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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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