David Hakim v. Safariland, LLC

In the

United States Court of Appeals

For the Seventh Circuit

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No. 22-1861 DAVID HAKIM,

Plaintiff-Appellee, v.

SAFARILAND, LLC and DEFENSE TECHNOLOGY CORPORATION OF AMERICA,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-6487 — Thomas M. Durkin, Judge.

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ARGUED OCTOBER 25, 2022 — DECIDED AUGUST 21, 2023

____________________ Before SYKES, Chief Judge, and FLAUM and LEE, Circuit Judges.

LEE, Circuit Judge. In 2014, David Hakim, a SWAT officer for the DuPage County Sheriff’s Office (“DCSO”), acci- dentally got shot by a colleague during a training exercise. The offending projectile was a “breaching” shotgun round manufactured by Safariland, LLC. 1 Breaching rounds assist law enforcement officers in breaking down doors by disabling hinges and other attachments on doorframes. When used as intended, they disintegrate harmlessly on impact with a metal attachment mechanism. But here, Hakim’s fellow officer missed the metal door hinge he was shooting at. The round struck wood, remained live, and ultimately hit Hakim in the spine. Hakim’s thirteen-month recovery from his injury re- quired multiple surgeries, and to this day he experiences pain so severe that he has trouble sleeping.

Hakim initiated this diversity action against Safariland under Illinois’s law of strict products liability. Hakim claimed that the Safariland round was defective in its manufacture and design, and that Safariland had failed to provide ade- quate warning that its rounds do not disintegrate if they strike wood instead of metal. A jury found for Safariland on the manufacturing- and design-defect claims, but it awarded Ha- kim $7.5 million on his failure-to-warn claim. Safariland filed several motions during and after the trial, challenging the suf- ficiency and weight of Hakim’s evidence as well as the size of the award. The district court denied all of Safariland’s mo- tions. Safariland now appeals, and we affirm in all respects.

I. BACKGROUND

A. Safariland’s Breaching Rounds and Product Warnings

Safariland’s breaching rounds are 12-gauge shotgun rounds made of compressed zinc powder. When an officer who needs to enter a room is faced with a locked door, the officer fires the round at the metal hardware that attaches the door to the door frame. When a fired round comes in contact with the metal attachment, the round disintegrates, and the force of the blast destroys or disables the attachment. This al- lows the officer to enter the room safely without harming an- yone who may be inside, including any hostages.

When fired correctly, the rounds are safe. But an errantly deployed round can be deadly. For instance, if a fired round impacts wood (rather than metal), it does not disintegrate and may pierce the wood and remain live, risking harm to anyone in its path. The question we face is whether Safariland ade- quately apprised its consumers of this risk.

Safariland has issued various product descriptions and warnings describing how to operate the breaching rounds and the risks associated with their use. But none of these ma- terials inform consumers, in so many words, that the rounds do not disintegrate when they hit wood. In fact, the materials sometimes imply that the opposite is true. For instance, the product literature states that the rounds disintegrate on con- tact with a “hard surface.” And Safariland’s product catalog lists the breaching rounds on a page labeled “less lethal,” and it states that the rounds “[d]isintegrate[] on contact” and are “[s]afe to use at close distances.” Indeed, during the trial, one of Safariland’s expert witnesses admitted that he had never seen Safariland product literature stating that the rounds must hit metal to disintegrate.

On the other hand, the product literature does tell users how to deploy the rounds safely. It recommends the “45/45” method of deployment, whereby a round is shot into a door 45 degrees out from the door, and at a 45-degree downward or upward trajectory. The literature also states that rounds should be fired directly at a metal door attachment, rather than at the area between the attachment and the door. The lat- ter technique is known as “shearing.” The literature indicates that a proper firing technique will “minimize the risk of the projectile causing serious injury or death.”

B. The DCSO Training Exercise

DCSO purchased some breaching rounds from Safariland; there is no evidence that any DCSO SWAT officers, including Hakim, ever received or read any of Safariland’s product lit- erature. The SWAT team used the rounds during a shotgun breaching training exercise conducted at a vacant house in Hinsdale, Illinois on December 11, 2014.

Shotgun breaching training normally takes a full day, but it was rare for the SWAT team to have a vacant house to train in. So, the team heard a thirty-to-sixty-minute presentation and proceeded directly to live firing exercises.

