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Detour
Delays Ruling on Gun Makers' Verdict
Daniel Wise
New York Law Journal
August 17, 2000
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The first jury verdict in the nation against a gun maker for injuries
caused by a properly functioning gun will likely remain in limbo for
another year, due to a ruling issued by the 2nd U.S. Circuit Court of
Appeals Wednesday.
In a 2 to 1 ruling, the 2nd Circuit sent the case to the New York Court of
Appeals for the resolution of two critical state law questions. The appeal
to the circuit court arose after a federal jury in Brooklyn had assessed
more than $500,000 in damages against three gun makers in February 1999.
Writing for the 2nd Circuit majority, Judge Richard J. Cardamone concluded
that New York's highest court should be given the opportunity to first
answer the question of whether the plaintiffs' negligent marketing theory
is cognizable under New York law.
The trial judge, Jack B. Weinstein, had allowed the families of seven
crime victims to take their case against 25 gun makers to trial on the
theory that the manufacturers had negligently flooded with firearms the
southern states that have weak gun control laws. It was entirely
foreseeable, the plaintiffs contended, that guns from the oversupplied
southern markets would seep into the illegal black market and make their
way to other states like New York, which have strict gun control statues,
and be used in crimes.
The 2nd Circuit in Hamilton v. Beretta U.S.A., 99-7753, also
referred a second question to the New York Court of Appeals: whether a
market share theory of liability could be used to apportion damages
against the three gun makers whom the jury held responsible for damages.
In February 1999, after a four-week trial, the Eastern District jury
returned verdicts of $272,000 against Taurus International Manufacturing
Inc.; $241,000 against Beretta U.S.A. Corp.; and $9,200 against American
Arms Inc.
Those awards were based upon findings that Taurus has 6.8 percent of the
national handgun market; Beretta, 6.0 percent; and American Arms 0.2
percent.
Courts in some instances have accepted a market share approach where it is
difficult, if not impossible, to show which manufacturers' product caused
the damage.
The jury had cleared 10 of the 25 manufacturers of any liability. While it
found that 15 defendants had negligently marketed their guns, it awarded
damages against only three of the gun makers in one of the seven shootings
alleged in the complaints.
Even though the jury found that nine gun makers had been negligently
responsible for two killings, it awarded damages in neither of those
instances. Instead, it held the three defendants liable for their share of
the damages to Stephen Fox, a Queens, N.Y., teenager who remains disabled
with a bullet lodged in his brain.
The jury set the total damages suffered by Fox at $3.5 million, but the
damages assessed against the three gun makers were limited to their share
of the national gun market.
DISSENT'S VIEW
Judge Jose A. Cabranes objected to the majority's referral of the case to
New York's high court and suggested that they refuse to hear it.
A case should be certified for resolution by a state's top court only when
there is insufficient precedent for the 2nd Circuit to predict the outcome
in the state court. In the gun case, Cabranes wrote, there was sufficient
precedent to predict how the New York Court of Appeals would decide the
issue. The referral, he concluded, "with its attendant expenses and
delay, is inappropriate."
But Cardamone, in the majority opinion, noted that the questions relating
to the acceptance of the plaintiff's negligent marketing theory were
"particularly thorny" and involved "a delicate balancing
test," raising difficult moral, logical, and policy considerations.
Eastern District Judge David G. Trager, sitting by designation, joined in
the majority.
BOOST FOR PLAINTIFFS
One aspect of the 2nd Circuit's decision gave the plaintiffs a significant
boost in refuting the manufacturers' claim that both the 2nd Circuit and
the Appellate Division, First Department, had rejected a negligent
marketing theory in a case arising from the slaying of six passengers on
the Long Island Railroad in 1995.
Judge Cardamone distinguished the plaintiffs' negligent marketing theory
from a similar claim that the court rejected involving the Black Talon
bullets that the Long Island Railroad gunman, Colin Ferguson, used to kill
six commuters and wound 19 others.
In the Long Island Railroad case, McCarthy v. Olin Corp., 119 F3d
148 (1997), the 2nd Circuit had rejected a negligent marketing theory
predicated on the sale of hollow-point Black Talon bullets to the general
public, as opposed to limiting sales to law enforcement agencies,
Cardamone pointed out.
In the case before Weinstein, Cabranes observed, the plaintiffs' were
pursuing a different argument: that the gun makers were under a duty to
"try to abate the illegal gun market." That contrasted sharply
with the theory in the Long Island Railroad case, he added, in which it
was being claimed that the maker of the hollow-point bullets was under a
duty "to predict and prevent every single illegal gun
transaction."
The plaintiffs were represented by Elisa Barnes; Marc E. Elovitz and
Michael S. Feldberg of Schulte Roth & Zabel; and Denise Dunleavy of
Weitz & Luxenberg, all of New York.
Baretta and American Arms were represented by Lawrence S. Greenwald, Nancy
E. Paige and Catherine A. Bledsoe of Baltimore-based Gordon Feinblatt,
Rothman, Hoffberger & Hollander; Lawrence G. Keane of Pelham,
Ala.-based Pino & Associates; and Daniel T. Hughes and Erin A. O'Leary
of Livingston, N.J.-based Morgan, Melhuish, Monaghan, Arvidson, Abrutyn
& Lisowski.
Taurus International was represented by Timothy A. Bumann, Geoffrey
Gaulkin and Dana S. Mancuso of Short Hills, N.J.-based Budd Larner Gross
Rosenbaum Greenberg & Sade; Barry S. Ostrager, Mary Beth Forshaw and
Gerald E. Hawxhurst of Los Angeles-based Simpson Thacher & Bartlett;
and Andrew Zajac of Jericho, N.Y.-based Fiedelman & McGaw. |
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