In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3398

ADAM HARTMAN,

Plaintiff-Appellant,

v.

EBSCO INDUSTRIES, INC., et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:10-CV-528-TLS — Theresa L. Springmann, Judge.

____________________

ARGUED APRIL 14, 2014 — DECIDED JULY 10, 2014

____________________

Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit 

Judges.

FLAUM, Circuit Judge. Adam Hartman’s father gave him a 

muzzleloading rifle in 1994. Like many older muzzleloaders, 

the gun was designed to use black powder as a propellant. 

As such, the muzzleloader ignited newer, pelletized propellants erratically. In 2008, Hartman installed a kit on his 

gun—sold by KR Warranty, the maker of the rifle—that 

modified the muzzleloader and enabled it to ignite new pro-
2 No. 13-3398

pellants more reliably. The next day, Hartman was sighting 

in his “upgraded” muzzleloader when the gun unexpectedly 

discharged as he was trying to load it. The surprise firing of 

the weapon caused the ramrod and a patched round ball to 

pass through Hartman’s hands and arm, inflicting serious 

injury. Hartman sued KR Warranty on theories of negligence 

and strict liability. However, Indiana has a ten-year statute 

of repose for products-liability actions, and his gun was then 

fourteen years old. There are two exceptions to the statute, 

but we agree with the district court that Hartman cannot satisfy either of them. We affirm.

I. Background

KR Warranty began manufacturing the LK-93 Wolverine 

muzzleloader in 1994 (the company was then called Modern 

Muzzleloading, and the guns themselves sold under the 

Knight Rifles brand). That same year, Hartman’s father gave 

him a Wolverine. Hartman used the rifle for years; by his estimate, he fired it between 500 and 600 times before his accident.

As originally manufactured, the Wolverine used a #11 

percussion cap as its firing mechanism. A percussion cap uses a volatile chemical to provide a spark that ignites the primary black powder charge when struck by the gun’s hammer or striker bolt. See generally 10 Innovations that Led to the 

Modern Bullet, Fulminate of Mercury/Percussion Cap, HOW 

STUFF WORKS, http://www.howstuffworks.com/10-bulletinnovations4.htm#page=4 (last visited July 9, 2014). Once ignited, this black-powder charge propels the gun’s projectile—either a bullet or a patched round ball (a lead ball 

wrapped in lubricated cloth)—out of the barrel. The mechan-
No. 13-3398 3

ical part of many modern muzzleloaders—with “in-line” 

locks, rather than older “sidelock” guns—looks like this:

Kalkomey Enters., Inc., In-Line Muzzleloader, TODAY’S 

MUZZLELOADER COURSE, http://www.hunter-ed.com/muzzle

loader/studyGuide/In-Line-Muzzleloader/222099_700062667

(last visited July 9, 2014) (modified).

Many newer muzzleloader models employ a primer-cap 

mechanism—originally designed for use in shotguns—

which provides a hotter spark when struck by the striker. 

Primer caps allow muzzleloader users to eschew black powder as a propellant in favor of synthetic Pyrodex pellets 

(which are manufactured by nonparty Hodgdon). Hartman 

tried to use Pyrodex pellets in his percussion-cap-equipped 

Wolverine at some point after the pellets were introduced, 

but the pellets require hotter temperatures for ignition and 

the Wolverine would not reliably spark them.
4 No. 13-3398

In November 2008, Hartman bought a Knight 209 Primer 

Extreme Conversion Kit for his Wolverine. KR Warranty also manufactured the conversion kit. The kit replaced the #11 

percussion-cap firing system with a #209 shotgun-primer 

system. The conversion kit was meant to deliver a hotter 

spark and thereby ignite Pyrodex pellets more reliably. 

Hartman installed the kit himself on November 28, 2008.

The next day Hartman and a few friends went to a gravel 

pit to sight in the rifle. Hartman fired two shots and did not

swab the Wolverine’s barrel between shots. He fired a conical bullet with his first shot and a patched round ball with

the second. Before attempting to load the rifle for a third 

shot, Hartman put a primer cap on the nipple of the breech 

plug (see the above diagram), though he knew that a live 

primer cap should not be put on the nipple before loading. 