The trainees, including Hakim, split into small groups and randomly selected three doors in the house as breaching sta- tions. Two stations were in the basement and one was on the main floor. There was no coordination or communication be- tween the teams, and there were more teams (three) than cer- tified shotgun breaching instructors (two).

Officer Andrew Alaniz was at one of the basement sta- tions. He was a crack shot with a rifle and a pistol, but he had no experience in using a breaching round. An instructor told Alaniz to try to shear the hinge off the door (contrary to Safa- riland’s instructions). Alaniz did so, but he missed the hinge multiple times. His third shot went through the basement’s ceiling. Unfortunately, Hakim was standing on the main floor of the house in Alaniz’s line of fire.

C. Hakim’s Injury and Recovery

The round Alaniz had fired deflected off Hakim’s body ar- mor and hit his lumbar spine. He was rushed to the hospital. The district court recounts the immediate aftermath:

Spinal surgery was necessary to remove the fragments of the round, and the surgeon was only able to remove most of them. Hakim testi- fied the projectile had torn through the dura, which contains the spinal cord and fluid. Be- cause the wound was so large, it could not be stitched, and was instead patched. Because of the patch, Hakim had to lay motionless on his back in the hospital for 48 hours. After he was discharged, his wound became infected and he had to be debrided. 2

Hakim v. Safariland, LLC, No. 15 C 06487, 2022 WL 1136552, at *6 (N.D. Ill. Apr. 18, 2022).

Hakim’s suffering did not end there. During his recovery, he was unable to take the necessary amount of pain medica- tion because he was born with only one kidney. Id. The inci- dent left Hakim with various ailments, including headaches, chronic pain in his lower back, and radicular symptoms and pain in his lower extremities. To this day, Hakim suffers from daily pain so severe that he can only sleep four to five hours per night.

These conditions have impacted Hakim’s personal and professional life considerably. Although he can walk without an assistive device, he has had to cut back on chores to pre- serve his strength, and he suffers from a reduced range of mo- tion. Hakim did not return to full-time duty until thirteen months after he was shot. As a SWAT officer, a member of a task force for the United States Marshals Service, and the owner of a martial arts academy, Hakim is required to remain in relatively good physical form. Yet the shooting rendered him unable to pass the SWAT team’s running agility test, and he does not believe that he will be able to continue serving on the SWAT team or task force for “more than a few years.” While on surveillance assignments, Hakim has to get out of his car every thirty minutes to prevent stiffness.

D. The Proceedings Below

Hakim brought this diversity action against Safariland un- der Illinois’s law of products liability, alleging that the breach- ing rounds were defective in their manufacture and design and that Safariland had failed to give adequate warning that the rounds do not disintegrate on contact with wood. Hakim, 2022 WL 1136552, at *2. At trial, Hakim offered Safariland’s product literature and testimony from his SWAT colleagues, some of whom indicated that they were unaware that the rounds had to hit metal to disintegrate. Id. at *4. Two doctors also testified about the nature and extent of Hakim’s injuries. Safariland countered with expert testimony from Kenneth Hubbs, a master shotgun breaching instructor, and Weinong Chen, a materials expert, who testified that the rounds operated as intended and described the proper method of de- ployment of a breaching round.

Prior to the submission of the case to the jury, Safariland moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The court deferred ruling on the motion pending the jury’s verdict. Id. at *2. The jury eventually re- turned a verdict of $7.5 million for Hakim on the failure-to- warn claim, but it found for Safariland on the manufacturing- and design-defect claims. Id. Safariland then renewed its mo- tion for judgment as a matter of law under Rule 50(b) and added a motion for a new trial under Rule 59; it also sought remittitur of the $7.5 million award. Id. The district court de- nied all of the motions and entered judgment for Hakim. Id. at *7.

II. DISCUSSION

We first address Safariland’s contentions that the district court erred in failing to grant it judgment as a matter of law or a new trial. We then discuss the district court’s refusal to order remittitur of the jury’s $7.5 million award. Ultimately, we conclude that the jury’s verdict and award should stand in their entirety.

A. Safariland’s Motions for Judgment as a Matter of Law and a New Trial

1. Legal Standard A motion for judgment as a matter of law should be granted under Rule 50 when “a party has been fully heard on an issue … and … a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). The court must not “make credibility determinations or weigh the evidence,” and it must view the evidence and “draw all reasonable inferences in favor” of the nonmoving party (here, Hakim). Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). We review the district court’s denial of Safariland’s Rule 50 motions de novo. 3M v. Pribyl, 259 F.3d 587, 595 (7th Cir. 2001).

