Guay v. Sig Sauer, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kyle Guay
v. Civil No. 20-cv-736-LM
Opinion No. 2022 DNH 086 P
Sig Sauer, Inc.
O R D E R
Plaintiff Kyle Guay sues defendant Sig Sauer, Inc., alleging that his Sig
Sauer P320 pistol discharged without a trigger pull and shot him in the leg while he
was removing the holster from his belt. Among other causes of action, Guay brings
a products liability claim and an intentional infliction of emotional distress claim.
He seeks to introduce into evidence the deposition transcripts of Phil Strader and Al
Larochelle, two of Sig Sauer’s designated deponents in a prior case against the
corporation.1 Sig Sauer moves to exclude these transcripts. Doc. no. 77.2 The court
heard oral argument at a hearing on July 14, 2022. For the following reasons, the
court denies in part and grants in part Sig Sauer’s motion.
1 Guay originally sought to introduce the deposition transcript of a third
designated deponent, John Sheppard. Doc. no. 77-1. Guay has indicated, however,
that he no longer intends to introduce this deposition.
2 Doc. no. 77 is an objection to Guay’s amended pretrial statement, wherein
he disclosed his intention to present these transcripts as evidence at trial. As Sig
Sauer moves to prevent Guay from presenting this evidence, the court construes the
objection as a motion in limine.
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BACKGROUND
Sig Sauer designs, manufactures, and sells the P320 pistol. Guay purchased
a P320 pistol in December 2016. In January 2020, Guay took his dogs for a walk
with this P320 pistol holstered to his belt. When he returned home, he attempted to
remove the holster. Guay alleges that, while he was doing so, the pistol discharged
and shot him in the leg. Guay alleges that he did not pull the trigger. Guay
maintains that the P320 pistol discharged without a trigger pull due to a defect in
the design and/or manufacture of the product.
Guay alleges that before the date of his injury, Sig Sauer knew about prior
allegations that the P320 discharged without a trigger pull. Guay further alleges
that, despite this knowledge, Sig Sauer failed to adequately warn buyers and users
of the P320 pistol about the danger of accidental discharges and failed to issue a
recall of the pistol to address the safety concerns at issue. Notably, Sig Sauer did
institute a “voluntary upgrade program” for the P320 in August 2017 but notice
about the program indicated it was meant to address drop-related safety concerns.
Guay maintains that the voluntary program was insufficient because: (1) Sig Sauer
failed to warn users of non-drop related safety concerns; and (2) the voluntary
language of the program failed to adequately convey the importance of receiving the
upgrade.
Guay’s attorney, Jeff Bagnell, represented another individual in an earlier
case against Sig Sauer involving an alleged unintended discharge, Vadnais v. Sig
Sauer, Inc., No. 1:18-cv-00540-LMB-IDD (E.D. Va. 2019). As part of that case,
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Attorney Bagnell deposed two Sig Sauer designees, Phil Strader and Al Larochelle,
pursuant to Federal Rule of Civil Procedure 30(b)(6). See Fed. R. Civ. P. 30(b)(6)
(allowing corporate parties to designate individuals as deponents on the
corporations’ behalf).
DISCUSSION
Sig Sauer moves to preclude Guay from introducing designated portions of
the deposition transcripts of Phil Strader and Al Larochelle. Guay argues the
transcripts are admissible under Federal Rule of Civil Procedure 32. Rule 32 allows
a party to introduce into evidence all or part of a deposition transcript if: (A) the
opposing party was present or represented at the deposition or had reasonable
notice of it; (B) the deposition testimony would be admissible under the Federal
Rules of Evidence if the deponent were present and testifying; and (C) the use is
allowed by Rule 32(a)(2) through (8). Fed. R. Civ. P. 32(a)(1).
It appears undisputed that elements (A) and (C) have been established in this
case. As to (A), Sig Sauer was the defendant in the earlier Vadnais case and its
attorneys were present at the depositions of both Strader and Larochelle.3 As to
(C), Rule 32 states: “An adverse party may use for any purpose the deposition of a
party or anyone who, when deposed, was the party’s officer, director, managing
agent, or designee under Rule 30(b)(6) . . . .” Fed. R. Civ. P. 32(a)(3). Strader and
3 One of Sig Sauer’s attorneys in this case, Attorney Robert Joyce, was
present at the depositions of Strader and Larochelle.
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Larochelle were Sig Sauer’s Rule 30(b)(6) designees. Moreover, Rule 32 also
permits parties to introduce depositions taken in earlier actions if permitted by the
Federal Rules of Evidence. Fed. R. Civ. P. 32(a)(8).
Thus, the only remaining element is (B), and the issue is whether the
deposition transcripts of Strader and Larochelle are admissible under the Rules of
Evidence. The court considers the testimony of each deponent in turn.
