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Two Pennsylvania parents have filed a federal suit against the U.S. Consumer Products Safety Commission challenging the commission’s decision not to pursue a recall of BB guns that they claim are defective and led to the death of their son after an accidental shooting. Attorneys Shanin Specter and Andrew Youman of Kline & Specter filed the suit on behalf of Jerome and Rebecca Mahoney, alleging that the CPSC’s settlement of its suit against Daisy Manufacturing Co. provided only a “toothless remedy” that requires no recall or any other corrective action by Daisy. In March 2001, Daisy agreed to pay $18 million to settle the Mahoneys’ original suit, which alleged that the gun, a Daisy “Power Line,” is defective because its interior, or magazine, allows BBs to become lodged, tricking users into thinking it is empty. As a result of the defect, the suit alleged, the gun may be “dry fired” several times with no BB expelled, but a BB can unexpectedly dislodge and become available for firing. That’s exactly what happened on May 24, 1999, when John Tucker Mahoney, 16, was shot in the back of the head by Ellsworth Weatherby, the suit said. The BB penetrated Mahoney’s skull and severed an artery, causing extensive brain damage. For several years he was unable to walk, talk, feed himself, or use his arms and legs. He died at age 20 of complications from his original injuries, according to the latest lawsuit. Even before the products liability case was settled, Specter and Youman were lobbying the CPSC to pursue a recall of 7.5 million similar guns, claiming that they had uncovered proof that Daisy was aware of the defect at least two years before the Mahoney accident. Now the Mahoneys claim that the CPSC at first vigorously prosecuted the case but that new commissioners recently voted 2-1 to approve a settlement that does not require any recall, effectively providing no remedy. According to the consent agreement posted on the CPSC’s Web site, Daisy has agreed as part of the settlement to provide extensive training on using its products and will report for four years to the CPSC on the extent that its training was conducted. The lawsuit claims that the settlement, which does not require a recall, is the equivalent of having dropped the suit. Commission Chairman Hal Stratton filed a statement in support of the settlement. “Based upon the evidence adduced in the case, I am not at all sure the CPSC complaint counsel would prevail on the merits of the case,” Stratton wrote. “Should the complaint counsel fail in their efforts to prove their case, consumers would obtain no benefit from a long and costly legal proceeding. The settlement, on the other hand, affords consumers a number of benefits “that will be put in place immediately.” The suit also alleges that the settlement was the product of private meetings between two of the commissioners and Daisy — excluding the third commissioner — and was approved without any hearing. Attached to the suit is the dissenting opinion of one commissioner who objected to the settlement on the grounds that the negotiation process violated CPSC rules and that it “does not do enough to protect the public from harm.” “Daisy met with my two colleagues and provided them with financial information. My office received no contact from Daisy and no financial information from them,” CPSC Commisioner Thomas Moore wrote in his dissent. “Now representatives of the commission have brokered a settlement agreement solely with Daisy, presumably on the basis of Daisy’s private representations. This is completely outside of the agency’s rules of practice,” the dissenting commissioner wrote. Moore also faulted his fellow commissioners for accepting Daisy’s claim that due to its precarious financial condition, it could not afford to conduct the recall. “Obviously, we do not want our actions to drive a company out of business � However, it is a risk that businesses face every day when they make products that have the capacity to kill and maim consumers,” Moore wrote. Stratton, in support of the settlement, wrote, “Although I don’t consider it determinative in itself, I have also taken Daisy’s financial condition into consideration. When considered with the other reasons to settle this matter, a settlement would provide certain immediate benefits to consumers, which they would not receive if Daisy becomes insolvent or this litigation drags on for years.”

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