Cite as Bennett v. Glock, Inc., Case No. 2 CA-CV 96-0292 (Arizona Ct. App. June 18, 1998) IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DANIEL BENNETT and MARIANNE 2 CA-CV 96-0292 BENNETT, husband and wife; and MARIANNE BENNETT as next best DEPARTMENT A friend of ADAM BENNETT, SEAN BENNETT, BRIAN BENNETT, and MEMORANDUM DECISION SARAH KELLY BENNETT, the natural Not for Publication minor children of DANIEL BENNETT, Rule 28, Rules of Civil Appellate Procedure Plaintiffs/Appellants, v. GLOCK, INC., a Georgia corporation; SPORTS SOUTH, INC., a Louisiana corporation, Defendants/Appellees. APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. 293641 Honorable Robert Buchanan, Judge AFFIRMED IN PART; REVERSED AND REMANDED IN PART Harold Hyams & Associates, P.C. By Harold Hyams, James R. Farley and James L. Fullin Tucson Attorneys for Plaintiffs/Appellants Snell & Wilmer, L.L.P. By Timothy G. O'Neill and Martha E. Gibbs Phoenix Renzulli, Gainey & Rutherford By John F. Renzulli and Christopher Orlando New York Attorneys for Defendants/Appellees BRAMMER, Judge. Para. 1 Daniel Bennett, his wife and their minor children appeal from the judgment entered after a jury rendered a verdict against them on their strict liability claims against Glock, Inc. and Sports South, Inc. (collectively Glock) for damages resulting from firearm design and warning defects. [footnote 1] The Bennetts argue on appeal that the trial court: (1) abused its discretion in restricting the scope of discovery; (2) abused its discretion by precluding relevant evidence; (3) gave improper jury instructions; (4) erred in granting summary judgment on the negligent design claims; (5) erred in denying leave to add a punitive damages claim to the complaint; and (6) erred in refusing their request for findings of fact and conclusions of law on various pretrial rulings. We affirm in part and reverse and remand for a new trial in part. Facts and Procedural History Para. 2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the jury verdict. Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 907 P.2d 506 (App. 1995). The pistol at issue in this case is a .40 caliber semiautomatic Glock Model 23. Although the Model 23 pistol was not designed and manufactured until approximately 1990, it is one in a line of the Glock family of pistols dating back to 1980. The Glock family of pistols includes the Models 17, 19, 20, 21, 22, and 23. The Model 23 pistol and its relatives were designed by Gaston Glock. Although some differ in dimension and caliber, the entire Glock family of semiautomatic pistols has a basic design configuration consisting of a light plastic frame, the same type of recoil spring and no external safeties. Para. 3 Daniel Bennett purchased his Glock Model 23 pistol on October 7, 1991. On August 26, 1992, just before Daniel closed his pizza parlor for the evening, two masked and armed men entered the restaurant. As Daniel turned to see who had come in, one man shot Daniel in the chest. Daniel reached for his Glock pistol, which was holstered and inside a bag located on a desk next to him, pulled it out, and fired one shot at the intruders before his pistol jammed. While Daniel attempted to clear the jam, the second man shot him five more times. Daniel sustained multiple injuries to his jaw, neck, back, and chest, resulting in severe headaches, pain, loss of motor coordination and strength. He still has bullets lodged in his neck, jaw and back. Para. 4 The Bennetts initially brought an action against Glock and the ammunition manufacturer, Olin Corp. Upon learning that Glock's Austrian parent corporation, Glock Ges.m.b.H. (Ges.m.b.H.), actually designed and manufactured the pistol, the Bennetts requested and were granted leave to amend the complaint to join the parent corporation. The amended complaint alleged: (1) negligent design, manufacturing and warnings; (2) strict liability (design, manufacturing and warnings); (3) breach of warranty; (4) negligent infliction of emotional distress; and (5) res ipsa loquitur. Olin moved for dismissal, or in the alternative, summary judgment, alleging there was no evidence of proximate cause and insufficient evidence to establish liability under the doctrine of res ipsa loquitur. The court granted Olin's motion and dismissed it from the action. The Bennetts do not appeal this ruling. The trial court also granted Ges.m.b.H.'s motion to dismiss in which it argued the action against it was time barred and there was insufficient evidence as to the res ipsa loquitur claim. Para. 5 Glock moved for summary judgment on all claims in September 1995. After lengthy discovery and numerous motions, the trial court granted summary judgment for Glock on all but the claims of strict liability as to design and warnings and the negligent warning claim. Before the case went to the jury, the Bennetts voluntarily dismissed the negligent warning claim, leaving only the strict liability claims. Jury Instruction on Misuse Para. 6 The trial court gave Glock's requested jury instruction on misuse based on the fact that its instruction manual specifically provided: CAUTION: The higher level of preparedness required of law enforcement and military personnel may override several