COLE et al v. SIG SAUER INC

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID COLE, et al., 	)
)
Plaintiffs 	)
)
v. 	) 	1:23-cv-00327-JCN
)
SIG SAUER, INC., 	)
)
Defendant 	)
ORDER ON MOTIONS IN LIMINE
This matter is set for a jury trial, which will commence on July 27, 2026. In advance
of trial, the parties filed multiple motions in limine. (Motions, ECF Nos. 108-127.) The
Court held a hearing on the motions on July 16, 2026. During the hearing, the Court ruled
on some motions, conditionally ruled on other motions, and, due to other matters on the
Court’s schedule, did not discuss certain motions.
After further consideration of the issues generated by the motions, the Court
memorializes some of the oral rulings, supplements some of the rulings, and addresses the
motions that were not discussed during the hearing.
A. 	Defendant’s Motion in Limine to Preclude Evidence of Other Incidents (ECF
No. 108); Plaintiffs’ Motion in Limine to Admit Evidence of Specific Similar
Incidents and Preclude Evidence of the Lack of Other Incidents in Comparison
to the Number of P320’s Sold (ECF No. 109)
Based on the parties’ submissions, the Court is satisfied that some of the other
incidents about which Plaintiffs seek to introduce evidence are likely substantially similar
to the circumstances alleged by Plaintiffs insofar as the incidents involve a P320 firearm
with the same trigger pull as Plaintiff David Cole’s firearm and no external safety measure,
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the firearm was holstered, the discharge occurred without an intended trigger pull, and the
discharge was not the result of a drop or abusive handling. 	The evidence is relevant to
Defendant’s prior knowledge of the risk of unintended discharge of the P320 model, the
existence of a defect, causation, and design. 	The Court, mindful that it “must weigh the
dangers of unfairness, confusion, and undue expenditure of time in the trial of collateral
issues against the factors favoring admissibility,” McKinnon v. Skil Corp., 638 F.2d 270,
278 (1st Cir. 1981), will permit the introduction of the video recording of a limited number
of prior incidents provided that the recordings are confirmed as substantially similar
incidents through other evidence (e.g., testimony of those involved) and the recording is
otherwise helpful to the jury and would not require extensive litigation regarding the
depicted incidents. 1 	The Court is not inclined to permit the introduction of the oral
statements made by those present regarding the manner of discharge. The Court’s ultimate
determination will be based on the quality of the evidence presented at trial and the nature
of the claims and defenses as developed during the trial.
The Court, therefore, conditionally grants in part Plaintiffs’ motion and denies
Defendant’s motion.
B. 	Plaintiffs’ Omnibus Motion in Limine (ECF No. 110)
For the reasons set forth on the record during the hearing, the Court denies Plaintiffs’
Omnibus Motion to the extent that it seeks to preclude use of the phrase “negligent
1 For instance, during the hearing, the Court noted that it was inclined to require that the P320 be visible on
the recording at the time of the alleged discharge. Such a condition would arguably limit to some degree
the likelihood that litigation of the incident would be required.
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discharge” to refer to other similar incidents. In the absence of an agreement between the
parties, the Court denies Plaintiffs’ request to use video deposition testimony during
opening statements.
C. 	Plaintiffs’ Motion in Limine to Preclude Sig Sauer Employees or Expert
Witnesses or Lay Witnesses from Testifying About Customer Preferences
Regarding External Safeties (ECF No. 111)
For the reasons set forth on the record during the hearing, the Court grants in part
and denies in part Plaintiffs’ Motion to Preclude Testimony About Customer Preferences
Regarding External Safeties. 	To the extent that such evidence qualifies as hearsay
statements from customers or users, the Court grants the motion. 	To the extent that
Defendant seeks to present evidence regarding Defendant’s sales and marketing analysis,
the Court denies the motion.
D. 	Plaintiffs’ Motion in Limine to Preclude Evidence of Compliance with Drop
and/or Abuse Testing Standards (ECF No. 112)
For the reasons set forth on the record during the hearing, because evidence
regarding the development and testing of the P320 is relevant to the claims and defenses in
this matter, the Court denies Plaintiffs’ Motion to Preclude Evidence of Compliance with
Drop and/or Abuse Testing Standards.
