As an expert witness (court certified in firearms, ballistics and failure analysis) one thing that the general population may not realize is the burden of proof for a criminal trial is VERY different than for a civil trial.
For criminal, it is "beyond a reasonable doubt". In essence, as an expert, I have to be able to eliminate all other potentials except one, at least as it relates to physical laws. Even for Civil cases, this is what I attempt to do, however many other "experts" make a good living on playing on the civil burden of proof being pretty squishy.
For civil, it is "more likely than not." As an expert, if 3 or 4 theories exist, an opinion that one theory is at least 51% most likely allows the expert to basically state it is fact. This is often misleading and confusing to jurors, litigants and even courts at times.
In this case, IMHO, the plaintiff expert would have had to use physical evidence to connect the potential of the firearm igniting the primer when the action was unlocked...if the claimed defect was catastrophic. That is extremely difficult to prove.
A loose buttstock can fracture even if the action is locked, and result in injury...this would be considered misuse of the product, but one that the manufacturer should be aware of and guard or warn against. I do not see this addressed in the T/C Encore manual (current).
An improperly sized case, debris or fouled chamber, wear in the locking mechanism (or hinge pin) can be mechanical reasons why this type of firearms could "potentially" fire without being locked, however, the more prevalent cause is just not ensuring the action is locked.
However, the manual never warns of these conditions nor the potential that the firearm can possibly fire when not fully locked. The closest the manual gets to a warning (current version) is this:
WARNING: IF YOUR FIREARM GIVES ANY INDICATION THAT IT IS NOT PERFORMING PROPERLY OR THE OPERATION OF YOUR FIREARM HAS CHANGED “THE WAY IT FEELS OR SOUNDS”, STOP FIRING. MAKE SURE THE FIREARM IS POINTED IN A SAFE DIRECTION, UNLOAD THE FIREARM AND HAVE IT INSPECTED BY A FACTORY TECHNICIAN. CALL THOMPSON/CENTER CUSTOMER SERVICE.
Under the criteria for "warnings" which is typically based upon ANSI Z535, this is not a warning. The warning relies on an assumption related to the perception of a "change" in operation which, as an expert, I would argue is beyond the knowledge of the common user.
As for the 40%, Brian Ward ignored the written warning in the manual to wear safety glasses when shooting, however, the connection to the actual injuries does not appear to have been supported thoroughly, so the jury may have assigned the contributory negligence for another reason. If the defense was able to convince the jury that Mr. Ward was a "sophisticated" user, then the lack of warnings argument is diminished and Mr. Ward could then be assigned contributory negligence.
Also, the jury questionnaire does not assert that T/C was negligent. That typically goes to the notion of "notice." In essence, it "may" illustrate that the jury did not believe T/C had prior notice of the specific reasons that they decided in the plaintiff's favor.
I am not attempting to tell anyone that the jury verdict was correct or not, nor that Mr. Ward was correct or not. My only intent is to provide the readers of this thread with a little bit of insight into how cases like this may go in legal proceedings. I have worked both for and against large manufacturers on a multitude of firearms related failures and accidents and in the large majority of cases, user error was the cause. In most of those, one of more of the 4 laws of gun safety AND a direct violation of proper warnings in the user manual occurred.
At this point, the information I have seen on this specific case so far is a toss up at best. There are several unanswered questions and frankly, while I will dig a little deeper for my own education, since I am qualified and do work on these types of cases, I won't write my conclusions that would support one side or another since there is an appeal.
