IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BRIAN BONNER, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 3:06-cv-00715-MHT

)

INTERSTATE ARMS CORP., et al., )

)

Defendants. )

PLAINTIFF’S MEMORANDUM BRIEF IN OPPOSITION TO

CHINA NORTH INDUSTRIES CORPORATION’S

MOTION FOR SUMMARY JUDGMENT

Brian Bonner offers this memorandum brief in opposition to the motion for 

summary judgment filed by China North Industries Corporation (“Norinco”). For the 

reasons stated herein, plaintiff asks this Court to deny Norinco’s request for a summary 

judgment.

Norinco’s Asserted Grounds

On February 14, 2008, Norinco electronically filed (1) a motion for summary 

judgment, (2) supporting memorandum brief, and (3) specified evidentiary materials. In 

the summary-judgment motion, Norinco generically asserted that it was entitled to a 

summary judgment because “there is no genuine issue of material fact and Norinco is 

entitled to judgment as a matter of law.” Defendant China North Industries 

Corporation’s Motion for Summary Judgment at 1. In its supporting memorandum brief, 

Norinco asserted two specific grounds.

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The first ground was that “the evidence [in the record] demonstrates that it was 

Plaintiff’s own negligence that proximately caused Plaintiff’s injury.” Brief in Support of 

Defendant China North Industries Corporation’s Motion for Summary Judgment at 1. 

Norinco contended that Brian Bonner was contributorily negligent as a matter of law and 

that, if he was contributorily negligent, he is barred him from recovering monetary 

damages from Norinco. Id. at 8-10.

The second ground was that “there is no evidence that any alleged defect in the 

shotgun contributed to Plaintiff’s injury.” Id. at 10. Specifically, Norinco contended that

“[t]here is simply no evidence supporting a claim that the barrel became detached from 

the shotgun while Plaintiff was handling it.” Id. at 11. According to Norinco, “Plaintiff’s 

case ... is entirely dependent on” the barrel becoming detached from the shotgun while

Brian Bonner was handling it and this fact, the barrel detaching, “is the basis of his 

Complaint and ... the basis of his expert’s theory of causation.” Id. at 11.

Before proceeding, Brian Bonner would point out that, in its “Statement of Facts,” 

Norinco wrote:

The subject shotgun is a Norinco Model 98, 12-gauge, 18-

inch barrel, pump shotgun, serial number 0016971. 

(Report of John T. Butters, p. 1, lines 2-3.) Norinco did not 

manufacture the subject shotgun. (Motion for Leave to File 

Plaintiff’s Second Amended Complaint (Doc. #40), ¶ 5.) 

The shotgun was sold to Norinco in July 1999. (Norinco’s 

Response to Plaintiff’s Interrogatories, ¶ 2.) Norinco 

exported the shotgun to the United States through Interstate 

Arms, the importer, in November 1999. Id.

Id. at 2-3. In seeking a summary judgment, Norinco did not assert that it cannot be held 

legally liable under Alabama products-liability law because Norinco did not actually 

manufacture the subject shotgun. At least for purposes of this summary-judgment 

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proceeding, Norinco admits that the subject shotgun is “a Norinco Model 98.” Since the 

issuance of Sears, Roebuck & Co. v. Morris, 273 Ala. 218, 136 So. 2d 883 (1961), it has 

been Alabama law that an entity that places its own trade name on a product is treated as 

the product’s manufacturer for purpose of imposing legal liability for introducing a 

defective product into the commercial market. See also Atkins v. American Motors 

Corp., 335 So. 2d 134, 143 (Ala. 1976). In the present matter, Norinco must be treated as 

the manufacturer of the subject shotgun, and not a mere distributor.

Basic Summary-Judgment Principles

“The party moving for summary judgment always has the burden of persuasion on 

such motion,” only “[t]he burden of going forward [with proffering evidence]... [may] 

shift during the motion process.” Steven Baicker-McKee et al., Federal Civil Rules 

Handbook 2008 at 56 (2007). In a summary-judgment proceeding, a trial court may 

never weigh the evidence or find the facts; instead, the trial court is narrowly restricted to 

determining the threshold issue of whether there is a genuine issue as to material facts 

that must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. 

Ct. 2505, 91 L. Ed. 2d 202 (1986). Therefore, the evidence proffered by the non-movant 

must be accepted as true and must be viewed in the light most favorable to the 

nonmovant, with all doubts resolved against the movant. Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

Additionally, the non-movant enjoys the benefit of all reasonable inferences that may be 

drawn in the non-movant’s favor. Id. A reasonable inference need not be the more 

probable or likely than other inference but need only be an inference that may be 

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reasonable drawn from the evidence. See Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. 

Ct. 1545, 1552, 143 L. Ed. 2d 731 (1999); Patterson & Wilder Const. Co., Inc. v. United 

States, 226 F.3d 1269, 1273 (11th Cir. 2000).