E. 	Plaintiffs’ Motion in Limine to Preclude Defendant from Introducing or
Eliciting Testimony from Lay Witnesses About Their Personal Preferences or
Opinions Regarding External Safeties (ECF No. 113)
For the reasons set forth on the record during the hearing, the Court conditionally
grants in part Plaintiffs’ Motion to Preclude Defendant from Introducing Testimony from
Lay Witnesses About Their Personal Preferences or Opinions Regarding External Safeties.
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Although the Court is not inclined to allow lay witnesses to testify regarding their personal
preferences or opinions regarding external safeties, the Court will not order the complete
exclusion of such testimony at this time. To the extent that Defendant wishes to elicit such
testimony during the trial, Defendant shall first alert the Court and request a ruling
regarding the specific evidence Defendant seeks to introduce.
F. 	Defendant’s 	Motion 	in 	Limine 	to 	Preclude 	Evidence, 	Testimony, 	and
Argument Regarding the P320 Voluntary Upgrade Program (ECF No. 114)
The Court defers ruling on Defendant’s Motion to Preclude Evidence and Argument
Regarding the P320 Voluntary Upgrade Program until the evidence is proffered in the
context of trial when the Court will have the benefit of an evidentiary record and the context
in which the evidence would be presented. Before Plaintiffs reference the Voluntary
Upgrade Program, Plaintiffs shall seek a ruling from the Court.
G. 	Defendant’s Motion in Limine to Preclude Any Reference to the P320 as a
Double Action Pistol (ECF No. 115)
Without 	further 	development 	of 	the 	record, 	including 	a 	more 	thorough
understanding of the expected expert witness testimony, the Court cannot conclude that all
reference to the P320 as a double action pistol should be excluded. The Court, therefore,
conditionally denies the motion with the understanding that Defendant may ask the Court
to reconsider the request in the context of the trial evidence.
H. 	Defendant’s Motion in Limine to Preclude Certain Trial Conduct by Plaintiffs’
Counsel (ECF No. 116)
As set forth on the record during the hearing, the Court grants in part Defendant’s
Motion to Preclude Certain Trial Conduct by Plaintiffs’ Counsel. 	Without determining
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that Plaintiffs’ counsel intended to engage in any of the conduct identified by Defendant,
the Court orders that without prior approval from the Court, the parties shall not make any
of the references discussed by the Court during the hearing.
I. 	Defendant’s Motion 	in Limine to Preclude Any Evidence 	or Testimony
Regarding 	the 	“Safety 	Without 	Compromise” 	Advertisement 	and 	Other
Similar Marketing Materials (ECF No. 117)
As set forth on the record during the hearing, the Court denies Defendant’s Motion
to Preclude Evidence Regarding the “Safety Without Compromise” Advertisement and
Other Similar Marketing Materials provided it is established that the advertisement and
other materials were included in the promotion of the P320. At this time, the Court defers
ruling on the extent of the use of such evidence.
J. 	Defendant’s Motion in Limine to Exclude, or Alternatively to Substantially
Limit/Redact, Post-Incident Body-Worn Camera Footage and for Related
Relief (ECF No. 118)
As set forth on the record during the hearing, the Court grants in part and denies in
part Defendant’s Motion to Exclude, Limit, or Redact Post-Incident Body-Worn Camera
Footage. 	Plaintiffs may present a recording of the incident, including Plaintiff David
Cole’s statement, but the recording shall not include Detective Dodge’s comments.
K. 	Defendant’s Motion in Limine to Exclude Evidence Regarding Plaintiff’s
Father Eugene Cole (ECF No. 119)
As discussed on the record during the hearing, the Court grants in part and denies
in part Defendant’s Motion to Exclude Evidence Regarding Eugene Cole. 	Because
evidence of Eugene Cole’s accomplishments is not relevant to the claims and defenses in
this action, Plaintiffs may not introduce such evidence. Plaintiffs may introduce evidence
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regarding the circumstances of Eugene Cole’s passing as it relates to Plaintiff David Cole’s
claim for damages.
L. 	Defendant’s Motion in Limine to Exclude Evidence and Argument Regarding
Third-Party 	“Bans,” 	Discontinued 	Use, 	and 	Institutional 	Statements
Concerning the P320 (ECF No. 120)
The Court will defer ruling on Defendant’s Motion to Exclude Evidence and
Argument Regarding Third-Party “Bans,” Discontinued Use, and Institutional Statements
Concerning the P320. 	To the extent that Defendant offers evidence to suggest that the
P320’s safety is reflected by its widespread use, the Court will likely permit Plaintiffs to
offer some of the evidence identified in Defendant’s motion. Before discussing or offering
any such evidence, Plaintiffs shall request a ruling from the Court.
