This story from the Wall Street Journal shows how the fate of an entire industry may have been determined by one arrogant pushy juror with the rest becoming too tired and disgusted to keep up the fight. They seem to be amazed at the reality of their own verdict and the verdict does not seem to reflect their feelings about the case. If there is a better indicator that the tort system is completely unqualifed to deal with this type of litigation ... I've never seen it!:
******************************************
Open Season:
How a Jury Placed The Firearms Industry On the Legal Defensive
---
Squabbling and Haggling, Panel Managed to Form Consensus on Negligence
---
A Nurse's Clandestine Note
----
By Vanessa O'Connell and Paul M. Barrett
Staff Reporters of The Wall Street Journal
------------------------------------------------------------------------
BROOKLYN, N.Y. -- In a handgun-liability trial that ended here last
week, plaintiffs' lawyers elicited testimony from a parade of experts in
economics, marketing and ballistics to argue that handgun manufacturers
should do more to ensure that weapons don't wind up in criminal hands.
Lawyers for a group of 25 gun makers answered with a procession of
expert witnesses to argue the opposite.
The jurors ignored almost all of it.
Instead, the nine women and two men on the federal-court jury devised
their own quirky system to determine that 15 of the companies
distributed handguns negligently and that three of them should pay
damages to one plaintiff, a 19-year-old boy with a bullet lodged in his
brain. The six other plaintiffs, relatives of people killed by handguns,
received no damages. The jurors' decision marks the first time that the
firearms industry has been held legally responsible for the criminal use
of guns.
This was no slam-dunk verdict. Confused by much of what they heard in
the courtroom, the jurors struggled for six days to reach consensus.
"There was a lot of nit-picking and a lot of going at each other," says
juror Sharlene England. Several jurors complained that the tension
caused them physical pain. Carmen Rivera got so upset that she threw up.
Charles Beatty, a driving instructor, went to the men's room to pray for
guidance.
But ultimately, the jurors' commitment to their own formula for
determining liability produced unanimity in favor of the plaintiffs --
even though eight of the 11 panel members favored the gun makers. The
decision is expected to inject new energy into a growing list of
lawsuits filed by cities seeking reimbursement for hundreds of millions
of dollars in public costs related to gun violence.
Interviews with five of the jurors and with lawyers from both sides who
debriefed some of those jurors, as well as others, after their verdict
last Thursday reveal an unsettling lesson for the gun industry: If some
jurors who are disposed to favor gun makers are willing to compromise on
even a little bit of liability, jury-room bargaining in this nascent
litigation war can favor the antigun side. That creates a powerful
incentive for more cities and individual plaintiffs to take a crack at
the industry, hoping to hit a strongly pro-victim jury eager to award
big damages. Defense lawyers in the Brooklyn case say they plan to
appeal the verdict because, among other things, it is based on improper
"horse-trading" by jurors.
The irony that most of the jurors in Brooklyn considered themselves
unsympathetic to the plaintiffs' main witnesses and legal arguments only
makes the message to the industry more ominous. The prospect of years of
costly lawsuits could prompt gun makers to consider following the
example of the cigarette makers that have agreed to pay $246 billion
over 25 years to settle suits by state attorneys general.
The 11 jurors in Brooklyn -- a 12th had been dismissed by the judge for
chronic lateness -- settled into the dingy, windowless jury room Feb. 4,
after listening to evidence for four weeks. They took a preliminary
anonymous vote by placing slips of paper in a Maxwell House coffee can.
The result: five for the defendants, three for the plaintiffs, three
undecided.
It soon became clear, though, that the vote was 8-3 to reject the core
of the plaintiffs' case. Lead plaintiffs' attorney Elisa Barnes had
contended that scrutiny of federal gun statistics revealed that
manufacturers saturate Southern states that have lax gun regulations,
causing thousands of weapons to flow to criminals. To prove her point,
her experts spoke of "regression analysis" and "standard deviations."
But two jurors, Donna Romano, a 26-year-old statistician with the
Publishers' Clearinghouse sweepstakes firm, and a 28-year-old accountant
with an oil company, dismissed this testimony, telling their fellow
jurors that numbers can be twisted to make almost any point. As a
result, the rest of the jurors "didn't really discuss the statistics for
either side. We didn't buy into it," says Ms. England, 34, a teacher's
assistant.
The jurors similarly agreed to toss out days of testimony by each side's
ballistics experts, who were called to talk about the types of guns used
in each of the seven shootings. The plaintiffs' witness, a retired New
York City police officer, hadn't been thorough enough, they thought. The
objection to the companies' expert, George Krivosta, was that he was an
employee of Suffolk County, N.Y. An assertive 29-year-old nurse who
lives in the same Long Island county told her fellow jurors that Mr.