A. Deposition testimony of Phil Strader4
In the prior lawsuit, Sig Sauer designated Phil Strader to discuss the
voluntary upgrade program to the P320 pistol.5 In his deposition, Strader testified,
among other topics,6 about the number of P320s that, as of the date of his January
2019 deposition, were circulating in the commercial (i.e., non-military or police
force) market. He also testified about the number of individuals who had, as of
January 2019, submitted their P320 pistols to Sig Sauer pursuant to the voluntary
upgrade program. Strader testified that he could only provide approximations of
4 Sig Sauer attached the relevant portions of Phil Strader’s deposition
transcript as doc. no. 77-2.
5 Counsel for Sig Sauer made this representation at the July 14, 2022
hearing.
6 Guay also marked for introduction a portion of the deposition transcript in
which Strader discusses a public video about the changes Sig Sauer made during
the upgrade program. See doc. no. 77-2 at 34:1-34:23. Neither party addressed this
testimony in their briefs or at the public hearing. Absent any argument to allow or
exclude this evidence, the court reserves judgment on its admissibility.
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these figures. He also approximated how much he thought it cost Sig Sauer to
upgrade the pistols pursuant to the program as of January 2019.
In addition, Strader testified about Sig Sauer’s rationale in referring to its
upgrade program as the “voluntary upgrade program” as opposed to a “recall.”
Specifically, he testified that the word “recall” had a more serious connotation than
the phrase “voluntary upgrade program,” and would likely indicate to consumers
that the safety issue was of greater significance. He also testified that Sig Sauer
could have called the upgrade program a “recall,” but chose not to, and that he did
not think it was necessary to call the program a recall because he believed that the
P320 met all relevant safety standards. He further testified that he had not
personally heard of anyone being injured by an accidental discharge from a P320
outside of the scope of the Vadnais lawsuit. Finally, he testified that Sig Sauer sent
a second notice about the voluntary upgrade program, its reasons for doing so, and
that Sig Sauer had not, as of the time he testified, issued a third notice.
Guay seeks to introduce this deposition testimony to establish Sig Sauer’s
knowledge about the effectiveness of its voluntary upgrade program, and show that
Sig Sauer could have used the term “recall” rather than the phrase “voluntary
upgrade program.” Sig Sauer raises several arguments against its inclusion.
First, Sig Sauer argues that Strader’s testimony about the number of pistols
in the commercial market and the number of pistols returned pursuant to the
voluntary upgrade program is irrelevant and thus inadmissible under Rules 401
and 402. For a party to submit evidence at trial, it must be relevant. Fed. R. Evid.
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402. “Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Here, Strader’s testimony about the
total number of P320s in the market and the number of consumers who returned
their pistols pursuant to the upgrade program as of 2019 is relevant because it goes
to Sig Sauer’s knowledge about the efficacy of its upgrade program at the time of
the deposition, which took place before Guay’s injury in January 2020.
Sig Sauer argues that this testimony is irrelevant because Guay did not
submit his pistol for voluntary upgrade. This argument misconstrues Guay’s
claims, which are premised, in part, on the allegation that he would not have
injured himself had Sig Sauer issued a stronger warning about the safety defects in
the pistol. The fact that Guay did not upgrade his pistol, therefore, does not make
evidence about Sig Sauer’s knowledge of the number of people who did irrelevant.
Second, Sig Sauer argues that Stader’s testimony about the number of pistols
and upgrades should be excluded as unduly prejudicial under Rule 403 because the
numbers are outdated and Sig Sauer has, as of today’s date, upgraded a larger
percentage of P320s. Rule 403 permits courts to exclude relevant evidence if its
probative value would be substantially outweighed by the evidence’s ability to
“cause unfair prejudice, confus[e] the issues, mislead[] the jury, cause undue delay,
wast[e] time, or needlessly present[] cumulative evidence.” Fed. R. Evid. 403.
The deposition testimony would not be unduly prejudicial. As noted above,
Strader’s testimony is highly probative because it concerns the figures as of January
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2019 and thus goes to Sig Sauer’s notice at the time. As to prejudice, Sig Sauer can
avoid any risk that Strader’s testimony would create the impression that the
current number of upgrades is low by introducing more current figures.
Accordingly, any prejudice created by Strader’s testimony is easily cured and does
not substantially outweigh its probative value.
Third, Sig Sauer argues that Strader’s testimony about the number of pistols
and upgrades is inadmissible because Guay has failed to lay a foundation for
Strader’s knowledge about these figures. Specifically, Sig Sauer notes Strader
testified that these were approximations of the figures and not exact amounts. Sig
Sauer maintains it does not know where Strader got these figures, particularly
because he did not work in the accounting department, which tracked these figures.
The testimony should not be excluded for this reason. Sig Sauer designated Strader
under Rule 30(b)(6) to testify on its behalf about the voluntary upgrade program.
The jury can hear what Sig Sauer’s designee approximated crucial figures about the
program to be as of the time of his deposition. The jury can consider Strader’s
testimony that these figures were approximations in evaluating the weight to give
the evidence.
Fourth, Sig Sauer argues that a portion of the deposition transcript that
includes an incomplete discussion about a prior incident should be excluded.