To avoid constitutional concerns, in a summary-judgment proceeding, the movant 

must effectively rely solely on truly undisputed facts because a summary judgment 

should only be granted if the movant is entitled to a summary judgment based on the 

application of the applicable legal principles to the factual record viewed in the light most 

favorable to the non-movant. In a summary-judgment proceeding, the movant must 

accept the non-movant’s “best case” and persuade the court that, under the applicable 

law, the non-movant could never prevail under the non-movant’s “best case.” Thus, the 

movant’s “Statement of the Fact” must be a recounting of truly undisputed facts and 

should never be the movant’s “version” of the factual record.

Statement of Pertinent Facts

As demonstrated herein, Norinco presented its version of the factual record and its 

inference from its version of the factual record. Also, as demonstrated herein, Norinco 

ignored material facts found in the record.

Out of a concern for brevity, Brian Bonner will incorporate his statement of 

pertinent facts into his argument section of this memorandum brief. Presently, Brian 

Bonner would point out a few “highlights” of his rendition of the salient facts; in the 

argument section, references to the factual record will be cited. Brian Bonner was just 

sixteen when the underlying accident occurred. Brian Bonner had merely “target” shot 

various firearms and understood very basic gun-safety rules. Brian Bonner knew little 

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about the inner workings of firearms and had never disassembled a firearm. Brian 

Bonner picked out the subject Norinco shotgun because he liked its color and small barrel 

length. Brian Bonner possessed the shotgun for just ten days prior to the underlying 

accident. While an eleven-year old friend was shooting the shotgun, the shotgun failed to 

discharge or jammed. Brian Bonner took hold of the shotgun so that his friend could 

fetch an adult because Brian Bonner appreciated that a knowledgeable adult should 

determine why the shotgun failed to discharge or jammed. While Brian Bonner was 

holding the shotgun with the barrel pointed upward, Brian Bonner sensed the barrel 

sliding off. Instinctively, Brian Bonner placed his right hand on top of the barrel to 

stabilize the barrel. Inadvertently, Brian Bonner’s left hand hit the trigger causing the 

shotgun to discharge. Expert testimony was offered that the barrel came loose due to 

defective manufacture or design; specifically, two experts opined that the weld, brazing 

joint or soldered stud securing the barrel failed due to defective manufacture or design. 

Brian Bonner was injured in a foreseeable accident scenario and because the subject 

Norinco shotgun was defective or unreasonably dangerous.

Argument

Norinco utterly fails to conclusive prove that Brian Bonner was 

contributorily negligent as a matter of law.

In its supporting memorandum brief, Norinco cited and discussed but two 

Alabama appellate opinions, namely, Burleson v. RSR Group Florida, Inc., ___ So. 2d 

___, 2007 WL 2745781 (Ala. Sep. 21, 2007), and Aplin v. Tew, 839 So. 2d 635 (Ala. 

2002). Norinco ignored general principles regarding contributory negligence as a matter

of law found in Alabama appellate opinions.

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“The question of contributory negligence is normally one for the [trier of fact to 

resolve at trial].” Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 860 (Ala. 

2002). To establish contributory negligence as a matter of law in a summary-judgment 

proceeding, Norinco bears a very heavy burden. See H.R.H. Metals v. Miller, 833 So. 2d 

18, 26-28 (Ala. 2002). In establishing contributory negligence as a matter of law in a 

summary-judgment proceeding, an additional element is added to the standard elements 

of this affirmative defense that must be proven at trial; namely, Norinco must 

demonstrate “the plaintiff’s appreciation of the danger was a conscious appreciation at

the moment the incident occurred.” Hicks v. Commercial Union Ins. Co., 652 So. 2d 211, 

219 (Ala. 1994)(citations omitted). As stated by the Supreme Court of Alabama:

To establish contributory negligence as a matter of 

law, a defendant seeking a summary judgment must show 

that the plaintiff put himself in danger’s way and that the 

plaintiff had a conscious appreciation of the danger at the 

moment the incident occurred. The proof required for 

establishing contributory negligence as a matter of law 

should be distinguished from an instruction given to a jury 

when determining whether a plaintiff has been guilty of 

contributory negligence. A jury determining whether a 

plaintiff has been guilty of contributory negligence must 

decide only whether the plaintiff failed to exercise 

reasonable care. We protect against the inappropriate use 

of a summary judgment to establish contributory 

negligence as a matter of law by requiring the defendant on 

such a motion to establish by undisputed evidence a 

plaintiff’s conscious appreciation of danger.

Hannah, 840 So. 2d at 860-61 (citations omitted). In other words, Norinco must 

conclusively prove that Brian Bonner had a “conscious appreciation of the danger at the 

moment [the injury] occurred.” Moreover, while the trier of fact at trial must use an 

objective standard in deciding if a plaintiff was contributorily negligent by not exercising 

due care, a court in a summary-judgment proceeding must use a more subjective standard 

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in deciding whether a plaintiff consciously appreciated the danger at the moment the 

incident occurred.