Krivosta couldn't know what he was talking about because there wasn't
much crime in Suffolk County. In fact, Mr. Krivosta, a nationally known
ballistics specialist, testified for the U.S. government in the Oklahoma
City bombing case. But in Brooklyn, he got no respect.
The nurse, whose first name is Denise but whose last name couldn't be
determined (the court kept official jury records secret), soon emerged
as the most forceful personality on the jury. Her mantra: Gun companies
have some general responsibility for the millions of weapons they
produce. She pointed to two retired officials of the federal Bureau of
Alcohol, Tobacco and Firearms who had testified that illicit sales at
gun shows and by dealers who operate out of garages or car trunks are
major channels for arming criminals.
Denise "just wouldn't stop talking" about gun shows, recalls Ms. Rivera,
a 49-year-old postal clerk who had drifted to the pro-gun side from the
undecided camp. Having rejected much of what the lawyers and experts had
told them, the jurors decided to explore Denise's newfound passion by
examining for themselves some of the primary materials from the trial,
including the manufacturers' contracts with their wholesalers and their
product catalogs. The judge had the documents sent into the jury room.
The documents, which Denise felt would show that gun makers had been lax
in monitoring the distribution of their firearms, only fueled friction.
Ed Remek, 49, a gun owner, said he didn't see how the companies could be
blamed for street crime and couldn't imagine awarding any damages.
Denise attacked his intransigence. "There was a lot of arguing, yelling
and finger-pointing," says Ms. England. There also were muttered jokes
about borrowing the marshal's gun to settle matters.
After nearly four days of this, some jurors were exhausted and
disgusted. Last Tuesday afternoon, they sent a joint note to the judge:
"We are all very upset. We are starting to fight. We cannot reach a
decision. We are emotionally drained and some of us feel physically
ill!! Please, please give us more direction!!"
But Judge Jack Weinstein had no intention of allowing a hung jury. He
called the jurors into the courtroom and told them, "Everybody has
invested, including yourselves, too much in this case to allow you to
throw up your hands prematurely." He sent them home early at 3 p.m. Five
of the pro-defense jurors walked a few blocks to a bar, where they
sipped drinks and talked about how much Denise was annoying them,
according to Ms. Rivera.
But even though eight of the 11 jurors still opposed finding liability,
it became clear that Denise was making progress. At least several of the
pro-defense jurors, including Ms. Romano, Ms. Rivera and Ms. England,
were willing to "buy into" the idea that manufacturers might have been
negligent, with the understanding that there wouldn't be any money
awarded. As these pro-defense jurors understood it, any verdict that
lacked a price tag would be merely symbolic.
Others saw it differently. Mr. Beatty, for example, spoke only of his
determination that all of the plaintiffs should get some money,
regardless of the legal theory agreed upon. As he began calculating what
he thought would be fair amounts, other jurors constructed a unique
technique for determining liability.
Agreeing that at a minimum companies should discourage sales at gun
shows and by dealers who don't have stores, they put each company into
one of three groups. Those whose contracts with wholesalers included
these restrictions from 1989 to 1994, such as Smith & Wesson Corp., a
unit of Britain's Tompkins PLC, and Sturm, Ruger & Co., were found not
negligent. Those whose contracts lacked the restrictions, such as Colt's
Manufacturing Co. and the Beretta U.S.A. Corp. unit of Italy's Beretta
SpA, were found negligent on that basis alone.
The jurors wrestled over what to do with some manufacturers that didn't
have written agreements at all. In the end, the jurors let these
companies off the hook. Some now concede that that didn't make a lot of
sense.
The method by which 15 companies were found negligent may have been
simplistic, but "it was the only thing we could come up with," says one
pro-defense juror who asked not to be identified.
The 42-page verdict form designed by Judge Weinstein directed the jurors
to decide whether any negligent companies had directly caused the seven
shootings. For that task, the jurors turned to the pile of product
catalogs.
In most of the shootings, the general make of gun -- for example, .38
caliber or nine millimeter -- had been determined, so the jurors looked
through the catalogs to see which of the 15 negligent companies produced
the corresponding gun types. The jurors ignored evidence that showed how
many of each type of gun each company had actually made, as well as
breakdowns of which companies manufactured the guns most frequently
associated with crime.
