MARY SANDIFER; AMANDA SANDIFER; RYAN SANDIFER, Plaintiffs-Appellants
HOYT ARCHERY, INCORPORATED; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA; ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendants-Appellees
from the United States District Court for the Middle District
STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
GRADY JOLLY, CIRCUIT JUDGE.
appeal arises from a most unfortunate, unintended, and
unwitnessed death. Dr. Alan Sandifer was pierced in the head
by the cable guard of his 2007 Hoyt Vulcan XT500 bow,
which he was examining, and possibly modifying, while at his
home. Following his death, his family members-Mary, Amanda,
and Ryan Sandifer ("the Sandifers")-filed suit
against Hoyt Archery, Inc. and its insurers (collectively,
"Hoyt"). The Sandifers brought this action under
the Louisiana Products Liability Act ("LPLA")
alleging that the compound bow was defectively designed.
determinative issue on appeal is whether the district court
erred by excluding most of the testimony of the
Sandifers' primary expert, Dr. Kelkar. In disallowing Dr.
Kelkar's testimony, the district court held, first, that
he, as a substitute expert, exceeded the scope of the expert
opinion, theory, and testimony as earlier defined by the
district court when allowing him to enter the case late into
the litigation. Secondly, the court excluded on the grounds
that Dr. Kelkar's opinion as to the causation of the
accident was based on propensity evidence, relating to the
character and habits of Dr. Sandifer as a hunter. Once the
district court ruled on the evidentiary questions, it granted
summary judgment to Hoyt on the ground that the Sandifers did
not present evidence that Dr. Sandifer was engaged in a
reasonably anticipated use of the bow at the time of the
accident, a required showing by the LPLA.
we conclude that the court acted within its discretion, we
AFFIRM its grant of summary judgment, dismissing the case.
But first let us get to the facts of the Sandifers'
Sandifer was an avid bow hunter. One evening, while at home,
with his wife seated in a different room, he sat at his
computer with his Hoyt compound bow. His wife asked what he
was doing, and he told her that he was searching the internet
for a new part. A few minutes later, his wife heard a loud
noise and found her husband lying unconscious on the floor
with the compound bow's metal cable guard in his head
through his left temple. The rod went deep into Dr.
Sandifer's brain. He died the next day. No one saw the
accident occurred is confounding and is the subject of this
litigation. Hoyt, the manufacturer, contends that, when
modifying the bow, Dr. Sandifer voluntarily placed his head
in the bow to examine it while pulling the drawstring; then,
he accidentally lost control of the string, causing the cable
guard to enter his head; and that such use of the bow was not
a reasonably anticipated use of the instrument. The Sandifers
contend that Dr. Sandifer did not voluntarily place his head
into the bow but instead that the compound bow was defective,
and the defect caused the cable guard to release and enter
Dr. Sandifer's brain.
case was initially filed in the NineteenthJudicial District
Court for the State of Louisiana. Hoyt removed the case to
the U.S. District Court for the Middle District of Louisiana.
over three years of litigation, the Sandifers asked for a
continuance of the trial date that had been set. Their
primary expert, Dr. Gautam Ray, a biomechanical engineer, had
been diagnosed with terminal cancer and could not continue in
the case. The Sandifers had employed Dr. Ray to explain how
the accident occurred and to show that Dr. Sandifer's use
of the compound bow was a reasonably anticipated use.
See La. Rev. Stat. 9:2800.54 (stating that a
manufacturer is liable only when an injury "arose from a
reasonably anticipated use of the product"). The
district court had qualified Dr. Ray to testify at trial
based upon the standards in Daubert v. Merrell Dow
Pharms. Inc.; that is to say, his methods were reliable
and his opinions helpful to the jury. See 509 U.S.
579 (1993). Further, the court had denied Hoyt's motion
for summary judgment, partially because Dr. Ray testified
that Dr. Sandifer's head "most probably than
not" ended up between the cable guard and the bow string
previously noted, because of his impaired physical condition,
Dr. Ray withdrew from the case. Afterward, the Sandifers
moved the district court to allow Dr. Ray to be replaced with
another biomechanical engineer. The court granted that
request. The court admonished, however, that the approval of
"a substitute expert was not an opportunity for [the
Sandifers] to re-start expert discovery or engage an expert
outside the scope of expertise and methodology of Dr.
Sandifers hired Dr. Rajeev Kelkar-an accident reconstruction
expert and biomechanics consultant-who worked for InSciTech,
Inc., an engineering firm that specializes in the
investigation and analysis of accidents and equipment
failures. He concluded in his report that it was most likely
that Dr. Sandifer's injury resulted from a twisting of
the bow string that caused Dr. Sandifer's head to
involuntarily end up between the bow string and the riser due
to a design defect, rather than a volitional act on his part.
The basis for this opinion, as expressed by Dr. Kelkar, was
that Dr. Sandifer was a "meticulous" and "very
safety conscious" bow hunter who would know not to flex
his left elbow in a "biomechanically
disadvantageous" manner and place his head in the bow.
Dr. Kelkar submitted his analysis and opinion, Hoyt deposed
him. At that deposition, Dr. Kelkar conceded that from a
biomechanical perspective, it was just as likely that Dr.
Sandifer was killed by volitionally placing his head inside
the bow as it was by an accidental twisting of the bowstring.
But he added that he believed the second scenario was more
likely because of statements from Dr. Sandifer's friends
and family describing him as a careful bow hunter and the
difficulty of volitionally placing one's head into a
drawn bowstring. When pressed, Dr. Kelkar conceded that,