M. 	Defendant’s Motion in Limine to Preclude Any Reference to a Duty to Recall
(ECF No. 121)
While the Court is inclined to limit discussion of a duty to recall due to Rule 403
concerns (e.g., confusing the issues), the Court will defer ruling on Defendant’s Motion to
Preclude Any Reference to a Duty to Recall until the issue arises in the context of trial.
Before referencing the issue at trial, Plaintiffs shall seek a ruling from the Court.
N. 	Defendant’s 	Motion 	in 	Limine 	to 	Preclude 	Any 	Argument 	that 	U.S.
Immigration and Customs Enforcement Data Shows an Increase in Accidental
Discharges Following Its Adoption of the P320 (ECF No. 122)
Defendant 	moves 	the 	Court 	to 	preclude 	evidence 	and 	argument 	that 	U.S.
Immigration and Customs Enforcement (ICE) data shows an increase in accidental
discharges after it began using the P320. 	In particular, Defendant seeks exclusion of a
document identified as the “ICE Executive Summary” on Plaintiffs’ exhibit list. Defendant
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contends that the ICE Executive Summary is inadmissible hearsay and subject to exclusion
under Federal Rule of Evidence 403. 	Defendant also asserts that the Plaintiffs cannot
establish that the incidents described in the ICE Executive Summary are substantially
similar to the incident at issue in this action.
Plaintiffs contend that the ICE Executive Summary is within the public record
exception to the hearsay rule, citing Federal Rule of Evidence 803(8). Plaintiffs argue that
the ICE Executive Summary describes incidents in which law enforcement personnel
experienced unintentional discharges of the P320, like the incident at issue here, and that
any distinction between the ICE incidents and the incident in this case do not warrant
exclusion of the ICE Executive Summary. 	Plaintiffs further contend that the probative
value of the ICE Executive Summary outweighs any risk of misleading or confusing the
jury, and that Defendant has not identified any risk of unfair prejudice.
Rule 803(8) provides the following exception to the rule against hearsay:
A record or statement of a public office if . . . it sets out . . . in a civil case . .
. factual findings from a legally authorized investigation; and . . . the
opponent does not show that the source of information or other circumstances
indicate a lack of trustworthiness.
Fed. R. Evid. 803(8)(A)(iii), (B). “Rule 803(8) is a pathway to admissibility, anchored in
the concept that public officials will perform their responsibilities appropriately.” United
States v. Fuentes-Lopez, 994 F.3d 66, 70 (1st Cir. 2021). 	“The party challenging the
admissibility of a public record that is relevant and that conforms to the requirements of
Rule 803(8)(A) can challenge its admission only by making an affirmative showing that
the record is untrustworthy under Rule 803(B).” Id. at 71. To “show untrustworthiness,”
the party challenging admission of a public record “must show that something specific”
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resulting from the circumstances surrounding the creation of the form “adversely affected
the trustworthiness of the form.” Id.
The ICE Executive Summary satisfies the requirements of Rule 803(A)(iii): it is a
record or statement of the Office of Professional Responsibility (OPR) Investigations
Division of ICE reflecting the results of OPR’s research concerning “what appeared to be
a recent increase in the amount of Unintentional Discharges (UD) throughout ICE.” (ICE
Executive Summary, ECF No. 122-3). 	Defendant does not appear to argue otherwise.
Instead, Defendant challenges the document’s trustworthiness, asserting that the redactions
in the document “prevent meaningful evaluation of the report’s factual basis, investigative
methodology, and conclusions.” (Defendant’s Motion in Limine at 5, ECF No. 122.) The
Court is not convinced that the redactions—presumably applied after the creation of the
form—are “tangible indicia of unreliability.” 	Fuentes-Lopez, 994 F.3d at 71. 	While the
redactions might inform a Rule 403 analysis, they do not suggest that the records were
created under circumstances that generate trustworthiness concerns. 	The ICE Executive
Summary falls under the public record exception to the hearsay rule.
Defendant’s other concerns regarding the summary are appropriately evaluated
under Rule 403. See David P. Leonard, The New Wigmore: Evidence of Other Misconduct
& Similar Events § 14.1 (2009) (“[C]ourts should admit evidence of similar occurrences
according to the basic principles of relevance and probative value, with an eye toward
unfair prejudice in appropriate cases.”); Simon v. Town of Kennebunkport, 417 A.2d 982,
986 (Me. 1980) (endorsing same approach). The balancing of probative value against the
risks identified by Rule 403 turns in part on the purpose for which the evidence is offered.