In Hannah, as well as in Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 

(Ala. 1978); Jones by and through Jones v. Power Cleaning Contractors, 551 So. 2d 996 

(Ala. 1989); Bridges v. Clements, 580 So. 2d 1346 (Ala. 1991); and Gulledge v. Brown & 

Root, Inc., 598 So. 2d 1325 (Ala. 1992), the Supreme Court of Alabama declared that 

mere “heedlessness” or “forgetfulness” will not support a finding of contributory 

negligence as a matter of law and that a general appreciation of a potentially hazardous 

condition is not the same as a “present” conscious appreciation of the specific hazard.

Under Alabama law, a determination of contributory negligence as a matter of 

law must be the rare exception. As previously noted herein, in Hannah, the Supreme 

Court of Alabama cautioned against a trial judge finding contributory negligence as a 

matter of law unless there is undisputed evidence of the plaintiff’s conscious appreciation 

of the specific danger.

In Aplin v. Tew, 839 So. 2d 635 (Ala. 2002), one of the opinions cited by Norinco,

the Supreme Court of Alabama did affirm the trial court’s granting of a judgment as a 

matter of law after the plaintiff rested his case-in-chief at trial based on a 14-year-old 

plaintiff’s contributory negligence as a matter of law in connection with his handling of 

fireworks. Aplin had placed some loose firecrackers in his waistband; as he was walking, 

a bottle rocket struck him and ignited the firecrackers in his jeans. Aplin unsuccessfully 

argued that there was not conclusive evidence of his then-present conscious appreciation 

of the danger posed by carrying firecrackers on his person. Fatal to Aplin’s argument

was his admission “on cross-examination that he knew that placing fireworks in his 

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waistband was dangerous and that he knew the fireworks placed in his waistband would 

explode if they were ignited.” 839 So. 2d at 638. Alpin could not rely on his surprise as 

to the “specific means” by which the firecrackers were ignited since “[t]he evidence 

[was] undisputed that he placed himself in harm’s way by putting firecrackers in his 

clothing while in the presence of ignited fireworks and that he was aware of the danger of 

such circumstances.” 839 So. 2d at 639. The “specific” danger was carrying the 

firecrackers in his waistband where they might be ignited. The particular facts, including 

Alpin’s admissions, permitted a determination of contributory negligence as a matter of 

law.

In Burleson v. RSR Group Florida, Inc., ___ So. 2d ___, 2007 WL 2745781 (Ala. 

Sep. 21, 2007), the other opinion cited by Norinco, the plaintiffs brought a wrongfuldeath action. Stanley Burleson, the deceased, was a mature adult. His widow “testified 

that Stanley had a ‘rule’ that all firearms he kept in the house be stored unloaded.” His 

surviving son “testified that Stanley was ‘safety conscious’ and had taught him the 

importance of never keeping a live round chambered in line with the hammer and the 

firing pin.” Stanley Burleson was a mature adult and an experienced gun owner. The 

deceased had placed his single-action revolver in its holster and was in the process of 

hanging the holstered revolver on a gun rack when the revolver fell from the holster, 

struck a desk and discharged. It was undisputed that there would have been no discharge 

if the revolver had been unloaded. Despite being “safety conscious” and in violation of 

his own personal “safety” rule, Stanley Burleson did not unload the revolver before 

storing it. The majority of justices found that, in light of the statements regarding Stanley 

Burleson’s “safety consciousness” regarding handling his firearms, the only possible 

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factual conclusion was that Stanley Burleson consciously appreciated the danger of not 

unloading his revolver before putting it up. Stanley Burleson consciously breached his 

own “safety” rule; if he had unloaded his revolver, there would have been no discharge. 

Again, the particular facts, including Stanley Burleson’s personal rule against storing a 

loaded weapon, permitted a determination of contributory negligence as a matter of law.

In the present matter, it is not enough for Norinco to cite an Alabama appellate 

opinion in which a teenager was found to have been contributorily negligent as a matter 

of law and to cite another Alabama appellate opinion in which an adult who did not 

unload his revolver before endeavoring to place it on a gun rack was found to have been 

contributorily negligent. Instead, Norinco must point out undisputed evidence of Brian 

Bonner’s conscious appreciation of danger as he was handling the subject shotgun when 

it discharged and must conclusively negate that Brian Bonner was merely “heedless” or 

“forgetful.” Norinco, as well as this Court, may not rely on Norinco’s version or 

“reading” of the proffered deposition testimony. Norinco, as well as this Court, must 

accept the version or “reading” of the proffered deposition testimony that is most 

favorable to Brian Bonner. In its supporting memorandum brief, Norinco totally ignored 

this general principle and relies on its version or “reading” of the proffered deposition 

testimony.

