### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 339 8
A DAM H ARTMAN , Plaintiff

- Appellant ,

v.
EBSCO I NDUSTRIES , I NC

. , 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. Springman n , Judge

.

____________________
A RGUED A PRIL 14, 2014

— D ECIDED J ULY 10, 2014

____________________

Before W OOD , Chief Judge , and P OSNER and F LAUM , Circuit Judges

. F LAUM , 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 newe r, pelletized prope llants 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 pr o-2 No. 13

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pellants more reliably. The next day, H artman was sight ing in his “upgraded” muzzleloader when the gun unexpectedly discharged as he was try ing 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 Warr anty on theories of negligence and strict liability. However , Indiana has a ten

- year stat ute of repose for products

- liability actions , and his gun was then fourteen years old. There are two exceptions to the statute, but w e agree with the district court th at Hartman cannot sa tisfy ei ther 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 W olverine. Hartman used the rifle for years; by his e stimate , he fired it between 500 and 600 times before his acc ident

. As originally manufactured, the Wolverine used a #11 percussion cap as its firing mechanism . A percussion cap u ses a volatile chemical to provide a spark that ignites the pr imary black powder charge when struck by the gun’s ha mmer or striker bolt

. See generally 10 Innovations that Led to the Modern Bullet , Fulminate of Mercury/Percussion Cap , H OW S T UFF W ORKS , http://www.howstuffworks.com/10

- bullet

innovations4.htm#page=4 (last visited July 9 , 2014). Once i gnited, this black

- powder charge propels the gun’s proje ctile

— either a bullet or a patched round ball (a lead ball wrapped in lubricated cloth)

— out of the barrel

. The mecha n-No. 13

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ical par t of many modern muzzleloaders

— with “in

- line” locks, ra ther than older “sidelock” guns

— looks like this:

Kalko m ey Enters

. , Inc., In

- Line Muzzleloader , T ODAY ’ S M UZZLELOADER C OURSE , http://www.hunter

- ed.com/muzzle loader/ studyGuide/In

- Line

- Muzzleloader/222099_700062667 (last visited July 9 , 2014) ( modified )

. M any newer muzzleload er models employ a primer

- cap mechanism

— originally designed for use in shotguns

— which provides a hotter spark when struck by the striker

. Primer c aps al low muzzleloader users to eschew black po wder as a propellant in favor of synthetic Pyrodex pellet s (which are manufactured by nonparty Hodgdon) . Hartman tried to use Pyrodex pellets in his percussion

- cap

- equipped Wolverine at some point after the pe llets 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 a lso manufactured th e 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 hot ter spark and thereby ignite Pyrodex pellets more reliably. Hartman installed the kit himself on Novembe r 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. H e fired a con ical 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 nip ple 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 P y ro dex pel lets into the muzzle of the rifle followed by another patched round ball. Hodgdon warns against using patched round balls with Pyrodex pe llets, because using round balls instead of bullets when firing Pyrodex pellets carries an increased risk of unexpected di scharge. Hartman attempt ed to seat the patched round ball in the barrel of the gun with a ramrod. The Wolverine then u nexpectedly discharged, causing both the ramrod and the round ball to pass through both of Hartman’s hands and his right fore arm. On November 24, 2010, Hartman filed suit against seve ral 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 p redecessor , Modern Muzzleloading

. Hartman originally named a third defendant, PI, Inc.

—No. 13

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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 umbrell a but appears to exist for the limited purpose of administering warranties for and claims against pre

- PI sale rifles. The d efendants 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 a rguments related specifically to corporate parent EBSCO.) The district court ultimately granted summary judgment for KR Warranty, concluding that Indiana’s statu t e of repose

— which sets a ten

- year outer limit on pr oducts liability actions in Indiana

— barred Hartman’s claim

. II. Discussion We review the district court’s grant of summary jud gment 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 com merce , ” 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 op en

