Court Pricks Lawsuit Bubble – Death knell possible

http://www.shotgunnews.com/knox/knox.dog?file=2001061.htm&tissue=2001061

By Neal Knox

WASHINGTON, D.C. (May 1)–The highest court in New York State may have
sounded the death knell for lawsuits attempting to hold gun manufacturers
liable for acts of gun-toting criminals.

In a 7-0 decision the New York Court of Appeals last week shot down the
foundation of a 1996 Brooklyn Federal Court ruling that resulted in a
$4 million jury award against three of the 49 gun companies originally
sued, divided according to their share of the gun market. (The jury did
not find all the companies liable because of slight variations in marketing
practices and other incomprehensible distinctions.)

The Brooklyn case, Hamilton v. Accutek, et al, inspired Dennis Hennigan
of Handgun Control Inc.’s legal foundation to promote similar lawsuits by
municipalities against gunmakers.

The first of those cases, brought in 1998 by New Orleans Mayor Marc Morial,
was dismissed 5-2 April 3 by the Louisiana Supreme Court, which this week
refused to reconsider.

Morial had stated that the purpose of the city’s lawsuit was political,
rumbling that if they couldn’t beat “the gun lobby” in the legislature
(where he once served) that they would beat them in the courts–and that
even if they couldn’t win huge tobacco-like financial settlements they
would bankrupt the gunmakers with legal fees.

In all, 30 lawsuits were filed by government entities; 13 of the 14 decided
cases have been totally or partially dismissed. But the other cases are still
going, with lawyer fees running up the costs of next year’s guns.

Mainly as a result of efforts by NRA, two dozen states have passed Louisiana
type legislation prohibiting “frivolous lawsuits” against gunmakers.

Rep. John Hostettler’s (R-Ind.) office told me today that he is refiling
his Federal version.

The state court’s decision addressed Federal Judge Jack Weinstein’s 1996
ruling that lawyers for families of gunshot victims could argue that
gunmakers should be held “collectively liable” for violence committed
with firearms. There was no proof which gun company had made the .25 ACP
bullet still embedded in the brain of one of the plaintiffs.

The 1999 judgement was appealed to the U.S. 2nd Circuit, which asked the
New York Court of Appeals whether Weinstein’s ruling was in accordance with
state law.

The state court was specifically asked whether manufacturers had “a duty
to exercise reasonable care in the marketing and distribution” of handguns,
and whether liability could be apportioned according to their share of the
market.

The New York court firmly declared “No.”

HCI’s Hennigan acknowledged that the decision will almost certainly result
in the jury award being overturned. It will also overturn the only court
precedent in support of the remaining suits against gunmakers.

Plaintiff’s lawyers, echoed by the press, claim that the court “gave us a
road map” of how to win such a case.

In fact, the court poked holes in some of the favorite claims of the anti-gun
crowd, making the point that “General statements about an industry are not the
stuff by which a common-law court” can assign liability.

In a footnote which plaintiff’s attorneys inexplicably praised, the court
pointed out the most obvious flaw in the Charles Schumer-hyped 1998 BATF
“study” which found that only 1.2 percent of dealers accounted for 57 percent
of the “crime guns” traced. The court dryly noted that the data does not reveal
whether it is due to irresponsible conduct, “or merely reflects a high volume
or legal sales or some other activity (such as theft) over which the FFL has
no control.”

The court said manufacturers cannot get involved in investigating a high number
of traces to a particular dealer because they are not informed the purpose of
the trace or the results, and any such private investigating might interfere
with a criminal investigation.

Recognizing that the plaintiffs were trying to use the courts for political
objectives, the court said “we should be cautious in imposing novel theories
of tort liability while the difficult problem of illegal gun sales in the
United States remains the focus of a national policy debate.”

The court noted that what plaintiffs wanted raised “practical concerns both
about potentially limitless liability and about the unfairness of imposing
liability for the acts of another.”

“Although plaintiffs have presented us with a novel theory –negligent
marketing of a potentially lethal yet legal product, based upon the acts
not of one manufacturer, but of an industry –we are unconvinced that, on
the record before us, the duty plaintiffs wish to impose is either reasonable
or circumscribed.”

Translated that means: “Get your silly case out of our court.”

http://www.courts.state.ny.us/ctapps/decisions/36opn.pdf