On November 15, 2003, Brian Bonner was sixteen years old. (Deposition of 

Brian Joseph Bonner at 21)(Norinco submitted a copy of Brian Bonner’s deposition as 

“Exhibit A” to Defendant China North Industries Corporation’s Evidentiary Submission 

in Support of Its Motion for Summary Judgment) From a young age, he had been 

exposed to firearms. (Id. at 18) He had never gone hunting with a firearm; instead, he 

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had only engaged in shooting stationary targets. (Id. at 20-21) Brian Bonner had never 

disassembled a firearm or dismounted a barrel from a shotgun. (Id. at 29-30). Brian 

Bonner did not know how to dismount a barrel on a shotgun. (Id. at 48) Brian Bonner 

decided to purchase the subject Norinco shotgun because he liked that it was black and its 

eighteen-inch barrel that made the shotgun “easier for [him] to hold.” (Id. at 37-38) 

Through his mother, Brian Bonner purchased the subject Norinco shotgun on November 

5, 2003. (Id. at 44) Between November 5th and 15th, Brian Bonner fired the subject 

Norinco shotgun a few times on three or four occasions. (Id. at 51)

Brian Bonner had been taught basic gun safety:

Never keep [a weapon] loaded. If it has any shells in it, 

don’t have it cocked back or ready to be fired until you are 

ready to shoot it. Always keep it on safety and never have 

it aimed at anybody or anything unless you know you’re 

going to shoot a target or something.

(Id. at 26) Brian Bonner appreciated that, generally, he should not walk around with a 

loaded weapon. (Id.) When asked “what [he should] do if a gun fails to fire,” Brian 

Bonner replied: “I guess, try to get somebody that knows what they’re doing to check it 

out.” (Id. at 27-28)

Brian Bonner was not very knowledgeable about the workings of firearms, 

including shotguns. He had never disassembled a firearm; he did not know how to 

dissemble a firearm. Brian Bonner had only engaged in basic target shooting. There is 

no indication that he had ever confronted or even observed an incident where a firearm 

misfired or jammed. As he testified, he thought that it would be good to seek the help of 

a knowledgeable adult if a firearm misfired or jammed. Brian Bonner selected the 

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subject Norinco shotgun based on its color and barrel size. Brian Bonner was simply a 

causal shooter of firearms who knew very little about how firearms functioned.

Brian Bonner had been taught just basic “gun safety” rules. There is no evidence 

that anyone schooled him what to do if a firearm misfired or jammed. Brian Bonner 

could only speculate that it would be best to seek the help of a knowledgeable adult if he 

encountered a misfire or jamming incident. Brian Bonner was unaware of any specific 

acts he should do if such an incident occurred.

As to the underlying accident, Brian Bonner testified that, while B. J. Sadler was 

shooting the subject Norinco shotgun, he heard a metal sound and the shotgun failed to 

fire or jammed. (Id. at 66-67 & 69-70) Then, Brian Bonner took the shotgun from B. J. 

Sadler so that B. J. Sadler could go get some assistance from an adult. (Id. at 72 & 78) 

[At the time of this accident, B. J. Sadler was eleven or twelve years old. (Deposition of 

Christopher Dennis at 32)(Norinco submitted a copy of Christopher Dennis’s deposition 

as “Exhibit E” to Defendant China North Industries Corporation’s Evidentiary 

Submissions in Support of Its Motion for Summary Judgment)] Brian Bonner took hold 

of the shotgun with both hands, left hand on the bump area and right hand on the stock. 

(Id. at 74) When, while pointed upward, the barrel started to move, giving the impression 

of beginning to fall off, Brian Bonner reflexively grabbed the barrel with his right hand. 

(Id. at 73 & 75) The following exchange occurred in Brian Bonner’s deposition:

QUESTION: Is it possible, when you were out 

there in the field right before you injured yourself, that the 

barrel did not fall off?

ANSWER: I really don’t know. I believe it was 

sliding off.

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(Id. at 87-88)(Emphasis added.) Without knowing why, Brian Bonner’s right hand 

instinctively grabbed the top of the barrel. (Id. at 75-76) Suddenly and unexpectedly, the 

shotgun discharged, injuring Brian Bonner’s right hand. (Id. at 76) It is undisputed that 

B. J. Sadler was only a short distance away when the shotgun discharged. (Id. at 80)

Brian Bonner testified that, when the subject Norinco shotgun misfired or 

jammed, he took possession of the shotgun from the younger B. J. Sadler, certainly, a 

reasonable act under the circumstances. Brian Bonner testified that he instructed B. J. 

