A federal judge has rebuffed a Pennsylvania-based gunmaker’s request and stood by her previous order allowing a jury to decide whether a manufacturing defect caused a handgun to accidentally discharge into its owner at a Colorado Springs movie theater.

U.S. Magistrate Judge Maritza Dominguez Braswell declined to reconsider her previous finding that John Heikkila could seek to hold Kahr Firearms Group liable solely on the theory that a manufacturing problem caused a bullet to lodge inside Heikkila when he allegedly dropped his pistol and it went off. Kahr attempted to argue that even Heikkila’s own expert could not name a defect, and no direct evidence supported the notion of an impact-driven discharge.

“The statute says nothing about modes of proof,” countered Dominguez Braswell in a March 6 order. The law “says what a plaintiff must prove, but it does not say how a plaintiff must prove it.”

She also found the federal law that generally shields gun manufacturers from civil liability did not apply in Heikkila’s case.

Heikkila, a veterinarian from Calhan, went with his wife and daughter to a Colorado Springs movie theater in August 2018. Beforehand, the family stopped to buy a holster for Heikkila’s pistol. In violation of theater policy, Heikkila wore the gun inside. After using the toilet, Heikkila stood up and began to tuck his shirt in.

In Heikkila’s telling, the gun, manufactured by Kahr, fell out of the holster, hit the ground and shot a bullet into his abdomen. Heikkila did not tell movie theater staff what happened, but instead found his family and rode to the hospital. He later sued Kahn for multiple product liability claims, including negligence.

Kahr argued Heikkila must have accidentally pulled the trigger to cause the discharge. The company also faulted Heikkila for his reckless behavior leading up to the shooting.

“It was obvious during this exercise that the manner and location of the holster and pistol worn by Mr. Heikkila created a gravely unsafe situation that he should have been aware of,” wrote firearms expert Michael Shain. “Mr. Heikkila was wearing/carrying this holster and pistol combination for the very first time. He had not taken any time to test or try this configuration to confirm that it was safe or to observe how it would perform before carrying it in public.”

Heikkila’s own expert, Paul Paradis, also performed “drop testing” of the same type of gun. It never discharged, but Paradis still opined it was “more likely than not” Heikkila’s gun shot him after being dropped.

Kahr then moved for summary judgment, which enables a judge to end the case without a trial if the key, undisputed facts point to only one outcome under the law. Given that Heikkila was unable to identify a manufacturing or design defect, the company argued, Kahr had no liability for his injuries.

In December, Dominguez Braswell partially agreed with Kahr. Because the drop testing of an identical gun did not result in a discharge, Heikkila would not be able to prove a design defect at trial. However, without testing of Heikkila’s specific weapon, it was still possible to argue to a jury that a manufacturing defect to his gun caused it to fire.

“For example, the jury might believe that the angle of the wound, the crack on the floor, the absence of residue and stippling, all indicate that the gun was discharged from a distance,” Dominguez Braswell wrote on Dec. 27. “Thus, Plaintiff’s evidence – even if not direct proof of a defect – is sufficient to survive summary judgment.”

She also found the federal Protection of Lawful Commerce in Arms Act did not bar Heikkila’s claims. The law permits some litigation against gun manufacturers for defect-related injuries, but not from “volitional” criminal use of a weapon. While Heikkila faced a criminal charge for firing his pistol, Dominguez Braswell noted the shooting seemingly was not purposeful, thus falling outside of the prohibition.

Kahr then requested that Dominguez Braswell reconsider her decision. The company insisted that Colorado law on manufacturing defects requires “direct evidence of variation from design,” which Heikkila did not have. Moreover, a “malfunction theory” could not substitute for proof of a manufacturing defect.

But Dominguez Braswell was unmoved.

“A jury could conclude – based on Defendant’s own expert testimony, Plaintiff’s expert testimony, the physical evidence in the case, and Plaintiff’s own testimony – that a properly operating pistol should not have discharged on impact, and that it did indeed discharge on impact here,” she wrote last week.

No jury trial is currently scheduled. Heikkila’s attorney died last fall and no other lawyer has stepped in on his behalf.

The legislature is considering a measure that would repeal the manufacturing and design defects law and instead impose broader liability on gun manufacturers for products used in Colorado.

The case is Heikkila v. Kahr Firearms Group.