A new trial may be granted pursuant to Rule 59 “if the verdict is against the clear weight of the evidence.” Whitehead v. Bond, 680 F.3d 919, 927 (7th Cir. 2012) (cleaned up). While a court adjudicating a motion for a new trial may gauge the weight of the evidence and assess witness credibility, a jury verdict should only be overturned if “no rational jury” could have rendered it. Id. at 928 (cleaned up). A district court’s de- nial of a motion for a new trial is reviewed for abuse of dis- cretion. Id. at 927.

2. Products Liability in Illinois We apply Illinois’s substantive law in this diversity case. Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996). Be- fore turning to Safariland’s arguments, then, an overview of products liability law in Illinois is helpful.

Under Illinois law, a defendant may be held strictly liable in tort for manufacturing, and placing into the stream of com- merce, a product “whose defective condition ma[kes] it un- reasonably dangerous to the user or consumer.” Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 334 (Ill. 2008). To prove a claim of strict products liability, a plaintiff must establish that he suffered (1) an injury (2) proximately caused by (3) a “con- dition of the product” that (4) “made the product unreasona- bly dangerous” and that (5) “existed at the time the product left the defendant’s control.” Id. at 345. There are three types of conditions that may render a product unreasonably dangerous: a defect in manufacturing, a defect in design, or “a failure of the manufacturer to warn of the danger or to in- struct on the proper use of the product.” Id. at 335. We are concerned here with the third type of defect: failure to warn of a product’s dangerous properties.

A failure-to-warn claim will lie if a product “has a latent defect or a dangerous propensity of which a user would nor- mally be unaware,” and the defendant does not provide ade- quate warning of the defect or dangerous propensity. Baltus v. Weaver Div. of Kidde & Co., 557 N.E.2d 580, 588 (Ill. App. Ct. 1990). 3 A product warning may be inadequate if, for example, it does not “specify the risk presented by the product,” it is “inconsistent with how the product would be used,” it fails to “provide the reason for the warning,” or it fails to “reach fore- seeable users.” Palmer v. Avco Distrib. Corp., 412 N.E.2d 959, 964 (Ill. 1980). The adequacy of a warning is a question of fact typically directed to the jury; of course, the mere fact that warnings were given “is not conclusive [evidence] that the warnings were adequate.” Collins v. Sunnyside Corp., 496 N.E.2d 1155, 1158 (Ill. App. Ct. 1986).

3. Necessity of Expert Testimony In its motions for judgment as a matter of law, Safariland argued that Hakim’s failure-to-warn claim failed because Ha- kim did not offer any expert testimony to support it. 4

Many products liability cases involve complicated, tech- nical questions about a product’s design or operation. Lay ju- rors in such cases may have difficulty in determining whether a product has been rendered unreasonably dangerous by an alleged defect. Illinois courts therefore have determined that expert testimony is required to support complex products li- ability claims in some cases. Niehaus v. United Seating & Mo- bility, Inc., No. 10-160-GPM, 2011 WL 5325652, at *2 (S.D. Ill. Nov. 3, 2011) (“[G]enerally in product liability and negligence cases involving specialized products and ‘specialized knowledge’ expert testimony is required.”) (citing Baltus, 557 N.E.2d at 588–89). 5 Whether expert testimony is necessary is determined by examining the “specific facts and issues in- volved” in the case. See Baltus, 557 N.E.2d at 588–89. So, in

Safariland argues that Hakim needed expert testimony here, because the breaching rounds are specialty products be- yond the understanding of a typical lay juror. Safariland em- phasizes that the rounds are complex in design and are used by trained law enforcement personnel rather than the general public. It also notes that the rounds have to be fired in the cor- rect way to be effective, and that an ordinary juror would not be aware of the proper deployment method.

But none of these facts are particularly relevant to Hakim’s failure-to-warn claim. The fact that the rounds might be com- plex in some respects does not mean that expert testimony is required for every products liability claim involving the rounds. For instance, if Hakim’s claim was that the rounds were designed defectively, testimony from a ballistics expert or design engineer would probably be necessary. Show, 659 F.3d at 587 (“[D]esign options are the province of engi- neers[.]”). But the jury found for Safariland on Hakim’s de- sign-defect claim, and Hakim does not appeal that verdict.

On the other hand, Hakim’s failure-to-warn claim pre- sents different factual issues, and the question it raises is ra- ther straightforward: Did Safariland’s product literature ade- quately apprise consumers of the risk that the breaching rounds can remain live after striking wood? Answering this question does not require the application of any specialized, technical knowledge; all the jury had to do was examine the warnings and assess whether they were adequate.