Sadler to go to the nearby house and fetch an adult, certainly, a reasonable act under the 

circumstances given Brian Bonner’s age and lack of any knowledge regarding the 

workings of firearms. Brian Bonner testified that he held the shotgun with the barrel 

pointed upward, certainly a reasonable act under the circumstances. Brian Bonner 

testified that, as B. J. Sadler was walking away, the barrel of the shotgun seemed to slide 

off and he instinctively grabbed the top of the barrel with his right hand. Brian Bonner 

never said that he tried to unjam the shotgun or to determine why the shotgun misfired or 

jammed. To the contrary, his testimony supports a finding that he simply took possession 

of the shotgun with the intention of holding it with the barrel pointed upward until an 

adult came to take charge of the shotgun. His testimony supports a finding that Brian 

Bonner would have still been standing holding the shotgun with the barrel pointed 

upward when an adult arrived if he had not sensed the barrel seeming to slide off. Brian 

Bonner’s intention was to do nothing with the shotgun but to hold it with the barrel 

pointed upward because he appreciated that he did not know how to deal with a jammed 

shotgun.

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Norinco seeks to rely on a bunch of hearsay or the speculation of noneyewitnesses that Brian Bonner attempted to unjam the shotgun, something that he 

affirmatively denied and is inconsistent with the discharge occurring shortly after Brian 

Bonner took the shotgun from B. J. Sadler and after B. J. Sadler had just walked a short 

distance away. After hearing testimony at trial, the trier of fact may accept Brian 

Bonner’s version of events and reasonably find that Brian Bonner did nothing but 

instinctively react to a feeling that the barrel was started to slide off. There is a total 

absence of undisputed evidence that Brian Bonner consciously appreciated any danger if 

he held the shotgun with the barrel pointed up until an adult arrived to take possession of 

the shotgun. There is absolutely no evidence that, prior to the incident, Brian Bonner 

appreciated that the subject Norinco shotgun’s barrel was loose; Brian Bonner was 

surprised when the barrel started to slide off. There is no undisputed evidence that Brian 

Bonner tried to unjam the shotgun; instead, there is his testimony that he chose to do 

nothing but hold the shotgun until an adult arrived to take possession of the shotgun. 

Brian Bonner followed his “safety rule” of letting a knowledgeable adult deal with the 

misfiring or jammed shotgun.

Following Brian Bonner’s accident, Chris Dennis volunteered to retrieve the 

subject Norinco shotgun and other weapons that had been left at the accident scene so 

“nobody else [would] pick them up.” (Deposition of Christopher Dennis at 17) When 

Chris Dennis found the subject Norinco shotgun, he observed “one shell hanging halfway 

out the chamber.” (Id. at 18) As Chris Dennis was carrying the subject Norinco shotgun 

from his vehicle into his house, “the whole barrel fell of the [shot]gun.” (Id. at 19-20) 

The following exchange occurred in Chris Dennis’s deposition:

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QUESTION: When you first picked upon the 12 

gauge, did you notice that the barrel was loose or anything?

ANSWER: I didn’t really pay too much attention to 

it.

(Id. at 20) In other words, Chris Dennis never testified that the barrel was securely 

affixed to the subject shotgun when he picked it off the ground. Chris Dennis merely 

testified that the barrel did not fall off until he was entering his residence. Chris Dennis’s 

statements do not refute Brian Bonner’s testimony that he sensed the barrel beginning to 

slide. It is reasonable to infer that the barrel was loose when Brian Bonner took 

possession of the shotgun from B. J. Sadler but that the barrel did not completely 

disengage and fall off until later.

In summation, Brian Bonner’s description of the events surrounding the 

underlying accident belies any conscious appreciation of the particular danger, much less 

a “present” conscious appreciation that the barrel might begin to move or slide. Brian 

Bonner did not voluntary place his right hand at the top of the shotgun’s barrel; instead, 

in a sudden, instinctive reaction, he moved his right hand to the top of the barrel when he 

sensed the barrel beginning to slide off. Brian Bonner was not “fooling around” with the 

shotgun attempting to discover why the shotgun had failed to fire. If Brian Bonner’s 

testimony is accepted as true, then, he did not act unreasonable and, certainly, was not 

contributorily negligent as a matter of law. Norinco woefully failed to prove contributory 

negligence as a matter of law; this is not one of those very rare occasions were a trial 

court may find contributory negligence as a matter of law.

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Brian Bonner proffers ample substantive evidence that the subject 

Norinco shotgun was defective and that this defectiveness of a 

proximate cause of his injuries.

The extreme brevity of Norinco’s argument regarding its second asserted ground 

as to why it is entitled to the requested summary judgment evinces the “shallowness” of 

Norinco’s argument, as well as the lack of merit in its argument. Norinco cited but a 

single legal authority, namely Evers v. General Motors Corp., 770 F.2d 984, 986 (11th 

Cir. 1986); again, evincing the non-meritorious nature of Norinco’s argument.