As the catalog search narrowed the group of liable companies to nine,
feuding intensified, with some jurors announcing that they wouldn't
continue down this path. During one chaotic exchange, Mr. Remek, the gun
owner, fumed that he wouldn't assess damages because doing so would
encourage frivolous litigation, according to another juror who heard his
comment.
This prompted Denise to seek a judicial scolding for Mr. Remek. Last
Thursday morning, without telling any of her colleagues, she handed the
marshal another note for the judge. Ten jurors had "decided to work
together to reach a verdict," she wrote. But "one juror refused because
he or she feels the verdict 'will open the floodgate of lawsuits across
the country.' Could the judge address the importance of focusing on only
the evidence in these seven cases?"
Most of the rest of the jury was outraged; the group had agreed to send
only notes that all had agreed to. Still, Denise's clandestine move
worked. Judge Weinstein brought the jurors into the courtroom and
admonished them to consider only the evidence in the case before them.
Neither Denise nor Mr. Remek could be reached for comment.
When deliberations resumed, the jurors turned to police reports and
other information about the individual shootings. Jurors favoring the
gun makers argued that several plaintiffs had put themselves in harm's
way and didn't deserve damages. But Mr. Beatty singled out Steven Fox,
the young man who survived after being shot in the head by a friend, as
someone who should be compensated because he still had most of his life
in front of him. Mr. Beatty said Mr. Fox deserved at least $8 million.
"It's not your money" that would go to the plaintiffs, Mr. Beatty
repeatedly told his colleagues, several jurors say.
Weary and eager to reach a conclusion, the pro-industry jurors,
including Mr. Remek, dropped their opposition to any damages and agreed
to compromise. A round of bidding took the Fox award down to $4 million.
The survivors of the six fatalities would get nothing.
According to their catalogs, only three companies -- Beretta, American
Arms Inc. and the Taurus International Manufacturing Inc. unit of
Brazil's Forjas Taurus SA -- made the type of .25 caliber handgun used
in the Fox shooting. The three companies had a total of about 13% of the
handgun market; the jury awarded Mr. Fox that percentage of $4 million
-- about $520,000.
"When you go on jury duty, everybody has got to compromise a little,"
says Mr. Beatty.
Several of the jurors who favored the gun makers admit to ambivalence
over the result, saying in interviews that they never thought it would
be viewed as a blow to the gun industry. "Really the plaintiffs lost
because they had the burden of proof, and in the end, there wasn't
enough there," says Ms. Rivera. "I didn't grasp that we had found so
many negligent until I read it in the papers the next day."
******************************************
Open Season:
How a Jury Placed The Firearms Industry On the Legal Defensive
---
Squabbling and Haggling, Panel Managed to Form Consensus on Negligence
---
A Nurse's Clandestine Note
----
By Vanessa O'Connell and Paul M. Barrett
Staff Reporters of The Wall Street Journal
------------------------------------------------------------------------
BROOKLYN, N.Y. -- In a handgun-liability trial that ended here last
week, plaintiffs' lawyers elicited testimony from a parade of experts in
economics, marketing and ballistics to argue that handgun manufacturers
should do more to ensure that weapons don't wind up in criminal hands.
Lawyers for a group of 25 gun makers answered with a procession of
expert witnesses to argue the opposite.
The jurors ignored almost all of it.
Instead, the nine women and two men on the federal-court jury devised
their own quirky system to determine that 15 of the companies
distributed handguns negligently and that three of them should pay
damages to one plaintiff, a 19-year-old boy with a bullet lodged in his
brain. The six other plaintiffs, relatives of people killed by handguns,
received no damages. The jurors' decision marks the first time that the
firearms industry has been held legally responsible for the criminal use
of guns.
This was no slam-dunk verdict. Confused by much of what they heard in
the courtroom, the jurors struggled for six days to reach consensus.
"There was a lot of nit-picking and a lot of going at each other," says
juror Sharlene England. Several jurors complained that the tension
caused them physical pain. Carmen Rivera got so upset that she threw up.
Charles Beatty, a driving instructor, went to the men's room to pray for
guidance.
But ultimately, the jurors' commitment to their own formula for
determining liability produced unanimity in favor of the plaintiffs --
even though eight of the 11 panel members favored the gun makers. The
decision is expected to inject new energy into a growing list of
lawsuits filed by cities seeking reimbursement for hundreds of millions
of dollars in public costs related to gun violence.