of the following safety instructions. To provide safety while operating at a higher level of preparedness, proper initial combat oriented training and a reasonable amount of periodic training, which stresses safe tactical procedures, is recommended. The Bennetts argue the evidence did not show Daniel had misused the weapon; he used it to fire ammunition, a use that is expected by manufacturers. They also argue that the warnings in Glock's instruction manual which recommended additional training prior to using the pistol were aimed solely at law enforcement and military personnel, not the general consumer. The Bennetts further maintain that Daniel's failure to obtain any specific training on the Glock's use does not constitute misuse or was, at most, contributory negligence. Para. 7 "[J]ury instructions are read as a whole with an eye toward determining whether the jury was given the proper rules of law to apply in arriving at its decision." Thompson v. Better-Bilt Aluminum Products Co., Inc., 187 Ariz. 121, 126, 927 P.2d 781, 786 (App. 1996). "If an instruction is misleading to the jury and prejudices the appellant's rights, the giving of that instruction constitutes reversible error." Id. There must be substantial doubt as to whether the jury was properly guided in its deliberation before we will overturn a jury verdict. Id. We must view the evidence in a manner supporting the theory of the party requesting the instruction. Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 733 P.2d 652 (App. 1986). Para. 8 Although contributory negligence is not a defense to a product liability action, misuse may, depending on the jury's apportionment of fault, either totally bar recovery or reduce plaintiff's damages. Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 904 P.2d 861 (1995). Misuse may be used as an affirmative defense if the facts demonstrate that the plaintiffs use of the product is "'for certain purposes or in a manner not reasonably foreseen by the manufacturer,'" Id. at 402, 904 P.2d at 864, quoting O. S. Stapley Co. v. Miller, 103 Ariz. 556, 561, 447 P.2d 248, 253 (1968), "or was contrary to any express and adequate instructions or warnings appearing on or attached to the product or on its original container or wrapping, if the injured person knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings." A.R.S. section 12-683(3). See also Gosewich v. American Honda Motor Co., Inc., 153 Ariz. 400, 737 P.2d 376 (1987). Para. 9 Glock argues that because the instruction manual directed consumers to seek additional training, Daniel's failure to do so constituted misuse. We disagree. The statutory phrase, "if the injured person knew or ... should have known of such instructions or warnings," should be viewed "as a modifier describing, at least in part, the quality of instructions or warnings necessary to bar recovery." Id. at 407, 737 P.2d at 383. In other words, the question is whether either the warnings or instructions were "reasonably calculated to reach the plaintiff. " Id. We do not find this instruction to obtain training, placed within a discussion concerning law enforcement and military users, was adequate to apprise Daniel of an obligation to obtain specific training on the use of the Glock. This is so notwithstanding the testimony of Glock's expert that the manual's "higher level of preparedness" language, suggesting that additional training be obtained, included a self-defense situation, "the same situation [Daniel] was in." Moreover, the record reveals that even if Daniel had obtained such specific training, the courses offered to the average consumer at the time of purchase would not have instructed users as to the Glock pistol's potential for jamming associated with the way in which the user gripped the pistol when firing it. Therefore, based on the absence of evidence to support a misuse defense, and the fact that the jury could have easily returned its general defense verdict in favor of Glock based on such an instruction, we find it was reversible error to have given a misuse instruction. See Continental Life & Accident Co. v. Songer, 124 Ariz. 294, 603 P.2d 921 (App. 1979). Discovery and Disclosure A. Fact witnesses Para. 10 The Bennetts filed several motions to compel discovery, including the depositions of several witnesses who had experienced jamming problems while firing Glock pistols. Glock opposed the requested depositions on the ground that the proposed testimony was irrelevant and did not involve substantially similar circumstances. On appeal the Bennetts challenge the trial court's refusal to permit the requested depositions. Para. 11 The trial court exercises broad discretion in ruling on discovery and disclosure issues, and we will not disturb its rulings absent an abuse of discretion. Perguson v. Tamis, 188 Ariz. 425, 937 P.2d 347 (App. 1996). The trial court abuses that discretion if the record fails to establish substantial evidence to support the ruling or if the court commits an error of law in reaching its conclusions. Id. We review the interpretation of the meaning and effect of a court rule de novo. Id. Para. 12 Discovery may be obtained regarding any matter not privileged which is relevant to the subject