In Evers, Marcia Evers was severely injured when a Toyota ran a stop sign and 

struck the left side of her Grand Prix near the driver’s door. She contended that the 

Grand Prix was defectively designed due to the absence of air bags, meaning an air bag in 

the steering wheel. In opposing General Motors’s summary-judgment motion, Evers 

relied on an affidavit executed by Carl Thelin, a design engineer. In his terse affidavit, 

Thelin stated:

Based on my analysis, it is my opinion that an “air 

bag” occupant restraint system would probably have 

reduced the severity of, or prevented, the injury sustained 

by Marcia Evers in this collision.

It is my further opinion that the failure of General 

Motors Corporation to incorporate an “air bag” system of 

automatic crash protection for the occupants of this 

automobile constituted a defect in the design of the 

automobile.

770 F.2d at 986 n.2. The Eleventh Circuit observed that “the Thelin affidavit ... fail[ed] 

to provide any specific facts to support appellant’s claim” and, “[m]oreover, this affidavit

sharply contradicted the earlier deposition testimony of Dr. Huelke, who as a witness for 

[Evers], explained at deposition that air bags are not designed to provide protection in a 

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side impact, and that there was no defect in the vehicle related to [Ever’s] injuries.” 770 

F.2d at 986.

Norinco correctly noted that the Eleventh Circuit observed that “conclusory 

allegations without specific supporting facts have no probative value” and held that 

General Motors was entitled to a summary judgment based on the conclusory nature of 

Thelin’s affidavit. Norinco ignored that the Eleventh Circuit’s observations that air bags 

were not designed to protect passengers in a side-impact collision and that Dr. Huelke 

detailed how no defect in the Grand Prix’s design related to Evers’s injuries. Norinco

ignored that the Eleventh Circuit merely found that Thelin’s affidavit testimony consisted 

of factually unsupported conclusions.

To this Court, Norinco argued:

... Each of Plaintiff’s claims is based on the 

allegations that the subject shotgun “fell apart and 

unexpectedly fired into and through” Plaintiff’s right hand. 

(Complaint ¶ 7.) Plaintiff’s deposition testimony, however, 

revealed that the allegation that the shotgun “fell apart” is 

based on nothing more than his own conjecture. (B. 

Bonner Dep., p. 88, lines 7-23; p. 89, lines 1-3; p. 110, lines 

14-16.) Indeed, the evidence shows that the shotgun was in 

one piece when it was retrieved after the accident. (C. 

Dennis Dep., p. 18, lines 2-11.) There is simply no 

evidence supporting a claim that the barrel became 

detached from the shotgun while Plaintiff was handling it. 

Plaintiff’s case, however, is entirely dependent on such 

evidence. It is the basis of his Complaint and it is the basis 

of his expert’s theory of causation.

Brief in Support of Defendant China North Industries Corporation’s Motion for Summary 

Judgment at 10-11.

The republished argument is predicated on plaintiff’s counsel’s incorrect factual 

allegation in the complaint that the subject Norinco shotgun “fell apart” just prior to 

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discharging. Brian Bonner concedes that the shotgun’s barrel did not completely fall off 

as he was holding the shotgun with the barrel pointed upward while B. J. Sadler walked 

to the nearby house to fetch an adult. Yet, Norinco cannot choose to ignore Brian 

Bonner’s pertinent deposition testimony. As detailed in the previous subsection of this 

memorandum brief, Brian Bonner affirmatively testified that, as he was holding the 

subject Norinco shotgun, he sensed that the barrel beginning to slide off, giving the 

impression that the barrel was going to fall off. (Deposition of Brian Joseph Bonner at 

73, 75 & 87-88) Brian Bonner’s affirmative deposition testimony “trumps” or overrides 

any factual allegations in the complaint. Brian Bonner’s causation theory is not 

predicated on the barrel becoming wholly “detached from the shotgun while [he] was 

handling it.” Instead, his causation theory is predicated on the barrel becoming detached 

or loose “while [he] was handling it.” The looseness caused Brian Bonner to think that

the barrel was about to fall off, causing him to react instinctively to try to keep the barrel 

from falling off. Unfortunately, his instinctive reaction resulted in his right hand 

grabbing the top of the barrel and his left hand accidentally coming in contact with the 

trigger.