Interviews with five of the jurors and with lawyers from both sides who
debriefed some of those jurors, as well as others, after their verdict
last Thursday reveal an unsettling lesson for the gun industry: If some
jurors who are disposed to favor gun makers are willing to compromise on
even a little bit of liability, jury-room bargaining in this nascent
litigation war can favor the antigun side. That creates a powerful
incentive for more cities and individual plaintiffs to take a crack at
the industry, hoping to hit a strongly pro-victim jury eager to award
big damages. Defense lawyers in the Brooklyn case say they plan to
appeal the verdict because, among other things, it is based on improper
"horse-trading" by jurors.
The irony that most of the jurors in Brooklyn considered themselves
unsympathetic to the plaintiffs' main witnesses and legal arguments only
makes the message to the industry more ominous. The prospect of years of
costly lawsuits could prompt gun makers to consider following the
example of the cigarette makers that have agreed to pay $246 billion
over 25 years to settle suits by state attorneys general.
The 11 jurors in Brooklyn -- a 12th had been dismissed by the judge for
chronic lateness -- settled into the dingy, windowless jury room Feb. 4,
after listening to evidence for four weeks. They took a preliminary
anonymous vote by placing slips of paper in a Maxwell House coffee can.
The result: five for the defendants, three for the plaintiffs, three
undecided.
It soon became clear, though, that the vote was 8-3 to reject the core
of the plaintiffs' case. Lead plaintiffs' attorney Elisa Barnes had
contended that scrutiny of federal gun statistics revealed that
manufacturers saturate Southern states that have lax gun regulations,
causing thousands of weapons to flow to criminals. To prove her point,
her experts spoke of "regression analysis" and "standard deviations."
But two jurors, Donna Romano, a 26-year-old statistician with the
Publishers' Clearinghouse sweepstakes firm, and a 28-year-old accountant
with an oil company, dismissed this testimony, telling their fellow
jurors that numbers can be twisted to make almost any point. As a
result, the rest of the jurors "didn't really discuss the statistics for
either side. We didn't buy into it," says Ms. England, 34, a teacher's
assistant.
The jurors similarly agreed to toss out days of testimony by each side's
ballistics experts, who were called to talk about the types of guns used
in each of the seven shootings. The plaintiffs' witness, a retired New
York City police officer, hadn't been thorough enough, they thought. The
objection to the companies' expert, George Krivosta, was that he was an
employee of Suffolk County, N.Y. An assertive 29-year-old nurse who
lives in the same Long Island county told her fellow jurors that Mr.
Krivosta couldn't know what he was talking about because there wasn't
much crime in Suffolk County. In fact, Mr. Krivosta, a nationally known
ballistics specialist, testified for the U.S. government in the Oklahoma
City bombing case. But in Brooklyn, he got no respect.
The nurse, whose first name is Denise but whose last name couldn't be
determined (the court kept official jury records secret), soon emerged
as the most forceful personality on the jury. Her mantra: Gun companies
have some general responsibility for the millions of weapons they
produce. She pointed to two retired officials of the federal Bureau of
Alcohol, Tobacco and Firearms who had testified that illicit sales at
gun shows and by dealers who operate out of garages or car trunks are
major channels for arming criminals.
Denise "just wouldn't stop talking" about gun shows, recalls Ms. Rivera,
a 49-year-old postal clerk who had drifted to the pro-gun side from the
undecided camp. Having rejected much of what the lawyers and experts had
told them, the jurors decided to explore Denise's newfound passion by
examining for themselves some of the primary materials from the trial,
including the manufacturers' contracts with their wholesalers and their
product catalogs. The judge had the documents sent into the jury room.
The documents, which Denise felt would show that gun makers had been lax
in monitoring the distribution of their firearms, only fueled friction.
Ed Remek, 49, a gun owner, said he didn't see how the companies could be
blamed for street crime and couldn't imagine awarding any damages.
Denise attacked his intransigence. "There was a lot of arguing, yelling
and finger-pointing," says Ms. England. There also were muttered jokes
about borrowing the marshal's gun to settle matters.
After nearly four days of this, some jurors were exhausted and
disgusted. Last Tuesday afternoon, they sent a joint note to the judge:
"We are all very upset. We are starting to fight. We cannot reach a
decision. We are emotionally drained and some of us feel physically
ill!! Please, please give us more direction!!"
But Judge Jack Weinstein had no intention of allowing a hung jury. He
called the jurors into the courtroom and told them, "Everybody has
invested, including yourselves, too much in this case to allow you to
throw up your hands prematurely." He sent them home early at 3 p.m. Five
of the pro-defense jurors walked a few blocks to a bar, where they
sipped drinks and talked about how much Denise was annoying them,
according to Ms. Rivera.