He then loaded two Pyrodex pellets into the muzzle of the 

rifle followed by another patched round ball. Hodgdon 

warns against using patched round balls with Pyrodex pellets, because using round balls instead of bullets when firing 

Pyrodex pellets carries an increased risk of unexpected discharge. Hartman attempted to seat the patched round ball in 

the barrel of the gun with a ramrod. The Wolverine then unexpectedly discharged, causing both the ramrod and the 

round ball to pass through both of Hartman’s hands and his 

right forearm.

On November 24, 2010, Hartman filed suit against several defendants in the Elkhart Circuit Court. For purposes of 

this appeal, the relevant defendants are KR Warranty and 

EBSCO Industries; in 1998, EBSCO acquired the stock of KR 

Warranty’s corporate predecessor, Modern Muzzleloading. 

Hartman originally named a third defendant, PI, Inc.—
No. 13-3398 5

which bought the Knight Rifle line in 2010—but the district 

court’s grant of summary judgment for PI was unopposed.

KR Warranty remains under the EBSCO corporate umbrella 

but appears to exist for the limited purpose of administering 

warranties for and claims against pre-PI sale rifles. The defendants quickly removed the case to federal district court. 

(From here on out, we’ll refer to the defendants just as “KR 

Warranty,” because as we’ll see, Hartman waived any arguments related specifically to corporate parent EBSCO.) 

The district court ultimately granted summary judgment for 

KR Warranty, concluding that Indiana’s statute of repose—

which sets a ten-year outer limit on products liability actions 

in Indiana—barred Hartman’s claim.

II. Discussion

We review the district court’s grant of summary judgment de novo. Olson v. Morgan, 750 F.3d 708, 713 (7th Cir. 

2014). Indiana’s statute of repose ordinarily bars cases where 

“the damages incurred by plaintiff occurred more than ten 

years after the product was first placed in commerce,” Dague 

v. Piper Aircraft Corp., 418 N.E.2d 207, 211 (Ind. 1981); Ind. 

Code § 34-20-3-1. The statute is of course designed to remove 

the specter of open-ended liability on product manufacturers 

for very old products. See, e.g., Stump v. Ind. Equip. Co., 601 

N.E.2d 398, 402 (Ind. Ct. App. 1992). Hartman was injured 

fourteen years after the purchase of his Wolverine. But there 

are two exceptions to the statute: (1) where a manufacturer 

refurbishes a product to extend its useful life, or (2) where a 

defective new component is incorporated into the old product. Richardson v. Gallo Equip. Co., 990 F.2d 330, 331 (7th Cir. 

1993). The question we face is whether one of these exceptions can breathe life into Hartman’s case, though our analy-
6 No. 13-3398

sis of the second exception will require us to address the district court’s partial exclusion of Hartman’s expert’s testimony.

A. Extension of useful life

The first exception to the statute of repose resets the limitations period where there is “any reconstruction or reconditioning ... which has the effect of lengthening the useful life 

of a product beyond what was contemplated when the 

product was first sold.” Richardson, 990 F.2d at 331. However, in Richardson (which, despite our inability to give a definitive interpretation to a state statute, has been accepted by 

Indiana courts as a reasonable reading, see, e.g., Florian v. 

Gatx Rail Corp., 930 N.E.2d 1190, 1201 (Ind. Ct. App. 2010)), 

we reasoned that the repose period is not reset by mere 

product upgrades or by adding new components that do not 

lengthen the product’s useful life. Richardson, 990 F.2d at 

331–32. 

Hartman cannot take advantage of this exception for two 

reasons. First, he cannot show that the conversion kit extended the useful life of his gun. Second, we doubt that the 

statute of repose could ever be reset by a user-installed component like the conversion kit.

Hartman’s expert, gunsmith Steven Howard, argued that 

the 209 conversion kit makes the Wolverine more accurate, 

more reliable, and gives it a higher muzzle velocity—making 

it, in effect, “an entirely new rifle.” But KR Warranty’s unrebutted expert testimony gives Hartman’s claim the lie: it 

seems the only useful metric of a muzzleloader’s lifespan is 

its barrel and bore. The conversion kit may make the gun 

more powerful, but it has no effect on either the barrel or 
No. 13-3398 7

bore and therefore has no effect on how long the gun will be 

usable. In other words, it is irrelevant that a change enhances 

the product’s performance if it does not also extend its useful 

life.

Hartman also argues that black powder muzzleloaders 

were no longer commonly used when he installed the conversion kit, so, in his view, the conversion kit did extend the 

useful life of the gun. But just because an item’s performance 

seems comparatively poor as technology improves doesn’t 

mean the product is obsolete for the purposes of the statute 

of repose. Consider, for example, an old laptop computer. 

