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Despite warnings from eight judges that the court was dangerously expanding California tort liability law, the 9th U.S. Circuit Court of Appeals declined recently to revisit a high-profile suit against gun manufacturers. The case, Ileto v. Glock Inc., No. 04 C.D.O.S. 4631, was filed by victims of a California shooting rampage. In 1999, Buford Furrow injured four children and one adult at the North Valley Jewish Community Center in Granada Hills before killing Joseph Ileto, a U.S. postal worker. Furrow was sentenced to life in prison. The victims sued Austrian handgun manufacturer Glock and Chinese manufacturer China North, as well as other entities involved in the making, marketing and distribution of Furrow’s seven illegally obtained weapons. Alleging that the manufacturers were negligent and that they created a public nuisance, Ileto’s mother and other victims argued that the companies were to blame for promoting a secondary market for illegal gun distribution. The case was thrown out by U.S. District Judge Audrey Collins of Los Angeles, but reinstated in November by a divided 9th Circuit panel. Senior Judge Cynthia Holcomb Hall dissented from judges Sidney Thomas and Richard Paez, who wrote the majority opinion. ‘Creative interpretation’ The court declined to take the case en banc. Eight judges dissented, saying the court should not only rehear the case, but remand it to California courts. They also predicted an upswell in litigation. “The panel’s creative interpretation of California law is wrong and will have a deleterious impact on California, manufacturers, and the federal and state courts,” Judge Consuelo Callahan wrote. “Common negligence concepts of duty and causation do not allow the unfortunate victims of the criminal use of a dangerous, but not defective, product to recover from the product’s manufacturer simply because the manufacturer’s marketing schemes allegedly promoted a secondary market that purportedly facilitated the illegal purchase of the product.” Callahan’s 13-page dissent was signed by judges Alex Kozinski, Diarmuid O’Scannlain, Andrew Kleinfeld, Ronald Gould, Richard Tallman, Jay Bybee and Carlos Bea. Kozinski added a one-paragraph dissent that was joined by Callahan and four others. The gun manufacturers are mulling whether to appeal to the U.S. Supreme Court, which has so far been reluctant about reviewing gun cases. The defendants’ lead counsel, Christopher Renzulli of New York’s Renzulli, Pisciotti & Renzulli, agreed with the dissenting judges that the ruling will flood courts with tort cases against manufacturers of all types of products.

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