But even though eight of the 11 jurors still opposed finding liability,
it became clear that Denise was making progress. At least several of the
pro-defense jurors, including Ms. Romano, Ms. Rivera and Ms. England,
were willing to "buy into" the idea that manufacturers might have been
negligent, with the understanding that there wouldn't be any money
awarded. As these pro-defense jurors understood it, any verdict that
lacked a price tag would be merely symbolic.
Others saw it differently. Mr. Beatty, for example, spoke only of his
determination that all of the plaintiffs should get some money,
regardless of the legal theory agreed upon. As he began calculating what
he thought would be fair amounts, other jurors constructed a unique
technique for determining liability.
Agreeing that at a minimum companies should discourage sales at gun
shows and by dealers who don't have stores, they put each company into
one of three groups. Those whose contracts with wholesalers included
these restrictions from 1989 to 1994, such as Smith & Wesson Corp., a
unit of Britain's Tompkins PLC, and Sturm, Ruger & Co., were found not
negligent. Those whose contracts lacked the restrictions, such as Colt's
Manufacturing Co. and the Beretta U.S.A. Corp. unit of Italy's Beretta
SpA, were found negligent on that basis alone.
The jurors wrestled over what to do with some manufacturers that didn't
have written agreements at all. In the end, the jurors let these
companies off the hook. Some now concede that that didn't make a lot of
sense.
The method by which 15 companies were found negligent may have been
simplistic, but "it was the only thing we could come up with," says one
pro-defense juror who asked not to be identified.
The 42-page verdict form designed by Judge Weinstein directed the jurors
to decide whether any negligent companies had directly caused the seven
shootings. For that task, the jurors turned to the pile of product
catalogs.
In most of the shootings, the general make of gun -- for example, .38
caliber or nine millimeter -- had been determined, so the jurors looked
through the catalogs to see which of the 15 negligent companies produced
the corresponding gun types. The jurors ignored evidence that showed how
many of each type of gun each company had actually made, as well as
breakdowns of which companies manufactured the guns most frequently
associated with crime.
As the catalog search narrowed the group of liable companies to nine,
feuding intensified, with some jurors announcing that they wouldn't
continue down this path. During one chaotic exchange, Mr. Remek, the gun
owner, fumed that he wouldn't assess damages because doing so would
encourage frivolous litigation, according to another juror who heard his
comment.
This prompted Denise to seek a judicial scolding for Mr. Remek. Last
Thursday morning, without telling any of her colleagues, she handed the
marshal another note for the judge. Ten jurors had "decided to work
together to reach a verdict," she wrote. But "one juror refused because
he or she feels the verdict 'will open the floodgate of lawsuits across
the country.' Could the judge address the importance of focusing on only
the evidence in these seven cases?"
Most of the rest of the jury was outraged; the group had agreed to send
only notes that all had agreed to. Still, Denise's clandestine move
worked. Judge Weinstein brought the jurors into the courtroom and
admonished them to consider only the evidence in the case before them.
Neither Denise nor Mr. Remek could be reached for comment.
When deliberations resumed, the jurors turned to police reports and
other information about the individual shootings. Jurors favoring the
gun makers argued that several plaintiffs had put themselves in harm's
way and didn't deserve damages. But Mr. Beatty singled out Steven Fox,
the young man who survived after being shot in the head by a friend, as
someone who should be compensated because he still had most of his life
in front of him. Mr. Beatty said Mr. Fox deserved at least $8 million.
"It's not your money" that would go to the plaintiffs, Mr. Beatty
repeatedly told his colleagues, several jurors say.
Weary and eager to reach a conclusion, the pro-industry jurors,
including Mr. Remek, dropped their opposition to any damages and agreed
to compromise. A round of bidding took the Fox award down to $4 million.
The survivors of the six fatalities would get nothing.
According to their catalogs, only three companies -- Beretta, American
Arms Inc. and the Taurus International Manufacturing Inc. unit of
Brazil's Forjas Taurus SA -- made the type of .25 caliber handgun used
in the Fox shooting. The three companies had a total of about 13% of the
handgun market; the jury awarded Mr. Fox that percentage of $4 million
-- about $520,000.
"When you go on jury duty, everybody has got to compromise a little,"
says Mr. Beatty.
Several of the jurors who favored the gun makers admit to ambivalence
over the result, saying in interviews that they never thought it would
be viewed as a blow to the gun industry. "Really the plaintiffs lost
because they had the burden of proof, and in the end, there wasn't
enough there," says Ms. Rivera. "I didn't grasp that we had found so
many negligent until I read it in the papers the next day."