Brian Bonner’s causation theory rests on the fact that the subject Norinco shotgun 

was defective or unreasonably dangerous because the weld or welds holding the barrel in 

place were either defectively welded or defectively designed. Brian Bonner retained 

Raymond Thompson as an expert witness. Plaintiff is separately filing with this Court an 

affidavit executed by Raymond Thompson in which he authenticates “Hodge Shotgun 

Report – 18800” as a report that he prepared following his inspection and testing of the 

subject Norinco shotgun and reaffirms the opinions contained in that report. Raymond 

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Thompson earned a Ph.D. in materials science and engineering from Vanderbilt

University in 1979; is a registered engineer in Alabama, Arkansas and South Carolina; 

and is a Fellow in both the American Society of Materials and the American Welding 

Society. Hodge Shotgun Report – 18800 at 6. As an academic and in his private 

professional practice, Dr. Thompson has actively engaged in matters of engineering 

design and failure analysis, including as an expert in lawsuits. Id. at 6-7. Dr. Thompson 

examined the subject Norinco shotgun and performed tests on the braze joint between the 

shotgun’s barrel and the ring attaching the barrel to the magazine tube. Id. at 1-4. He

observed that “[t]he braze was found to be heavily populated with flux that was not 

removed from the joint during the brazing process;” that “[m]ost of the braze surface is 

composed of braze metal that did not stick to the steel;” and that “[m]ost of the poorly 

adhered braze [is] on the barrel side which means not enough heat was used to make a 

strong brazed joint.” Id. at 3-4. These observations, as well as his other observation,

formed the basis on Dr. Thompson’s analysis that:

The brazed joint was poorly made and defective for that 

reason. The braze did not adhere to either the ring or the 

barrel. The lack of strength of this braze joint is the cause 

of the separation of the barrel from the magazine. The 

cause of this poor manufactured braze joint is most likely 

poor heating of the joint during brazing. The joint has 

entrapped flux which shows that not enough capillary force 

was developed to remove it during brazing. Poor fluxing 

would also contribute to the lack of adhesion between the 

braze and the steel.

...

The combination of large areas of trapped flux and no 

adhesion to the steel surfaces caused the defect in this joint

that caused it to break far below its intended strength.

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Id. at 4-5. Based on his professional experience coupled with his examination and testing 

of the subject Norinco shotgun, Dr. Thompson opined: “The gun examined for this 

report was defective in the brazed joint that connected the barrel to the magazine. The 

defective braze joint caused the separation of the barrel [from] the magazine.” Id. at 6

In other words, Dr. Thompson proffered admissible expert opinion testimony as 

to why Brian Bonner sensed looseness in the barrel, the weld or welds holding the barrel

in place began to fail. As important, Dr. Thompson proffered admissible expert opinion 

testimony linking the failure of the weld or welds to defects in the manufacture and/or 

design of the subject Norinco shotgun. The weld or welds, or braze joint as used by Dr. 

Thompson, were inadequate to properly hold the barrel in place. Adequate welds or 

braze joints would not have failed. From Dr. Thompson’s expert opinion testimony, the 

trier of fact may reasonably find that the subject Norinoc shotgun was either defectively 

manufactured or designed because, if the shotgun had been properly manufactured or 

designed, the welds or braze joints should not have failed as they did.

To this Court, Norinco argued:

Plaintiff’s expert on causation, John T. Butters (the 

same expert used by the plaintiffs in Burleson v. RSR 

Group Florida, Inc.) has opined that “the firearm 

discharged during [Plaintiff’s] attempt to prevent the barrel 

from falling off due to an inadvertent trigger pull 

occasioned by the barrel suddenly and unexpectedly 

breaking off the gun.” (Report of John T. Butters, p.2, lines 

27-29.) Mr. Butters bases his opinion on the notion that 

“the barrel was loose and slipping forward” and that 

Plaintiff “caught the barrel to prevent it falling off and 

pulled it back into the action whereupon the gun discharged 

and severely injured his hand.” (Report of John T. Butters, 

p. 1, lines 5-7.)

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Brief in Support of Defendant China North Industries Corporation’s Motion for Summary 

Judgment at 11.

Brian Bonner is uncertain as to why Norinco would inform this Court that John 

Butters was a plaintiff-retained expert in Burleson v. RSR Group Florida, Inc., ___ So. 2d 

___, 2007 WL 2745781 (Ala. Sep. 21, 2007). In Burleson, the Supreme Court of 

Alabama did not find John Butters’s opinions to be speculative or unsupported by the 

factual record. In Burleson, the Supreme Court of Alabama did not address whether, 

relying of John Butters’s opinion testimony, the personal representative failed to create a 

genuine question as to whether the subject pistol was defective or unreasonably 

dangerous. Instead, in Burleson, the sole issue was whether the deceased had been 

contributorily negligent as a matter of law. The finding of contributory negligence as a 

matter of law eliminated any need to consider whether the personal representative could 

prove that the pistol was defective. Nothing in Burleson discredits John Butters’s 

credentials or qualifications as a firearm’s expert.

Norinco submitted a copy of John Butters’s report as “Exhibt G” to its Defendant 

China North Industries Corporation’s Evidentiary Submission in Support of Its Motion 

for Summary Judgment. Like Dr. Thompson, after examining the barrel stud or the weld 

or braze joint, John Butters concluded that the stud or soldered joint “failed due to 

inadequate solder flow and adherence in the interface between the stud and the barrel.” 