- 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

ar e two exceptions to the st atute: (1) where a manufacturer refurbishes a product to extend its useful life , or (2) where a defective new component is incorporated into the old pro duct. Richardson v. Gallo Equip. Co. , 990 F.2d 330, 331 (7th Cir. 1993). T he question we face is whether one of these exce ptions can breathe life into Hartman’s case , though our anal y-6 No. 13

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sis of the second exception will require us to address the di strict court’s partial exclusion of Hartman’s expert ’s testim ony

. A. Extension of useful life The first exception to the statute of repose resets the lim itations period where there is “any reconstruction or recond itioning ... 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. Howe ver, i n Richardson (which, despite our inability to give a d efin i tive 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 excepti on for two reasons. First, he cannot show that the conversion kit e xtended the useful life of his gun . Second, we doubt that the statute of repose could ever be reset by a user

- installed co mponent like the conversion kit. Hartman’s expert, gunsmith Steven Howard, argued that the 209 conversion kit makes the Wolverine more accurate, more reliable, and giv es it a higher muzzle velocity

— making it, in ef fect, “an entirely new rifle.” But KR Warranty’s unr ebutted expert testimon y gives Hartman’s claim the lie: i t

seems the only useful metric of a muzzleloader’s lifespan is its barrel and bore. T he conversion kit may make the gun more powerful, but it has no effect on either the barrel orNo. 13

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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 co nversion kit, so , in his view, the conversion kit did extend the useful life of the gun . But j ust 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 . T he computer could otherwise continue to function as it al ways had

— even if other, faster computers became available and the performance of the old laptop now seemed comparatively inade quate . On the other hand, su bstituting a new battery for one on its last legs would extend the computer’s useful life

— the new battery would be nece ssary to ensure that the compu ter could still function in the way it always had. This is the type of reconditioning that can reset the statute of repose

. B ut modifications like the conve rsion kit fall squarely into the upgrade camp

. We note that e ven if Hartman could show that the co nv ersion 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 “manufa ctur er

- refurbished” product

— i.e., a product that is retrofitted or given new life by the manufacturer of the original pro duct

. See Carlson Rests. Worldwide, Inc. v. Hammond Prof’l Clea n ing 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 m odified the product a fter it reached the consumer in order to extend its useful life); Miller v. Honeywell, Inc. , IP 98

- 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 reb uilds 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 m anufacturer is held r esponsible for selling a non

- defective new component , b ut the consumer or another party installs the component incorrec tly. 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 r elief from the statute’s time bar comes under the s econd e xception, not the first. B. Defective new component We turn now to the second exception to the statute of r epose. This exception applies where a manufacturer “mer ely ... incorporat[es] a defective component into an old pro duct.” Richardson , 990 F.2d at 331

. T his exception might reach two different scenarios. First, suppose a manufacturer issues

a new component for an old product and the new comp onent is not itself defective. Suppose too that the old product is not defective; h owever, when the new component is ad ded to the old product, the old product becomes unsafe by some meshing of components new and old. T he exception would permit the owner of the old product to sue the man ufacturer despite the passage of more than a decade.No. 13

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A second scenario would be if the new component is i tself de fec tive. I n this case , t he term “exception” is really a misnom er . The suit would be permitted because the man ufacturer 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 pro duct 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. W e’ll first deal with his arg ument that KR Warranty failed to warn him about the dan ger 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 be tween shots while sighting in

— but the warning was phrased only

as a “ recommendation ” and was concerned with accu racy, not safety. KR Warranty did include actual warnings in its 2007 a nd 2011 “Born to Hunt” manuals, which may have a ccompanied new Knight Rif les sold at those times . Hartman argues that KR Warranty’s inclusion of warnings in those other manuals shows th at it should have included the same

warn ing 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 War ranty’s claimed failure to warn , though as we’ll see, it doesn’t make much of a difference in this case. At oral a rgument, Hartman’s counsel told us that he wished to focus on “th e original Wolverine muzzleloader rifle , ... [which] was defective as equipped with the ... con version kit .” This10 No. 13

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implies that Hartman was advancing a theory

— consistent with the first scenario we posit ed

— that neither the muzzl eloader 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 b reech 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 r ecessed