An upgraded processer that increased the computer’s speed 

would make the computer more desirable, but would not 

extend its life. The computer could otherwise continue to 

function as it always had—even if other, faster computers 

became available and the performance of the old laptop now 

seemed comparatively inadequate. On the other hand, substituting a new battery for one on its last legs would extend 

the computer’s useful life—the new battery would be necessary to ensure that the computer could still function in the 

way it always had. This is the type of reconditioning that can 

reset the statute of repose. But modifications like the conversion kit fall squarely into the upgrade camp.

We note that even if Hartman could show that the conversion kit did extend the life of his muzzleloader, we still 

doubt whether the first exception to the statute would apply. 

The usual case invoking this exception involves a “manufacturer-refurbished” product—i.e., a product that is retrofitted 

or given new life by the manufacturer of the original product. See Carlson Rests. Worldwide, Inc. v. Hammond Prof’l 

Cleaning Servs., 2:06-CV-336, 2008 WL 4889687, at *4 (N.D. 
8 No. 13-3398

Ind. Nov. 12, 2008) (concluding that the statute of repose 

was reset where the manufacturer modified the product after it reached the consumer in order to extend its useful life);

Miller v. Honeywell, Inc., IP98-1742-C-M/S, 2001 WL 395149,

at *6 (S.D. Ind. Mar. 7, 2001) (the first exception to the statute 

of repose applies “if the manufacturer rebuilds the product, 

to the point of significantly extending the life of the product 

and rendering it in like-new condition.”). In contrast, we are 

not aware of any case in which a manufacturer is held responsible for selling a non-defective new component, but the 

consumer or another party installs the component incorrectly. Cf. Denu v. W. Gear Corp., 581 F. Supp. 7, 8 (S.D. Ind. 1983) 

(“[T]he introduction into commerce of a reconditioned 

product by a manufacturer may give rise to expectations of 

safety which would support a products liability action.”). If 

a consumer is injured by a defective new component, his relief from the statute’s time bar comes under the second exception, not the first.

B. Defective new component

We turn now to the second exception to the statute of repose. This exception applies where a manufacturer “merely ... incorporat[es] a defective component into an old product.” Richardson, 990 F.2d at 331. This exception might reach 

two different scenarios. First, suppose a manufacturer issues 

a new component for an old product and the new component is not itself defective. Suppose too that the old product 

is not defective; however, when the new component is added to the old product, the old product becomes unsafe by 

some meshing of components new and old. The exception

would permit the owner of the old product to sue the manufacturer despite the passage of more than a decade. 
No. 13-3398 9

A second scenario would be if the new component is itself defective. In this case, the term “exception” is really a 

misnomer. The suit would be permitted because the manufacturer cannot escape products liability by placing the 

shoddy new component (which would ordinarily be subject 

to suit for a decade if it stood on its own) into an older product that happens to be protected by the statute of repose. Id.

Hartman claims there were two product defects: a failure 

to warn and a design defect. We’ll first deal with his argument that KR Warranty failed to warn him about the danger

of accidental discharge from not swabbing the barrel of the 

rifle between shots. When Hartman received the Wolverine 

in 1994, the instructions told him to swab the barrel between 

shots while sighting in—but the warning was phrased only 

as a “recommendation” and was concerned with accuracy, 

not safety. KR Warranty did include actual warnings in its 

2007 and 2011 “Born to Hunt” manuals, which may have accompanied new Knight Rifles sold at those times. Hartman 

argues that KR Warranty’s inclusion of warnings in those

other manuals shows that it should have included the same 

warning in 2008, when Hartman bought the conversion kit. 

But the district court granted summary judgment for KR 

Warranty partly because it found that KR Warranty had no 

duty to warn with respect to the conversion kit in the first 

place.