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See The New Wigmore: Evidence of Other Misconduct & Similar Events § 14.3. 	Here,
Plaintiffs apparently seek to introduce the ICE Executive Summary as evidence of other
occurrences similar to the incident in this case to establish that the “the P320 is defectively
designed and unreasonably dangerous because of its single action design, resulting in an
exceedingly short trigger pull[.]” (Opp. at 9, ECF No. 143.)
“In a negligence action, evidence of other similar accidents or occurrences may be
relevant circumstantially to show a defective or dangerous condition[.]” Simon, 417 A.2d
at 984. 	However, such evidence is admissible to establish the existence of an asserted
design defect “only if the proponent of the evidence shows that the accidents occurred
under circumstances substantially similar to those at issue in the case at bar.” McKinnon,
638 F.2d at 277. “Substantial similarity is a function of the theory of the case.” Moulton
v. Rival Co., 116 F.3d 22, 27 (1st Cir. 1997) (quotation marks omitted). 	As such, to
establish the relevance of other incidents, a negligence plaintiff need not prove what caused
his incident, but must simply identify a supportable theory of design defect resulting in the
incident, and show that the same alleged design defect resulted in the other incidents. West
v. Bell Helicopter Textron, Inc., 967 F. Supp. 2d 479, 493-94 (D.N.H. 2013). “Indeed, to
present substantially similar circumstances, the version of the product involved in a
different accident need not have all the same features of the version involved in the
plaintiff’s accident, so long as the plaintiff can make some showing that the alleged defect
was the same.” Id. at 494. Depending upon the plaintiff’s theory of the case, only certain
circumstances need be similar. Compare Moulton, 116 F.3d at 27 (affirming admission of
other accidents evidence despite potential distinctions in the manner in which the accidents
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occurred where plaintiff introduced the evidence of other accidents “to show that the
product as designed allowed the rapid escape of a significant amount of extremely hot
liquid and was thus defective”); with McKinnnon, 638 F.2d at 277 (affirming exclusion of
other accidents evidence where plaintiff alleged injury sustained by defective blade guard
on portable saw and where other accidents evidence did not indicate whether injuries
resulted from defective blade guard).
Here, the circumstances of the incidents described in the ICE Executive Summary
are unknown. Plaintiff has not demonstrated that the incidents documented in the summary
are substantially similar to the incident alleged in this case. 	All that is known is that the
incidents involved the unintended discharge of a P320.
Even if it reflects substantially similar incidents, the ICE Executive Summary and
related evidence may be excluded under Rule 403. See McKinnon, 638 F.2d at 277 (“Even
when substantial identity of the circumstances is proven, the admissibility of such evidence
lies within the discretion of the trial judge who must weigh the dangers of unfairness,
confusion, and undue expenditure of time in the trial of collateral issues against the factors
favoring admissibility.”). 	The redactions, which could include material information
regarding the circumstances surrounding the discharge of the P320 in the listed incidents,
generate concerns of unfair prejudice. Defendant’s ability to question the similarity of the
incidents is arguably compromised by the redactions and invites Defendant to litigate the
circumstances, which could result in the undue expenditure of time concerning tangentially
related matters.
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Because the Court cannot find that the incidents reflected in the summary constitute
substantially similar incidents to the incident alleged in this case, and because the
redactions raise Rule 403 concerns, the Court grants the motion. If Plaintiffs believe the
evidence at trial has adequately addressed the Court’s concerns, Plaintiffs may ask the
Court to revisit the issue but shall seek a ruling from the Court before referencing the
summary.
O. 	Defendant’s Motion in Limine to Exclude Evidence and Argument Concerning
FMECA (ECF No. 123)
Defendant moves the Court to exclude evidence and argument concerning a 2017
Failure Modes, Effects, and Criticality Analysis (FMECA) that Defendant prepared with
respect to a “different version of the P320 pistol in connection with the United States
Army’s Modular Handgun System procurement.” (Motion at 1, ECF No. 123.) Defendant
contends that FMECA is irrelevant because it does not assess the version of the P320 at
issue in this case. It further contends that even if FMECA had some marginal relevance, a
substantial risk of prejudice requires exclusion under Rule 403. 	Plaintiffs claim that the
FMECA concerned “the same gun” at issue here “with an external safety, which is what
Plaintiff alleges Detective Cole’s gun required in order to be designed safely for carry-
use.” (Opp. at 1, ECF No. 151.)