Thus, the cases Safariland cites requiring expert testimony for design-defect claims involving complex products are in- apposite. Show, 659 F.3d at 587–88 (automobile); Henry v. Panasonic Factory Automation Co., 917 N.E.2d 1086, 1092–93 (Ill. App. Ct. 2009) (industrial machinery); Cappellano v. Wright Med. Grp., Inc., 838 F. Supp. 2d 816, 830–31 (C.D. Ill. 2012) (hip prosthesis). An average juror likely does not possess the spe- cialized knowledge to determine whether a car or medical de- vice was designed defectively, for example. But where warn- ings, rather than design choices, are at issue, a jury need only determine whether there was a known risk and whether it was sufficiently disclosed. For this reason, numerous courts in this circuit applying Illinois law have not required expert testimony in the context of a failure-to-warn claim. See, e.g., Africano v. Atrium Med. Corp., No. 17-cv-7238, 2021 WL 2375994, at *6–12 (N.D. Ill. June 10, 2021) (holding plaintiff did not need expert testimony to support claim that defendant failed to warn that surgical mesh may not have been sterile, while suggesting expert testimony might have been required on manufacturing- and design-defect claims); Lott v. ITW Food Equip. Grp. LLC, No. 10 CV 1686, 2013 WL 3728581, at *1–2, *25, *28 (N.D. Ill. July 15, 2013) (holding expert testimony was not required to support failure-to-warn claim involving food- waste-disposal machine, while indicating such testimony was required to support the plaintiff’s design-defect claim).

Admittedly, not all failure-to-warn claims are so straight- forward. Some product warnings are communicated exclu- sively to trained specialists, who possess esoteric knowledge beyond the experience of the average juror. In such cases, ex- pert testimony may be necessary for a jury to determine how a reasonable specialist in the relevant field would interpret the warning. Take, for example, cases involving drugs and medical devices, where a lay juror untrained in medicine would be unable to comprehend the meaning of the warnings themselves. See, e.g., Sosnowski v. Wright Med. Tech., Inc., No. 11 C 59, 2012 WL 1030485, at *7 (N.D. Ill. Mar. 27, 2012) (hold- ing expert testimony was required on failure-to-warn claim involving hip prosthesis); N. Tr. Co. v. Upjohn Co., 572 N.E.2d 1030, 1038–39 (Ill. App. Ct. 1991) (holding expert testimony was required in determining whether warning label on med- ication adequately disclosed risk of cardiac arrest).

Safariland urges us to adopt a similar rule here, arguing that the law enforcement officers to whom the breaching rounds are marketed are “specialists.” But it is not the charac- teristics of the audience to whom the warning is directed that is dispositive, but whether a lay juror would understand the nature of the relevant risk and the substance of the warning at issue absent expert testimony. See Upjohn, 572 N.E.2d at 1036 (indicating that expert testimony is not required where a jury can “reach an intelligent conclusion about the adequacy of the warning without the aid of an expert’s specialized knowledge”). Here, the risk is that the breaching rounds, when they strike wood, do not disintegrate; this is well within the comprehension of a layperson. Indeed, as Hakim points out, there is no evidence that law enforcement personnel are any more familiar with the physical or kinetic properties of breaching rounds than an average consumer. 6 In sum,

4. Adequacy of Safariland’s Warnings Next, Safariland argues that the district court should have granted it judgment as a matter of law because its warnings were adequate. Alternatively, it contends that the jury’s deci- sion that its warnings were inadequate was against the weight of the evidence and, therefore, that a new trial was war- ranted. 7

Safariland acknowledges that none of its product litera- ture specifically warns that breaching rounds that hit wood do not disintegrate. But it argues that this danger was implied in its literature. For instance, Safariland notes that the docu- ments advise shooting the rounds directly at metal attach- ment mechanisms, rather than attempting to “shear” those mechanisms off a door, to “minimize the risk of the projec- tile[s] causing serious injury or death.” But other statements in the literature seem to indicate that the rounds will disinte- grate on contact with wood. For instance, the literature states that breaching rounds “disintegrate[] into a fine powder”