matter involved, notwithstanding that the information sought will be inadmissible at trial, as long as it appears such information is reasonably calculated to lead to the discovery of admissible evidence. Ariz. R. Civ. P. 26(b)(1), 16 A.R.S. "The rules of discovery should be broadly and liberally construed to facilitate identifying the issues, promote justice, provide for a more efficient and speedy disposition of cases, ... [and] determine whether a valid case or defense in fact exists." U-Torem Store v. Walker, 142 Ariz. 549, 552-53, 691 P.2d 315, 318-19 (App. 1984). Para. 13 Depositions of fact witnesses are governed by Rule 30(a), Ariz. R. Civ. P., which provides that depositions of persons other than parties or expert witnesses must be agreed upon by all parties or permitted by court order following a motion demonstrating good cause or by court order following a pretrial conference. Whether there is good cause "depends upon the 'particular circumstances of each case' and 'considerations of practical convenience.'" Bryan v. Riddel, 178 Ariz. 472, 477, 875 P.2d 131, 136 (1994), quoting State Farm Ins. Co. v. Roberts, 97 Ariz. 169, 174, 398 P.2d 671, 674 (1965). Para. 14 The Bennetts argue that Glock agreed certain depositions could be taken, as evidenced by a letter it wrote to the Bennetts, and that it is bound to that agreement pursuant to Rule 80(d), Ariz. R. Civ. P. We disagree. Rule 80(d) may only be relied upon if the alleged discovery agreement between the parties has been recorded in the minutes. See Rule 80(d). There is no such agreement in the record before us. We therefore turn to the question whether the trial court abused its discretion in refusing to compel the depositions of certain individuals whose circumstances Glock claimed were not substantially similar. Para. 15 The phrase, "substantially similar," does not mean "identical." Assuming substantial similarity is a prerequisite to discovery, it was not necessary that the persons whose depositions were sought had fired the same model gun in an emergency situation in order for the person's incident to be considered "substantially similar." With respect to the requested deposition of Seecamp, although his pistol is different from the Glock Model 23, there may be substantial similarities in their design and operation. Moreover, if Glock's state-of-the-art defense suggests that its owner's manual need not contain warnings respecting jamming when firing in certain circumstances, but Seecamp's instruction manual does contain such warnings, his testimony may lead to potentially admissible state-of-the-art information. It appears the trial court denied the discovery request based on an overly restrictive interpretation of the phrase "substantially similar." We find it abused its discretion in totally denying all discovery relating to similar incident evidence. See Perguson. The trial court, of course, may place reasonable restrictions on the quantity, scope and manner of permissible discovery relating to that topic. Ariz. R. Civ. P. 26(b). Para. 16 We note that Glock also raises the issue of admissibility of other incident evidence. Whether it was error for the court to have precluded such evidence cannot be determined unless and until such evidence is at hand. We therefore decline to address the admissibility issues and leave that to the discretion of the trial court when and if appropriate. B. The gun frame discovery Para. 17 Although absent from the record before us, the Bennetts apparently filed at least two requests for production of documents before filing their first motion to compel in January 1995. According to the motions filed, these requests asked for "[d]rawings, plans, schematics, photographs or other similar representations pertaining to any design change(s) or modification(s) made to the Glock Model 23 pistol or any of its component parts over the past ten (10) years. In its response Glock claimed that the Bennetts' request was overbroad, too general because no specific defect had been alleged, and that it did not have any of these documents because its parent corporation, not it, designed and manufactured the pistol. The trial court ordered Glock to "provide plaintiff with a list of all design and/or manufacturing changes to the top of the Glock gun, the breech area and the magazine." In July 1995, Glock provided the Bennetts with a list of changes made to the pistol, ostensibly in response to the court's ruling, but neither explained the information disclosed, nor provided documentation or other items which detailed or supported the changes. Para. 18 In August 1995, the Bennetts filed a second motion to compel, stating that the list provided by Glock in July was "inadequate," requesting "any and all documentation including drawings, dimensional data and memorandum [sic] regarding the changes listed in the Supplemental Disclosure along with the information which was previously ordered." The trial court denied the motion, finding that the information sought "was outside the scope" of previously ordered discovery and "overbroad." Shortly thereafter, Glock provided the Bennetts with supplemental disclosure summarizing various changes to the pistol and the reasons they were