It’s not entirely clear what Hartman is arguing about KR 

Warranty’s claimed failure to warn, though as we’ll see, it 

doesn’t make much of a difference in this case. At oral argument, Hartman’s counsel told us that he wished to focus 

on “the original Wolverine muzzleloader rifle, ... [which] 

was defective as equipped with the ... conversion kit.” This 
10 No. 13-3398

implies that Hartman was advancing a theory—consistent 

with the first scenario we posited—that neither the muzzleloader nor the conversion kit was defective, but that the 

muzzleloader became defective once it was outfitted with 

the conversion kit. Yet Hartman’s brief seems to argue that 

the conversion kit was a defective product standing alone, 

because the recessed face of the conversion kit’s new breech 

plug made it more likely that latent embers could get 

trapped in the breech plug and thereby prematurely ignite 

newly loaded propellant. Both parties agree that this recessed-face design was not itself a defect and was a necessary feature for the Wolverine to be able to ignite #209 primers. The problem, Hartman says, is that KR Warranty

should have warned him about the dangers of latent embers 

when it sold him the conversion kit. This argument goes to 

the second permutation of the statute of repose exception 

that we discussed above.

We do not need to sort out which one of these claims 

Hartman wishes to pursue, however, because both versions

depend on the same showing. In order to survive summary 

judgment, Hartman must show that the conversion kit increased the risk of latent embers or unexpected discharge beyond what already existed in the Wolverine. Why? Because 

if the installation of the conversion kit did not increase the 

existing risk of the gun accidentally firing, then KR Warranty’s duty to warn (if ever there was one) arose in 1994, when 

Hartman purchased the gun. And in that case, the statute of 

repose would bar Hartman’s action because the conversion 

kit introduced no new defect that would reset the ten-year 

clock (the statute of repose applies to failure to warn claims, 

just as it does to any other products liability action, Johnson 

v. Kempler Indus., Inc., 677 N.E.2d 531, 536 (Ind. Ct. App. 
No. 13-3398 11

1997)). Moreover, if the conversion kit did not increase the 

likelihood of latent embers, then it could not itself have been 

defective, either—because it would not have introduced a

new risk into the operation of the Wolverine. Hartman 

would therefore be unable to proceed with his suit alleging a 

defect in the conversion kit alone.

Because of the showing Hartman must make, our review 

actually turns on the district court’s decision to exclude portions of Steven Howard’s testimony. Howard testified that 

the 209 breech plug did in fact increase the likelihood of latent embers, so if his testimony should have been included, 

then Hartman survives summary judgment (as we resolve 

any factual disputes in his favor at this stage).

It is for the district court, pursuant to Federal Rule of Evidence 702, to serve as gatekeeper on expert testimony, ensuring that such testimony is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993).

The rubric for evaluating the admissibility of expert evidence considers whether the expert was qualified, whether 

his methodology was scientifically reliable, and whether the 

testimony would have assisted the trier of fact in understanding the evidence or in determining the fact in issue. 

Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 

2011). An expert’s methodology can be evaluated by considering its error rate, whether the methodology has been or is 

capable of being tested, whether it has been subject to peer 

review, and whether it is generally accepted in the relevant 

community of experts. Id. The district court employed the 

correct legal standards in evaluating the admissibility of 

Howard’s expert testimony, so we review the district court’s 
12 No. 13-3398

application of those standards for abuse of discretion. Lewis 

v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Howard’s qualifications as an expert were not challenged. But the district court nonetheless found Howard’s 

testimony inadmissible under Daubert. Howard’s testimony 

was purportedly based on common sense, as he indicated

that it was logical to conclude that a recessed face is more 

likely to retain embers than the concave design of the old 

breech plug. However, the district court was unimpressed,

because Howard’s theory was unsupported by evidence. 

The court noted:

Howard did not perform any kind of testing to prove 

that the 209 breech plug is more likely to retain latent 

embers. He introduced no evidence that his theory 

has been subjected to peer review or publication, or 

has been generally accepted among other firearms 

experts. He did not discuss the known or potential error rate of his theory relating to the 209 breech plug. 

He stated, instead, that “the problem of latent sparks 

in this Danger zone is easily foreseeable especially 

during the design process and this problem should 

have been addressed when the 209 Conversion Kit 

was in the developmental stage.”

Hartman v. EBSCO Indus., Inc., 3:10-CV-528-TLS, 2013 WL 

5460296, at *11 (N.D. Ind. Sept. 30, 2013). Hartman points to 

no evidence that would contradict the district court’s findings. Thus, the court’s reasoned decision was not an abuse of 

discretion.