Specifically, in that portion, Attorney Bagnell asks Strader if an unidentified
incident prompted Sig Sauer to issue a second notice about the voluntary upgrade
program, and Strader testified: “Not to my knowledge.” See doc. no. 77-2 at 59:8-
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59:10. There is no other testimony about this incident in the identified excepts
Guay seeks to introduce. Without any context about what this incident was and
whether Strader, or anyone else at Sig Sauer, had heard of this incident, the
testimony has little probative value. Moreover, the testimony is prejudicial because
it suggests there was another incident of an accidental discharge without providing
any background or context for it. As the prejudicial effect of the portion of the
transcript outweighs its limited probative value, the court excludes it. See Fed. R.
Evid. 403.
Fifth, Sig Sauer argues that Strader’s testimony about Sig Sauer’s decision to
use the phrase “voluntary upgrade program” and not “recall” was beyond the scope
of his deposition, and he therefore did not speak on Sig Sauer’s behalf. Sig Sauer
notes that Strader testified that his statements on this topic were his own personal
opinions. The testimony should not be excluded on this basis. Again, Sig Sauer
designated Strader to discuss the voluntary upgrade program under Rule 30(b)(6).
His testimony about the name Sig Sauer chose to give the program falls within the
scope of that designation. The jury can consider any qualifications to his opinion
that Strader made in evaluating the weight to give his testimony.
Sixth, and finally, Sig Sauer argues that Strader’s testimony about his
personal knowledge of other people being injured by the P320 was outside of the
scope of his 30(b)(6) designation and that Strader therefore did not make these
comments on Sig Sauer’s behalf. The voluntary upgrade program concerned the
safety mechanics of the P320, and Sig Sauer and its employees’ knowledge of
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individuals being injured by accidental discharges is reasonably related to the
program. Whether Strader was aware of injuries caused by accidental discharges
from the P320 therefore falls within the scope of his Rule 30(b)(6) designation.
In sum, the court concludes that the following portions of Strader’s deposition
are admissible under Federal Rule of Civil Procedure 32 and the Federal Rules of
Evidence: 29:5-30:20, 31:15-33:14; 45:1-47:6, and 59:11-59:23. However, Guay may
not introduce the portion of Strader’s deposition relating to an unidentified prior
incident: 59:8-59:10.
B. Deposition testimony of Al Larochelle7
Al Larochelle also testified in January 2019. Although Guay identified larger
sections of the transcript in his pretrial statement, he clarified at the July 14, 2022,
hearing that he only seeks to introduce pages 53 through 55 of the deposition into
evidence. In that portion of the transcript, Larochelle testifies that he and other Sig
Sauer employees watched body camera video of another alleged accidental
discharge of a P320 pistol involving a law enforcement officer in Roscommon,
Michigan.
Sig Sauer objects to pages 53 through 55 of Larochelle’s deposition on the
grounds that it includes discussion of the Roscommon incident, which Sig Sauer
argues is inadmissible because Sig Sauer has failed to lay a foundation for it.
7 Sig Sauer attached the relevant portions of Al Larochelle’s deposition
transcript as doc. no. 77-3.
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Under Rule 602, “a witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may consist of the witness’s own
testimony.” Fed. R. Evid. 602. In his deposition, Larochelle admitted he and other
Sig Sauer employees had seen video of the Roscommon incident involving an alleged
accidental discharge of the P320 pistol and described what he observed in the video.
Larochelle’s own testimony establishes his personal knowledge that he watched the
video and about the contents of the video. There is nothing further that Guay needs
to present under Rule 602 to admit this testimony. Accordingly, the court will not
exclude this portion of Larochelle’s deposition on the grounds that it lacks
foundation.8
Moreover, while Sig Sauer does not expressly argue relevancy, the court
nevertheless notes that the testimony about the Roscommon incident is relevant
because it goes to Sig Sauer’s knowledge of other alleged unintended discharges
prior to the date of Guay’s accident and thus to whether Sig Sauer possessed
information that would require it to warn P320 users of potential dangers. See Fed.
R. Evid. 401. The court cannot think of any reason, and Sig Sauer has not
8 Guay previously sought to introduce the video of the Roscommon incident
(along with four other videos) into evidence. At a hearing on July 7, 2022, the court
ruled that Guay could not introduce the evidence because he conceded he had no
ability to authenticate the five videos under Federal Rule of Evidence 901. At that
time, the parties had not presented the content of Larochelle’s deposition to the
court. As the court noted in its July 14, 2022 order, the court reserves ruling on the
question of whether Larochelle’s deposition testimony is sufficient to authenticate
the Roscommon video.
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identified any, why this relevant evidence would otherwise be inadmissible.
Accordingly, Guay may introduce pages 53 through 55 of Larochelle’s deposition
testimony.
CONCLUSION
For the foregoing reasons, the court denies in part and grants in part Sig
Sauer’s motion to exclude the deposition testimony of Phil Strader and Al
Larochelle. Doc. no. 77. Guay may introduce portions of those depositions to the
extent allowed by this order.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
July 18, 2022
cc: Counsel of Record
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