A big game hunter mauled by a lion within seconds of shooting the charging animal has no claim against a bullet manufacturer for defective design or failure to warn, a federal judge in Minnesota ruled Nov. 18 (Rohwer v. Federal Cartridge Co., D. Minn., No. 03-CV-2872, 11/18/04).

Expert evidence the plaintiff presented regarding the behavior of wounded lions was "sheer conjecture," the court said. In addition, he failed to demonstrate either that the product was dangerous or that the defendant had superior knowledge of any danger that would give rise to a legal duty to warn.

Bullet Failed to Fell Charging Lion.

Rolf Rohwer, a big game hunter, led a Tanzanian lion-hunting safari in August 2000. During the safari, a participant shot a lion, wounding its paw. Recognizing the threat a wounded animal posed, and the inhumanity of allowing the animal to suffer with a non-lethal wound, Rohwer tracked the lion for three hours, intending to kill it.

Rohwer spotted the injured lion at a distance of approximately 60 meters in tall grass. Confronted by Rohwer, the lion charged along a winding path. Rohwer waited until the lion was approximately seven meters away before firing a single shot that he claimed hit the lion's left clavicle. The animal absorbed the impact and continued to charge, pouncing less than a second later and mauling Rohwer. The lion then walked away, lay down, and died of its wounds. Rohwer was airlifted to a hospital.

To shoot the lion, Rohwer chose a Federal Premium 500 grain Trophy Bonded Bear Claw bullet manufactured by Federal Cartridge. In nearly 40 years in his profession, Rohwer claimed to have killed more than 100 lions, including four charging at close range. He had never before used a Bear Claw bullet to shoot a lion.

Rohwer sued, alleging the bullet was defective because it was manufactured with a hard casing which, he claimed, does not expand when used on thin-skinned animals such as members of the cat family. The bullet used to shoot the lion was not recovered, and the animal's carcass was not preserved, although members of Rohwer's hunting party examined it and averred that the entrance and exit wounds appeared to be the same size.

Before this litigation, Federal Cartridge had not received any reports of a Bear Claw's failure to expand. In an effort to approximate a lion's skin, the company's expert conducted tests by firing bullets from the same batch as that used by Rohwer into a box of wet newspapers covered with saturated elk skin. The bullets in the test uniformly expanded as designed to, and the entrance and exit wounds were the same size. Federal Cartridge moved for summary judgment.

Expert Evidence was 'Sheer Conjecture.'

Viewing the facts of the case in the light most favorable to Rohwer, Chief Judge James M. Rosenbaum of the U.S. District Court for the District of Minnesota dismissed his claims for negligence, design defect, breach of warranty, and failure to warn. Under Minnesota law, these claims are merged under a single theory of strict product liability.

To prove his case, Rosenbaum explained, Rohwer had to establish a genuine issue of material fact as to whether the Bear Claw was in a defective condition unreasonably dangerous for its intended use, show that the defect existed when the product left Federal Cartridge's control, and show that the defect was the proximate cause of his injury. Assuming Rohwer could establish the second element of his claim, Rosenbaum said he nonetheless failed to establish any issue of fact on the rest of his prima facie case.

Because there was no direct evidence available, Rosenbaum said Rohwer could prove a product defect by circumstantial evidence, but only if the jury "would not need to engage in speculation." Rohwer attempted to prove the Bear Claw was defective through expert testimony concerning lion behavior and the location of the animal's wounds, but his evidence "misses the mark," Rosenbaum wrote.

In Minnesota, Rosenbaum explained, plaintiffs cannot establish a products liability case through res ispa loquitor, but must introduce "something more" than evidence that an accident occurred to prove defect and causation. Although the "something more" may be expert testimony, such testimony must have sufficient factual support, the judge said. "It is never enough that [the evidence] suggests a possibility. The evidence in proof must justify sound and honest inferences," Rosenbaum wrote, citing Peterson v. Crown Zellerbach Corp., (209 N.W.2d 922 (Minn. 1973)).

Here, Rosenbaum said Rohwer's proffered evidence was insufficient as a matter of law to create a triable issue as to whether the Bear Claw failed to expand: he presented no evidence of a history of the bullet failing to expand; the bullet expanded in all tests conducted by both plaintiff and defendant; and there was "an entire paucity of proof that a mushroomed Bear Claw bullet must cause a larger exit hole. As such, same-sized entry and exit wounds are fully consistent with proper expansion and will not allow a jury to infer defect."

Rohwer's expert evidence concerning the behavior of wounded lions, "…  particularly behavior after a paw shot when the animal is in full charge, is sheer conjecture," Rosenbaum wrote. The lion's behavior could be attributed to a bullet defect only if Rohwer presented precise evidence of the bullet's path in a manner that eliminated variables associated with shot placement.

Such evidence was absent here, since the only evidence of the bullet's path offered by plaintiff was completely contradictory--Rohwer claimed to have hit the lion on his left side, Rosenbaum explained, while witnesses claimed the bullet entered the lion's body on the right. "On this evidence, a jury can only speculate as to plaintiff's experts' theories on the subject of bullet expansion," Rosenbaum wrote. "Plaintiff cannot show either defect or causation."

Turning to Rohwer's argument on the failure to warn, Rosenbaum found Federal Cartridge had no legal duty to provide a warning. Rohwer failed to demonstrate either that the product was dangerous or that Federal Cartridge had superior knowledge or any danger, the judge wrote. Rohwer offered no studies, tests, field reports, or evidence of bullet-failure incidents other than his own. "His duty to warn argument," Rosenbaum explained, "devolves into a simple 'I say the Bear Claw bullet failed to expand. Therefore ipso facto I should have been warned that it would fail to do so.' "

Federal Cartridge had no duty to warn as a matter of law, Rosenbaum ruled, "and based on the evidence adduced by plaintiff, no reasonable jury could find defendant's bullet was defective or caused plaintiff's injuries. Accordingly, the complaint must be dismissed."