- face de sign was not itself a defect and was a nece ssary feature for the Wol verine to be able to ignite #209 pr imers. 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 ex ception 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 . I n order to survive summary judgment , Hartman must show that the conversion kit i ncreased the risk of latent embers or unexpected discharge b eyond what already existed in the Wolverine. Why? Because i f the installation of the conversion kit did not increase the existing risk of the gun accidentally firing , then KR Warra nty’s duty to war n (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 be cause 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 o f latent embers, then it could not itself have been defective, either

— because it would not have introduc ed 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 al one. Because of the showing Hartman must make , our review actually turns on the district court’s decision to exclude po rtions of Steven Howard’s testimony. Howard testified that the 209 breech plug did in fact increase the likelihood of l atent embers, so i f 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 E vidence 702, to serve as gatekeeper on expert test imony, e nsuring that such testimony is “not only relevant, but reli able.” Daubert v. Merrell Dow Pharms

. , 509 U.S. 579, 589 (1993). T he rubric for evaluating the admissibility of expert ev idence considers whether the expert was qualified, whether his metho dology was scientifically reliable, and whether the testimony would have assisted the trier of fact in unde rstanding 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 metho dology can be evaluated by consi dering 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’s12 No. 13

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application of those standards for abuse of discretion. Lewis

v. CITGO Petroleum Corp. , 561 F.3d 698, 70 5 (7th Cir. 2009). Howard’s qualifications as an expert were not cha llenged . B ut 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 logic al 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 an y 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 e rror rate of his theory relating to the 209 breech plug. He stated, instead, that “ t he 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 fin dings. T hus, t he court’s reasoned decision was not an abuse of dis cretion

. Hartman’s next claim of defect is that KR Warranty should have include d a modified cleaning jag with the co n-No. 13

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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 test ified that KR Warranty’s failure to i nclude a specially d esigned 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 any where in the industry.
The district court excluded Howard’s alternative jag. Under Indiana law, e xpert testimony is required in order to show a design defec t 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) ( n oting, in applying Indiana law, that “ t o allow a plaintiff to establish the existence of a design defect by his mere assertion is ludicrous”). The court found that Ho ward’s methodology was unreliable and would not assist the trier of fact. See Bielskis , 663 F.3d at 893. T he court noted that Howard’s methodology was not “scientifically reliable, ... [had] not been tested, or subjected to peer review or public ation[, and th at] 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 without14 No. 13

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adapting its in quiry to firearms experts . He says that the S upreme Court’s decision in Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137 (1999), eschewed a rigid application of the “sc ientific” factors of Daubert , and that district courts must take such a flexible approach in evaluating testimony. Ha rtman 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 reli ability 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 m odified jag was incomplete, inoperable, and unlike those used by KR Warranty or its competitor s . Ho ward’s musings on the jag’s superiority cannot “ substitute for scientific methodology and [are] insufficient to satisfy Dau bert ’s most significant guidepost ” : reliability

. Chapman v. Ma ytag Corp. , 29 7 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 reliabi lity determination was incor rect, it had a second rationale for excluding the jag that is independently sufficient. The court found the jag i rrel evant. Expert testimony is inadmissible if it is not helpful to the trier of fact, because it would not have “a id[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. ( in ternal quotation marks omitted). A n al ternate jag

— even if one could have been fe a-No. 13

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sibly mar keted with the conversion kit

— w ould not have made a difference here because Hartman did not swab the barrel of his Wolverine before it discharged. The statute of repo se 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 woul d still have no case against EBSCO. EBSCO had nothing to do with the Wolve rine or the 209 conversion kit. EBSCO had no relationship with KR Warranty in 1994, as it did not ac quire KR’s stock until 1998. From that point forward EBSCO owned, but did not oper ate , KR War ranty. KR Warranty continued to have its own operations and separate officers. The dist rict court found this corporate

- parent relationship insufficient to expose EBSCO to Hartman’s claim

. Hartman nominally appeals the grant of summary judgment f or EBSCO , but makes no mention of the dis trict court’s corp orate

- 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 distr ict court’s grant of summary judgment is A FFIRMED

.