made, and some engineering drawings. Para. 19 The Bennetts filed a third motion to compel in January 1996, requesting specific drawings and memorandum/change orders of the "follower," "port references," "floor" and "locking plates," and technical bulletins regarding the ports and floor and locking plates, as described by Glock in its supplemental disclosure. Glock responded that no such "orders" exist, the drawings for the ports are the same as the follower, and the request for the plates was irrelevant because the plates have no effect on the pistol's feeding mechanism. After the trial court denied their motion, the Bennetts filed a motion for reconsideration of not only that denial but all prior similar rulings, and requested all documents pertaining to any changes made to the Model 23 pistol within the last ten years, specifically including the following six items: (1) design or drawings of the recoil spring, (2) the ejector, (3) the plastic frame, (4) the grip, (5) the size of metal rails in the plastic frame, and (6) the position the cartridges are held in the magazine. Glock responded that it had complied with the trial court's previous orders, and denied that it had failed to disclose as required by the trial court. The trial court denied the motion for reconsideration. Para. 20 The Bennetts maintain that the trial court erred in restricting the scope of discovery to the breech and the top of the gun instead of the frame. Glock argues that it identified all design changes in the Model 23 pistol, together with the reasons for the changes, but because the Bennetts were unable to identify any design features causally related to the jams, the trial court properly refused broader discovery. Para. 21 Although the Bennetts were entitled to obtain relevant information through discovery, their requests had to be narrow and focused; they were not entitled to conduct a fishing expedition. See Blazek v. Superior Court, 177 Ariz. 535, 869 P.2d 509 (App. 1994). We cannot say the trial court abused its discretion in denying the motion for reconsideration as to the Bennetts' request for any and all "[d]rawings, plans, schematics, photographs or other similar representations pertaining to any design change(s) or modification(s) made to the Glock Model 23 pistol or any of its component parts over the past ten (10) years." The request was neither narrow nor focused, and placed an undue burden on Glock. With the exception of the above request, however, the record reflects that the Bennetts' motion for reconsideration contained six requests that were, indeed, narrow, focused, definite, and specific. The Bennetts sought discovery regarding approximately six areas of the pistol's frame. Although the Bennetts had not yet specifically alleged the technical reason the pistol jammed, the record suggests they were focusing on the frame of the gun with respect to its jamming when fired with a one-handed, limp wrist/low grip. Glock has not cited any authority, nor have we discovered any, for the proposition that the Bennetts were required to allege a specific defect before it could conduct discovery on a specific issue. Because neither the record nor the trial court's minute entry provides a substantial reason for denying these six specific requests, we find that the trial court abused its discretion in refusing to compel Glock to respond to them. See Perguson. Summary Judgment on Negligent Design Claims Para. 22 We view the facts, and all reasonable inferences therefrom, in the light most favorable to the party appealing summary judgment. Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 927 P.2d 796 (App. 1996). Glock's motion for summary judgment on the negligent design claims was based on its contention that the Bennetts failed to allege or prove the pistol was defective, thereby failing to raise a genuine issue of material fact. It further argued that the Bennetts failed to present any facts from which a jury could conclude that the jamming proximately caused Daniel's injuries. The trial court granted Glock's motion. Para. 23 The Bennetts argue that there was an issue of fact as to whether the heavy/light slide frame of the Glock 23 was negligently designed based on evidence that this design was conducive to the pistol jamming when fired one-handed with a limp wrist or low grip. The Bennetts argue that Glock had prior knowledge of similar jamming incidents involving several Glock models, including the Model 23 pistol, and that the company advertised its product's "perfection" as a self-defense aid with full knowledge of the pistol's potential for jamming. We fail to see how these last two arguments support the assertion that the Glock pistol was negligently designed and therefore only consider the Bennetts' first argument. Para. 24 Summary judgment is proper if the facts supporting the claim or defense have so little probative value, given the quantum of evidence required, that a reasonable jury could not agree with the conclusion advanced by the proponent. Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). The standard of review for a grant of summary judgment is de novo. Dole Food Co., Inc. v. North Carolina Foam Indus., Inc., 188 Ariz. 298, 935 P.2d 876 (App. 1996). Para. 25 Glock first argues that, on appeal, the Bennetts failed to specify which issues of fact were material and contested so as to preclude summary judgment. We disagree. In their opening brief, the Bennetts argue that because of the "heavy/light slide frame design," the Glock pistols tend to jam. Glock's second argument, that summary judgment should be affirmed because it was neither the designer nor manufacturer of the pistol also fails. Glock never argued this to the trial court and it has therefore waived this issue on appeal. See Guarriello v. Sunstate Equip. Corp., Inc., 187 Ariz. 596, 931 P.2d 1106 (App. 1996). Para. 26 A product is negligently designed if, in light of the knowledge regarding the product available at the time of manufacture, it would have been unreasonable for the manufacturer to have designed the product as it did. Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 709 P.2d 876 (1985); Rossell v. Volkswagen of America, 147 Ariz. 160, 709 P.2d 517 (1985). Para. 27 Our supreme court has approved of a risk/benefit analysis in determining whether a manufacturer negligently designed a product. Dart. The factors to be utilized in this analysis are: (1) the usefulness and desirability of the product; (2) the availability of other and safer products to meet the same need; (3) the likelihood of injury and its probable seriousness; (4) the obviousness of the danger; (5) common knowledge and normal public expectation of the danger; (6) the avoidability of injury by care in use of the product; and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive. Id. "Thus, if better testing or design [was] available [at the time of manufacture] " that "would have eliminated the unreasonable danger," the manufacturer would be required to have known and used that method as a matter of due care. Brady v. Melody Homes Mfr., 121 Ariz. 253, 589 P.2d 896 (App. 1978), overruled in part on other grounds, Dart. Para. 28 Although the record is replete with various articles and affidavits about instances in which Glock pistols have jammed, that does not compel the conclusion that the Glock model 23 was negligently designed. We focus our inquiry on whether there was a question of fact as to the availability of safer alternative designs and/or better testing that would have eliminated the jamming problem. Dart. Para. 29 The light plastic frame of the Model 23 pistol is an exclusive trademark of the Glock family of pistols and, although it may be conducive or contribute to jamming, designing it to be light and made of plastic is not negligent unless it can be shown that at the time of design there was a similarly light-framed pistol, differently designed and/or tested, that did not jam. See Dart; Rossell. No evidence was presented of either a safer design or better testing to which Glock might have subscribed at the time of manufacture as required by Dart. There was no evidence that the Model 23 design was unreasonable. Finally, there was no evidence of "the availability of other and safer products to meet the same need. " Dart, 147 Ariz. at 245, 709 P.2d at 879. Therefore, the trial court did not err in granting Glock's motion for summary judgment. Underpowered Ammunition Para. 30 Olin, the ammunition manufacturer, was removed from the action on summary judgment. The Bennetts argue that, because the trial court found as a matter of law that the ammunition was not defective, it was improper for Glock to argue that a cause of the jam could have been underpowered ammunition. They assert the doctrines of estoppel, res judicata, and "law of the case" as support for this argument. Para. 31 Although this issue may arise again on retrial, we cannot predict under what circumstances it might. We leave to the trial court's discretion on retrial any other determinations regarding admissibility of evidence concerning the "power" of ammunition, and simply find that the court and parties are bound only by our finding that by dismissing Olin, there has been an adjudication that the ammunition Daniel fired and had in his pistol was not defective. Para. 32 The Bennetts have raised numerous other issues for our review including the trial court's alleged errors respecting other evidentiary rulings, other instructions, refusing to permit addition of a punitive damage claim, and refusing to make findings of fact and conclusions of law on various pretrial rulings for our review. Because these issues may or may not arise on retrial, we decline to address them at this time. Lopez v. Farmers Ins. Co. of Arizona, 177 Ariz. 371, 868 P.2d 954 (App. 1993). Para. 33 We affirm the summary judgment for Glock on the negligent design claim and reverse and remand for a new trial on the remaining issues consistent with this decision. WILLIAM BRAMMER, JR., CONCURRING: JOHN PELANDER, Judge JOSEPH W. HOWARD, Judge FOOTNOTES 1. The Bennetts also complain of the dismissal with prejudice and the granting of summary judgment on the negligent design claim in favor of Jensen Family Enterprises, L.L.C. Because no order has been entered in accordance with A.R.S. section 12-2101(B) and Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., we are without jurisdiction to consider these arguments.