A federal appeals panel has affirmed a DuPage County SWAT officer can keep a $7.5 million jury verdict awarded to him as a result of an injury suffered during a training exercise, deemed to be the result of a flawed 'breaching round' produced by tactical gear supplier Safariland.
David Hakim was on the DuPage County Sheriff’s Office Special Weapons and Tactics (SWAT) team during a December 2014 training session at an abandoned home. The training involved ammunition known as TKO Breaching Rounds, made by Safariland. According to court documents, officers fire shotgun shells loaded with zinc powder at door locks, hardware and safety chains. Upon impact, the shells are supposed to disintegrate into a fine powder.
Hakim said he was on the first floor of the home when another officer, practicing in the basement, fired between a hinge pin and door. One shell traveled through the door, hit a beam behind the door, deflected through the basement ceiling and struck Hakim’s body armor, deflecting into his spine. He successfully sued Safariland and Defense Technology Corporation of America with a jury awarding him compensatory damages in September 2021.
After U.S. District Judge Thomas Durkin upheld the verdict in April 2022, Safariland took the issue to the U.S. Seventh Circuit Court of Appeals. Judge John Z. Lee wrote the panel’s opinion, issued Aug. 21; Judges Diane Sykes and Joel Flaum concurred.
In his initial strict products liability lawsuit, Hakim said the ammunition was defectively designed and made, and also said the company failed to adequately warn the shells don’t disintegrate if they strike wood. The jury sided with Safariland on the design-defect allegations, but with Hakim on his failure to warn allegations. Safariland’s appeal addressed Judge Durkin’s denial of motions “challenging the sufficiency and weight of Hakim’s evidence as well as the size of the award,” Lee wrote.
Safariland had asked Durkin for judgment in its favor, arguing Hakim offered no expert testimony to support his failure to warn claim, noting “the breaching rounds are specialty products beyond the understanding of a typical lay juror,” according to Lee. While conceding the products are complex and expert testimony would be required to support allegations of product defects, the panel said the question of whether the company adequately warned its customers “is rather straightforward,” he continued.
“Did Safariland’s product literature adequately apprise consumers of the risk that the breaching rounds can remain live after striking wood?” the judge wrote.
Hakim argued the question would be suitable for a jury by noting even police officers are no more familiar than average consumers with kinetic or physical properties of specialty ammunition. Still, Safariland argued its warnings were adequate, or at least that the trial evidence supported that position despite the jury’s conclusion.
“Safariland acknowledges that none of its product literature specifically warns that breaching rounds that hit wood do not disintegrate,” Lee wrote, but said the company maintained its literature implied as such. But the panel pointed to printed material stating the bullets “disintegrate into a fine powder” when striking a “hard surface” as well as inclusion of the breaching rounds on catalog pages labeled “less lethal,” promising the rounds “disintegrate on contact” and are “safe to use at close distances” as reasons the jury could have sided with Hakim.
The company also said Judge Durkin should’ve granted it a new trial on its argument the SWAT officers conducted a sloppy training exercise. Safariland said the trial evidence suggests the sheriffs’ office acted improperly, “but provides virtually no legal analysis to support its position as to proximate cause,” Lee wrote. “It cites a grand total of two cases, neither of which provide any help in resolving the issue. Indeed, Safariland fails to address any number of legal questions relevant to proximate cause.”
Finally, the panel said, Safariland failed to make a compelling argument regarding the damage award. Lee said the verdict “was rooted in the substantial evidence of Hakim’s pain and suffering” and, “while perhaps on the high side, was not unreasonable or unfair.” That meant Judge Durkin didn’t abuse his discretion in denying a motion to reduce the award or order a new trial.
Hakim has been represented by attorney Edmund J. Scanlan, of Chicago.
Safariland was represented by attorneys Paul V. Esposito, Melinda S. Kollross and William W. Leathem, with the firm of Clausen Miller, of Chicago, and John W. Patton Jr. and Todd M. Porter, of Patton & Ryan, of Chicago.