- The Washington Times - Friday, April 27, 2001

New Yorks top court yesterday disarmed a swarm of plaintiffs in a key class-action lawsuit seeking to make 25 gunmakers pay for six murders and a wounding.
The seven-judge state Court of Appeals ruled unanimously that manufacturers cannot be held liable for the actions of retail gun buyers or even those who steal guns.
"The chain most often includes subsequent legal purchasers or even a thief," Judge Richard Wesley said in explaining why the Albany court decided the legal doctrine of "negligent entrustment" doesnt apply to gun companies.
The interpretation of state law — for which there is no appeal — likely will derail the legal theory that powered at least 17 copycat lawsuits by cities across the nation: that indiscriminate marketing and distribution practices generated an underground market in handguns for violent criminals.
More evidence of direct negligence would have to be established, considering the number of federally licensed dealers and wholesalers who process sales after a gun is manufactured, Judge Wesley said.
The unusual state ruling in a federal case likely will nullify a $4 million federal jury verdict in February 1999 against three gun companies.
Without proof of which company made the gun that wounded Stephen Fox, who is permanently disabled with a .25-caliber bullet still in his brain, the jury returned a verdict dividing the $4 million award according to the share of the gun market held by American Arms Inc., Beretta U.S.A. Corp., and Taurus International Manufacturing Inc.
Mr. Fox, now 23, survived a 1994 shooting by his friend, Alfred Adkins Jr., when both were 16. Adkins bought the gun shortly before the shooting, not from one of the 24 gun dealers who also were sued but from an unlicensed gun merchant hawking pistols from a car trunk in a city where such handguns are generally illegal. Adkins pleaded guilty to reckless endangerment.
Mr. Foxs New York lawyer, Elisa Barnes, who developed the theories of collective guilt and "duty" not to market hazardous guns, referred calls last night to co-counsel Marc Elovitz, who did not respond immediately to requests for comment.
The U.S. 2nd Circuit Court of Appeals, which now has jurisdiction of the case, threw out similar theories in the 1993 shootings that killed six Long Island Railroad passengers, including the husband of U.S. Rep. Carolyn McCarthy, New York Democrat.
Product-liability cases generally are governed by state law but may be filed in federal court when parties live in different states.
The Fox decision eventually could be reviewed by the U.S. Supreme Court on narrower federal grounds but the federal trial judge or the 2nd U.S. Circuit Court of Appeals now is likely to vacate the controversial legal ruling that led to it.
The opinion today said that manufacturers may become legally liable if they knowingly continue to distribute guns through dealers involved in illegal trafficking, but companies cannot be made to pay for gunshot injuries on the basis of how many guns it sells.
"No case has applied the market-share theory of liability to such varied conduct and wisely so," the court said, suggesting the issue could produce changes in the law.
The court noted the "novel theory, negligent marketing of a potentially lethal yet legal product, based upon the acts not of one manufacturer, but of an industry," but said it doesnt see that manufacturers have the duty the plaintiffs claim.
Highly publicized copycat cases in Chicago, New Orleans, Miami and elsewhere followed the Fox verdict based on rulings by U.S. District Judge Jack P. Weinstein.
Among those vowing to follow suit was Kwesi Mfume, president of the National Association for the Advancement of Colored People, who said the NAACP also would sue gunmakers in the wake of the groundbreaking Hamilton v. Accu-Tek decision. The NAACP press office did not respond last night to a call seeking comment.
"The gun industry has refused to take even basic measures to keep criminals and prohibited persons from obtaining firearms," Mr. Mfume said at a February 1999 press conference when he released drafts of his complaint.
Desmond Riley, spokesman for the D.C.-based Educational Fund to End Handgun Violence, said at the time that his group introduced Mr. Mfume and Ms. Barnes and helped obtain financing for his legal effort from George Soros Open Society Institute.
Four months after the Fox verdict triggered headlines in February 1999, Judge Weinstein began expressing doubts on the wisdom of his own judgment that the "ultrahazardous" nature of guns made the manufacturers liable to a greater degree than for other products.
In June 1999, Judge Weinstein joined in endorsing requests that the federal appeals court ask the state court for a ruling, which he had refused to do when asked earlier in the process.
"I think he recognizes his decision went far beyond what it allowed when the law is so strong on this issue. A company cant be held responsible for the criminal acts of others, where a party has no ability to control those acts," said a Chicago lawyer representing Smith & Wesson, Colts Manufacturing, and Sturm, Ruger, none of which was held liable in the case.
"Its not common for a district court judge to ask the federal appeals court to certify the question to the states highest court," said another gun industry lawyer who also asked not to be named.

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