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The California Supreme Court heard arguments Wednesday over whether a gun maker can be held liable for the 1993 shooting rampage at 101 California Street in San Francisco that left eight people dead. The justices also heard arguments in a closely watched test of the state’s mediation confidentiality laws. In the gun case, Merrill v. Navegar, S083466, victims of Gian Luigi Ferri’s rampage at the office of now-defunct Pettit & Martin allege Navegar negligently marketed its weapons and breached its duty of care. Though none of the justices was sympathetic to the gun maker, several expressed doubts that there was sufficient evidence to establish causation. Justice Ming Chin noted that Navegar’s advertisements boasted that its barrel extension increased bullet velocities. But, he asked a lawyer for the plaintiffs, “Must there be evidence that the marketing material caused him to buy the weapon or use the weapon in the way he did?” Dennis Henigan, an attorney with the Washington, D.C.-based Center to Prevent Handgun Violence, argued that Ferri would not have been able to carry out his vicious attack had the gun not been available to him. “Even if Ferri never saw any of the advertisements, he chose to engage in this kind of assault — he chose this strategy — because of this gun’s concealability and its extraordinary firepower,” Henigan said, later noting that Ferri even carried a Navegar manual explaining how to shoot the TEC-DC9s from the hip. But Justice Kathryn Mickle Werdegar said it appeared that police had failed to log into evidence many of the gun publications containing Navegar ads that Ferri allegedly had at his home. Justice Marvin Baxter, meanwhile, appeared concerned about the implications if a manufacturer is found liable because of negligent marketing. What if, he asked, a Chevrolet advertised a line of Corvettes that could reach speeds of 270 miles per hour and a speeding driver then crashed into a family’s car? Could Chevrolet be held liable? Henigan said the difference between Corvettes and semiautomatic assault weapons is that the California Legislature has banned the latter. And he said a jury should be able to decide if there’s enough evidence to establish a causal link between the marketing and the murders. But Ernest Getto, the Los Angeles-based Latham & Watkins partner representing Navegar, countered that the evidence in the case “merely creates the possibility” of causation — and that’s not enough. He also argued that the state Legislature hasn’t created a tort of negligent marketing. The only duty Navegar had, he told Chief Justice Ronald George, was not to sell defective product. When California’s First District Court of Appeal ruled 2-1 against Navegar two years ago, it was believed to be the first time any court had said gun makers could be held liable for criminal misuse of their products. Justice J. Anthony Kline wrote the controversial opinion with Justice James Lambden joining in the finding that Navegar had a duty not to increase the risks of its products. Kline wrote that Navegar negligently increased the likelihood its guns would cause harm by marketing the product to criminals by, among other things, noting their “excellent resistance to fingerprints.” But Justice Paul Haerle, in a scathing dissent, accused the majority of “an egregious exercise in judicial legislation” by creating a new California tort known as “negligent marketing.” Following the hour-long arguments, plaintiff Carol Kingsley, a San Francisco attorney and the widow of victim Jack Berman, said she was optimistic. “Some of the questions certainly seemed to suggest the justices would like to rule in our favor. How they vote as a court and come down on the legal threads of the case is another matter.” The mediation case, Foxgate v. Bramalea, S087319, stemmed from a judge’s sanction order against an attorney who, according to a mediator, had acted in bad faith by failing to show up with his expert witnesses as instructed. To encourage candor, the Legislature said statements made during mediation sessions are confidential. But Baxter said the statute “doesn’t say anything about conduct.” Some of the justices seemed to think judges should be able to punish mediation participants who act in bad faith because of the costs the other side is then forced to bear. But the sanctioned attorney, Rolling Hills Estates, Calif., sole practitioner Ivan Stevenson, had argued that the mediator only said he “should” bring his experts, making it a suggestion and not an order. Leonard Steiner, the opponent at the mediation, argued Wednesday that court-ordered mediations have become “quasi judicial” as judges increasingly favor them over other forms of alternative dispute resolution. “Almost all cases are being sent to mediation,” said Steiner, a partner with Beverly Hills’ Steiner & Libo. But Stevenson’s lawyer, Jon Eisenberg, said the Legislature had made its intentions clear. “Mediation is not a truth-seeking process. It’s not an adjudicative process. It’s a facilitative process,” said Eisenberg, of counsel in the Oakland, Calif., office of Encino’s Horvitz & Levy. “You can lead the horse to water, but you can’t make him drink.” Justice Joyce Kennard told Eisenberg she agreed with the characterization that mediations should open doors. “But if we were to agree with you,” she added, “people like your client could derail mediations.”

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