of reasonable expenses, including
attorney’s fees, in bringing this motion. In the event the parties cannot agree upon the amount,
plaintiffs shall file within twenty-one (21) days of this order, an affidavit and any supporting papers
identifying the costs they seek. Defendant shall have fourteen (14) days thereafter to respond in
kind. The Court will decide the matter on the papers unless it believes a further hearing is necessary.
IT IS SO ORDERED.

Dated: March 31, 2015

/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge

30