Hartman’s next claim of defect is that KR Warranty 

should have included a modified cleaning jag with the con-
No. 13-3398 13

version kit. A jag is a tool that screws on to the end of the 

ramrod and is inserted into the barrel of the muzzleloader 

between shots to clean the barrel and clear away debris and

latent embers that might cause accidents. The testimony of 

Hartman’s expert Howard was again pivotal. Howard testified that KR Warranty’s failure to include a specially designed jag—one that could reach into the recessed face of the 

209 breech plug—made the product defective. In support, 

Howard designed and made a model of a new jag with a 

special tip that would supposedly fit into the recessed 

breech plug and better wipe away any embers that might be 

left behind. However, Howard’s new jag had never been 

used, his design had not been tested, and no similar jag was 

in use anywhere in the industry.

The district court excluded Howard’s alternative jag. 

Under Indiana law, expert testimony is required in order to 

show a design defect where the defect’s existence depends 

on matters beyond the common understanding of lay jurors. 

Cansler v. Mills, 765 N.E.2d 698, 706 (Ind. Ct. App. 2002); see 

also Witted v. Gen. Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 

1995) (noting, in applying Indiana law, that “to allow a 

plaintiff to establish the existence of a design defect by his 

mere assertion is ludicrous”). The court found that Howard’s methodology was unreliable and would not assist the 

trier of fact. See Bielskis, 663 F.3d at 893. The court noted that 

Howard’s methodology was not “scientifically reliable, ... 

[had] not been tested, or subjected to peer review or publication[, and that] his jag model [had] never been used in a

working firearm.” Hartman, 2013 WL 5460296, at *9. 

Hartman argues that the district court committed a legal 

error by too rigidly applying the Daubert factors without 
14 No. 13-3398

adapting its inquiry to firearms experts. He says that the Supreme Court’s decision in Kumho Tire Co., Ltd. v. Carmichael, 

526 U.S. 137 (1999), eschewed a rigid application of the “scientific” factors of Daubert, and that district courts must take 

such a flexible approach in evaluating testimony. Hartman 

correctly states the law, but it does not help him here. The 

hallmark of the Supreme Court’s expert testimony cases is

still reliability. “The objective of [Daubert] is to ensure reliability and relevancy of expert testimony. It is to make certain 

that an expert, whether basing testimony upon professional 

studies or personal experience, employs in the courtroom 

the same level of intellectual rigor that characterizes the 

practice of an expert in the relevant field.” Kumho, 526 U.S. at 

152. Howard’s modified jag was incomplete, inoperable, and 

unlike those used by KR Warranty or its competitors. Howard’s musings on the jag’s superiority cannot “substitute for 

scientific methodology and [are] insufficient to satisfy Daubert’s most significant guidepost”: reliability. Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002). The district court 

was within its “considerable leeway” in finding Howard’s

testimony and his alternative jag unreliable. Kumho, 56 U.S. 

at 152.

Even if the district court’s reliability determination was

incorrect, it had a second rationale for excluding the jag that 

is independently sufficient. The court found the jag irrelevant. Expert testimony is inadmissible if it is not helpful to 

the trier of fact, because it would not have “aid[ed] the jury 

in resolving a factual dispute.” Deimer v. Cincinnati Sub-Zero 

Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995). The testimony 

must “fit the issue to which the expert is testifying [and be] 

tied to the facts of the case.” Id. (internal quotation marks 

omitted). An alternate jag—even if one could have been fea-
No. 13-3398 15

sibly marketed with the conversion kit—would not have 

made a difference here because Hartman did not swab the 

barrel of his Wolverine before it discharged. The statute of 

repose cannot be reset if a new component, even if defective, 

did not cause the injury. Black v. Henry Pratt Co., 778 F.2d 

1278, 1283 (7th Cir. 1985).

We conclude by noting that even if Hartman were able to 

survive summary judgment against KR Warranty, he would 

still have no case against EBSCO. EBSCO had nothing to do 

with the Wolverine or the 209 conversion kit. EBSCO had no 

relationship with KR Warranty in 1994, as it did not acquire

KR’s stock until 1998. From that point forward EBSCO

owned, but did not operate, KR Warranty. KR Warranty

continued to have its own operations and separate officers. 

The district court found this corporate-parent relationship 

insufficient to expose EBSCO to Hartman’s claim. Hartman 

nominally appeals the grant of summary judgment for 

EBSCO, but makes no mention of the district court’s corporate-parent holding. The arguments are therefore waived. 

See, e.g., Wachovia Secs., LLC v. Banco Panamericano, Inc., 674 

F.3d 743, 758 (7th Cir. 2012).

The district court’s grant of summary judgment is 

AFFIRMED.