Adding to the confusion is Safariland’s product catalog. The catalog features the breaching rounds on a page labeled “less lethal” and states that the rounds “[d]isintegrate[] on contact” and are “[s]afe to use at close distances.” A reasona- ble jury could interpret these statements as conveying the false impression that the breaching rounds are not particu- larly harmful, even when misfired. Therefore, the jury reason- ably could have found Safariland’s warnings inadequate. Sa- fariland is not entitled to judgment as a matter of law or a new trial on this basis. 8

5. Causation Finally, Safariland appeals the district court’s denial of its motion for a new trial on the issue of proximate causation. In its view, Hakim’s injury was caused solely by the SWAT

“Proximate cause encompasses two requirements” under Illinois law: “cause-in-fact and legal cause.” Malen v. MTD Prods., Inc., 628 F.3d 296, 309 (7th Cir. 2010) (citing Young v. Bryco Arms, 821 N.E.2d 1078, 1085–86 (Ill. 2004)). A defend- ant’s conduct is a cause-in-fact of a plaintiff’s injury if the con- duct “was a material element and a substantial factor in bring- ing about the injury.” Lee v. Chi. Transit Auth., 605 N.E.2d 493, 502 (Ill. 1992). Legal causation, meanwhile, is a question of foreseeability. Id. at 503. It exists so long as the plaintiff’s in- jury was a reasonably foreseeable result of the defendant’s conduct. Id. Proximate causation is typically a question for the jury. Williams v. Univ. of Chi. Hosps., 688 N.E.2d 130, 134 (Ill. 1997); Mack v. Ford Motor Co., 669 N.E.2d 608, 613 (Ill. App. Ct. 1996).

Here, Safariland spends pages rehashing how, in its view, the trial evidence suggested that DCSO acted improperly, but provides virtually no legal analysis to support its position as to proximate cause. It cites a grand total of two cases, neither of which provide any help in resolving the issue. Indeed, Sa- fariland fails to address any number of legal questions rele- vant to proximate cause. For example, under Illinois law, an injury may have multiple proximate causes. Mack, 669 N.E.2d at 613. Here, even assuming Safariland is right that DCSO was negligent, it is not clear why Safariland’s own failure to warn would not constitute an additional proximate cause of Hakim’s injuries, subjecting it to liability. Safariland’s arguments are wholly lacking, and we have made clear that such “perfunc- tory and undeveloped arguments, and arguments that are un- supported by pertinent authority, are waived.” Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (quoting United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991)). 9 B. Damages

Finally, Safariland appeals the district court’s denial of its motion for remittitur of the $7.5 million award or, in the alter- native, a new trial. Our review is for abuse of discretion. Rainey v. Taylor, 941 F.3d 243, 252 (7th Cir. 2019). We apply Il- linois law in determining whether Hakim’s damages were ex- cessive. Id. at 253.

Under Illinois law, an award of damages is excessive only if it “falls outside the range of fair and reasonable compensa- tion or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.” Richardson v. Chapman, 676 N.E.2d 621, 628 (Ill. 1997). And a jury’s verdict is accorded significant deference. Id. This is particularly true in personal- injury cases, where the precise dollar value of a person’s pain and suffering is difficult to measure. Snelson v. Kamm, 787 N.E.2d 796, 816 (Ill. 2003). Nevertheless, Illinois law does list some factors for us to consider, including the

Here, the jury’s award was rooted in the substantial evi- dence of Hakim’s pain and suffering. Hakim has been diag- nosed with various chronic, and seemingly permanent, med- ical conditions as a result of the shooting, including back pain, pain in his lower extremities, stiffness, an abnormal lumbar extension, and reflex and balance issues. He experiences daily pain, and he is limited in the pain medications he can safely take. His pain is often so severe that he can only sleep four to five hours a night. Moreover, the evidence indicates that Ha- kim’s condition may deteriorate in the future: he is at risk for additional spinal trauma, and he doubts that he will be able fully to perform his physically demanding law enforcement jobs “for more than a few years.” And the jury heard that Ha- kim’s injuries seriously restrict his personal and professional activities. As a result of the shooting, Hakim is not able to pass all SWAT performance and agility tests, and he needs to get out of his car every half-hour while on surveillance assign- ments so that he does not become stiff. At home, Hakim has

Based on this evidence, the jury’s award of $7.5 million, while perhaps on the high side, was not unreasonable or un- fair. 11 The district court therefore did not abuse its discretion in denying Safariland’s motion for remittitur or a new trial.

III. CONCLUSION We have considered Safariland’s remaining arguments, and none have merit. For the reasons stated above, the judg- ment of the district court is AFFIRMED.