Report of John T. Butters at 1. John Butters found no signs of abuse, misuse or 

modification that might explain a weakening or compromising of the integrity of the 

shotgun’s assembly. Id. In other words, the stud or soldered joint failed due to defect 

manufacture or design.

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As significant, based on Brian Bonner’s descriptive account, John Butters 

concluded that, when Brian Bonner noticed that the barrel was loose and slipping, Brian 

Bonner attempted to prevent the barrel from falling off. Id. at 2. Based on his 

professional experience, John Butters opined that the “metal” click heard by Brian 

Bonner was either the breakage of the faulty barrel stud solder joint or a loose stud and 

ring sliding on the magazine tube and that, as Brian Bonner attempted to prevent the 

barrel from falling off by grabbing the top of the barrel with his right hand, he 

inadvertently pulled the trigger with his left hand. Id. According to John Butters, Brian 

Bonner’s reaction to a loose or sliding barrel was foreseeable and not unexpected. Id.

The trier of fact may reasonably find that the defective manufacture or design of 

the subject Norinco shotgun was a contributing proximate cause of Brian Bonner’s 

injury. A misfire or jam is a foreseeable occurrence if the shotgun’s barrel becomes loose 

due a failure of a weld holding the barrel in place. A failure of a weld, braze joint or 

soldered stud joint should not occur if a shotgun is properly manufactured or designed. 

As he was holding the subject Norinco shotgun with the barrel pointed upward, Brian 

Bonner suddenly felt the barrel begin to slide and, instinctively, he moved his right hand 

to the top of the barrel to keep the barrel from falling off. There would have been no 

such reaction but for the failure of a weld, braze joint or soldered stud joint. 

Unfortunately, Brian Bonner inadvertently allowed his left hand to come in contact with 

the trigger. Again, there would have been no such inadvertent contact with the trigger 

but for the failure of a weld, braze joint or soldered stud joint.

Brian Bonner’s cause-in-fact theory is not predicated on speculation and is not 

inconsistent with the factual record viewed in the light most favorable to him. Norinco 

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concentrates on when the barrel completely fell off and ignores that the critical event was 

when the barrel became loose and started to slide off. By his instinctive reaction, Brian 

Bonner delayed when the barrel did fall off. Unfortunately, his natural instinctive 

reaction resulted in his right hand grasping the top of the barrel when the shotgun 

accidentally discharged. Again, there would have been no accidentally discharge but for 

the defect manufacture or design of the subject Norinco shotgun.

In summation, Brian Bonner proffered a causation theory that is consistent with 

his description of the accident and with tendered expert opinion testimony. Norinco is 

not entitled to a summary judgment based on its second asserted ground.

Conclusion

Norinco failed to demonstrate that Brian Bonner was contributorily negligent as a 

matter of law; alternatively, Brian Bonner proffered ample substantial evidence to create 

a genuine question of fact as to whether he was contributorily negligent at all. Brian 

Bonner met Norinco’s challenge to proffer sufficient evidence, including expert opinion 

evidence, to support his contention that the defective or unreasonably dangerous Norinco 

shotgun was a proximate cause of his injuries to his right hand. The subject Norinco

shotgun was defectively manufactured or designed so as to allow the barrel to come loose 

from the magazine tube. Brian Bonner’s instinctive reactions to sensing the barrel 

starting to slide off were both foreseeable and reasonable. But to the defectively 

manufactured or designed weld, brazing joint or soldered stud, this accident would never 

have occurred. Norinco is not entitled to a summary judgment based on either of its two 

asserted grounds.

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Respectfully submitted,

s/ David J. Hodge

Of Counsel for Plaintiff

Bar Number: ASB -4617-I71H

Pittman Dutton Kirby & Hellums, P.C.

2001 Park Place North

1100 Park Place Tower

Birmingham, Alabama 35203

(205) 322-8880

(205) 328-2711 facsimile

Email: PHDKH-efiling@pittmanhooks.com

CERTIFICATE OF SERVICE

I hereby certify that on 6

th day of March, 2008, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following: 

Todd M. Higey, Esq.

RICHARDSON CLEMENT, P.C.

200 Cahaba Park Circle, Suite 125

Birmingham, AL 35242

Attorney for Interstate Arms and Qiqihar Hawk

James C. Barton, Jr., Esq.

Alan D. Mathis, Esq.

JOHNSTON, BARTON, PROCTOR & POWELL, LLP

2900 Regions/Harbert Plaza

1901 6th Avenue North

Birmingham, AL 35203

Attorney for Norinco

s/ David J. Hodge

Of Counsel for Plaintiff

Case 3:06-cv-00715-MHT-TFM Document 82 Filed 03/06/2008 Page 23 of 23