To this point, Defendant has not offered any persuasive support for its assertion that
the P320 assessed in the FMECA was materially different from the version of the P320 at
issue in this case. As such, Defendant has not established that the FMECA is irrelevant to
the claims and defenses in this case. Further, the remainder of Defendant’s contentions in
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support of exclusion are unconvincing. 	To the extent Defendant contends that its
assessment does not or should not apply to the P320 in this case, Defendant can present
evidence and argument at trial for the jury to evaluate. The Court conditionally denies the
motion subject to Plaintiffs’ ability to establish foundation and relevance as asserted in
their response to the motion.
P. 	Defendant’s 	Motion 	in 	Limine 	to 	Exclude 	Speculative 	Hindsight 	and
Counterfactual Testimony from Somerset County Decisionmakers (ECF No.
124)
Due to Rule 403 concerns, Plaintiffs may not elicit testimony from representatives
of the Somerset County Sheriff’s office as to whether they would have purchased the P320
if they were aware of the information they learned following the incident involving Plaintiff
David Cole. First, the testimony is, as Defendant’s argue, speculation based on hindsight
and thus not particularly probative. In addition, any probative value of such testimony is
outweighed by the amount of time that would likely be devoted to litigating the issue, which
would undoubtedly include evidence and discussion about the factors that Somerset County
considers in making such a purchase. The Court grants the motion as it relates to testimony
regarding whether Somerset County would have purchased the P320 with the information
it currently knows. 	The Court will decide in the context of trial whether Plaintiffs can
present evidence that Somerset County ceased use of the P320 following the incident
involving Plaintiff David Cole.
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Q. 	Defendant’s Motion in Limine to Exclude or Limit Testimony of Plaintiffs’
Functional Capacity Expert Gwen Simons (ECF No. 125)
Defendant seeks to exclude or limit testimony by Plaintiffs’ Functional Capacity
Expert Gwen Simons. Plaintiffs agree that Ms. Simons should not offer opinions that are
the proper subject of expert testimony by a vocational rehabilitation specialist, and that she
should not testify regarding Plaintiff David Cole’s general ability to perform law
enforcement work. 	Consistent with the parties’ agreement, the Court grants in part
Defendant’s motion. 	Gwen Simons may not testify regarding Plaintiff David Cole’s
functional capacity in the workplace. The Court will assess in the context of trial the extent
to which Ms. Simons can testify regarding Plaintiff David Cole’s functional ability more
generally.
R. 	Defendant’s Motion in Limine to Preclude Use of the Ambiguous Umbrella
Term External Safety and to Require Identification of the Specific Safety
Mechanism at Issue (ECF No. 126)
Defendant asks the Court to preclude Plaintiffs and their counsel and witnesses from
“using the ambiguous, arbitrary, and non-technical umbrella phrase ‘external safety’” at
trial. 	(Motion at 1, ECF No. 126.) 	Plaintiffs argue that the phrase “external safety” is
neither ambiguous nor misleading. 	(Opposition at 3, ECF No. 149.) 	The Court is not
persuaded that use of the term “external safety” will create any confusion or would be
unfairly prejudicial. For the term to have relevance, a party will necessarily have to provide
context. The Court is satisfied that context will alleviate the concerns raised by Defendant.
Accordingly, the Court denies the motion.
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S. 	Defendant’s Motion in Limine to Preclude Evidence, Testimony and Argument
Regarding Unrelated P320 Allegations (ECF No. 127)
Defendant asks the Court to prevent Plaintiffs from referencing any alleged defects
or issues with the P320, including claims that it can be discharged without a trigger pull,
that are unrelated to Plaintiffs’ claim in this case. Plaintiffs contend that Defendant may
present evidence to which Plaintiffs should be permitted to respond by presenting evidence
of other issues with the P320. The Court cannot determine pretrial whether Defendant will
“open the door” to the evidence. 	At this stage, the Court agrees that evidence of P320
issues that are unrelated to Plaintiffs’ claim is not relevant to this case. 	The Court,
therefore, grants the motion. Plaintiffs shall not raise the issues identified in the motion or
present related evidence. At trial, if Plaintiffs believe that Defendant, through argument or
presentation of evidence, has “opened the door” to such evidence, Plaintiffs may ask the
Court to revisit this ruling before Plaintiffs make any reference to the evidence.
SO ORDERED.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 21st day of July, 2026.
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