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The manufacturer of a BB gun has agreed to pay nearly $18 million to settle a federal lawsuit brought by the family of a Bucks County, Pa., teenager who was left severely brain-damaged after an accident in which his best friend, mistakenly believing that the gun was empty of ammunition, shot him. The suit alleged that the gun, a “Power Line” made by Daisy Manufacturing Co., is defective because its interior or “magazine” allows BBs to become lodged, tricking users into thinking it is empty. Although the gun may be “dry fired” several times with no BB expelled, a BB can unexpectedly dislodge and become available for firing unbeknownst to the user, the suit said. That’s exactly what happened on May 24, 1999, when John Tucker Mahoney was shot in the back of the head by Ellsworth Weatherby. The BB penetrated Mahoney’s skull and severed an artery, causing extensive brain damage. So far, Mahoney has made only minimal recovery from his injuries and is unable to walk, talk, feed himself or use his arms and legs. He is also unable to express himself other than by moving his eyes or a finger. Under the terms of the settlement, which was approved by U.S. District Judge J. Curtis Joyner, Daisy will pay $17.95 million to the Mahoney family. In a second lawsuit in Bucks County against the family of the boy who fired the gun, the Mahoney family settled for $1 million — the policy limit on a homeowner’s insurance policy. Court papers show that more than $11.5 million of the settlement money will be used to set up a “special needs” trust to provide for the boy’s lifetime of medical care. The family’s lawyers, Shanin Specter and Andrew S. Youman of Kline & Specter, will be paid fees of more than $6.3 million from the settlement as well as costs of more than $180,000. The case was scheduled to go to trial later this month, and expert reports filed in court show that Specter and Youman had a strong case. Several of the experts were harshly critical of the BB gun and of Daisy’s failure to make it safe despite being aware of identical accidents dating back to the 1970s. One expert said Daisy had violated federal law by failing to inform the Consumer Products Safety Commission that it had heard numerous complaints about unexpected firings of guns that users believed were empty because shaking them elicited no noise. William F. Kitzes of Consumer Safety Association in Boca Raton, Fla., said in his report that prior to Mahoney being shot, Daisy had evidence of more than 30 similar incidents and had settled numerous lawsuits, including one that settled for $5 million. Kitzes concluded that Daisy “appeared to have hidden the true and complete facts from the CPSC in an effort to prevent them from requiring a corrective plan.” The final opinion by Kitzes, who is also a lawyer, would likely have been some of the most compelling testimony if the case had gone to trial. He wrote: “Daisy acted with a clear, conscious, willful and reckless disregard for the safety of young consumers by knowingly producing and distributing defective guns.” Kitzes also criticized Daisy for refusing to pull the guns from store shelves even after it redesigned the gun to fix the problem, saying it chose instead to continue distributing defective guns until the inventory ran out. Another expert, David G. Townshend of Forensic Examination Service in Mason, Miss., opined in his report that the Daisy gun also has a “lethal projectile velocity” that allowed the BB to pierce Mahoney’s skull. Townshend said that when a BB is lodged in the gun’s magazine, there is no way for a user to determine whether it is out of ammunition without taking the gun apart — which Daisy advises users not to do. In an interview Thursday, Specter said the Mahoney case was one of those rare cases where a lawyer’s job also includes duties as a citizen to protect the public from an unsafe product. Specter said he met with CPSC officials on numerous occasions to educate them on the dangers of the Daisy gun — a task he said should have been done by Daisy itself since the law requires manufacturers to keep the CPSC apprised of all known defects. In the end, Specter said he hopes his work results in a national recall of the guns since they are still in millions of homes. Daisy was represented by Nancy R. Winschel and David M. Newhart of Dickie McCamey & Chilcote in Pittsburgh, with Michael P. Rausch and Joseph V. Pinto of White & Williams in Philadelphia as local counsel.

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