-----Original Message-----
From: VTGUNS@aol.com <VTGUNS@aol.com>
To: VTGUNS@aol.com <VTGUNS@aol.com>
Date: Wednesday, August 23, 2000 7:14 PM
Subject: Good News Federal 2nd Circuit Court of Appeals
>Hello List:
>
>This is good news! The 2nd Circuit (which also included Vermont)
>has thrown a roadblock into the anti gun litigation. Judge Weinstein is
>notorious as a pro plaintiff judge who eagerly finds legal theory to support
>politically based negligence cases. This was the benchmark gun liability
>case - the first (and only that I am aware) where a jury found gun
>manufacturers
>"guilty" of "negligent distribution."
>
>You can bet that many major manufacturers of all sorts of products are playing
>very close attention to this and similiar cases. If guns are found liable for
>"negligent
>distribution" what about liquor companies, knife makers, drug companies, etc?
>
>I predict that the NY Court of Appeals will stiffle this case. It can cause a
>very
>bad precedent. Many non gun companies will be agitating behind the scenes in
>this case.
>
>
>Detour Delays Ruling on Gun Makers' Verdict
>Daniel Wise
>New York Law Journal
>
>August 17, 2000
>
> The first jury verdict in the nation against a gun maker for injuries caused
>by a properly functioning gun will likely remain in limbo for another year,
>due to a ruling issued by the 2nd U.S. Circuit Court of Appeals Wednesday.
>
>In a 2 to 1 ruling, the 2nd Circuit sent the case to the New York Court of
>Appeals for the resolution of two critical state law questions. The appeal to
>the circuit court arose after a federal jury in Brooklyn had assessed more
>than $500,000 in damages against three gun makers in February 1999.
>
>Writing for the 2nd Circuit majority, Judge Richard J. Cardamone concluded
>that New York's highest court should be given the opportunity to first answer
>the question of whether the plaintiffs' negligent marketing theory is
>cognizable under New York law.
>
>The trial judge, Jack B. Weinstein, had allowed the families of seven crime
>victims to take their case against 25 gun makers to trial on the theory that
>the manufacturers had negligently flooded with firearms the southern states
>that have weak gun control laws. It was entirely foreseeable, the plaintiffs
>contended, that guns from the oversupplied southern markets would seep into
>the illegal black market and make their way to other states like New York,
>which have strict gun control statues, and be used in crimes.
>
>The 2nd Circuit in Hamilton v. Beretta U.S.A., 99-7753, also referred a
>second question to the New York Court of Appeals: whether a market share
>theory of liability could be used to apportion damages against the three gun
>makers whom the jury held responsible for damages.
>
>In February 1999, after a four-week trial, the Eastern District jury returned
>verdicts of $272,000 against Taurus International Manufacturing Inc.;
>$241,000 against Beretta U.S.A. Corp.; and $9,200 against American Arms Inc.
>
>Those awards were based upon findings that Taurus has 6.8 percent of the
>national handgun market; Beretta, 6.0 percent; and American Arms 0.2 percent.
>
>Courts in some instances have accepted a market share approach where it is
>difficult, if not impossible, to show which manufacturers' product caused the
>damage.
>
>The jury had cleared 10 of the 25 manufacturers of any liability. While it
>found that 15 defendants had negligently marketed their guns, it awarded
>damages against only three of the gun makers in one of the seven shootings
>alleged in the complaints.
>
>Even though the jury found that nine gun makers had been negligently
>responsible for two killings, it awarded damages in neither of those
>instances. Instead, it held the three defendants liable for their share of
>the damages to Stephen Fox, a Queens, N.Y., teenager who remains disabled
>with a bullet lodged in his brain.
>
>The jury set the total damages suffered by Fox at $3.5 million, but the
>damages assessed against the three gun makers were limited to their share of
>the national gun market.
>
>DISSENT'S VIEW
>
>Judge Jose A. Cabranes objected to the majority's referral of the case to New
>York's high court and suggested that they refuse to hear it.
>
>A case should be certified for resolution by a state's top court only when
>there is insufficient precedent for the 2nd Circuit to predict the outcome in
>the state court. In the gun case, Cabranes wrote, there was sufficient
>precedent to predict how the New York Court of Appeals would decide the
>issue. The referral, he concluded, "with its attendant expenses and delay, is
>inappropriate."
>
>But Cardamone, in the majority opinion, noted that the questions relating to
>the acceptance of the plaintiff's negligent marketing theory were
>"particularly thorny" and involved "a delicate balancing test," raising
>difficult moral, logical, and policy considerations. Eastern District Judge
>David G. Trager, sitting by designation, joined in the majority.
>
>BOOST FOR PLAINTIFFS
>
>One aspect of the 2nd Circuit's decision gave the plaintiffs a significant
>boost in refuting the manufacturers' claim that both the 2nd Circuit and the
>Appellate Division, First Department, had rejected a negligent marketing
>theory in a case arising from the slaying of six passengers on the Long
>Island Railroad in 1995.
>
>Judge Cardamone distinguished the plaintiffs' negligent marketing theory from
>a similar claim that the court rejected involving the Black Talon bullets
>that the Long Island Railroad gunman, Colin Ferguson, used to kill six
>commuters and wound 19 others.
>
>In the Long Island Railroad case, McCarthy v. Olin Corp., 119 F3d 148 (1997),
>the 2nd Circuit had rejected a negligent marketing theory predicated on the
>sale of hollow-point Black Talon bullets to the general public, as opposed to
>limiting sales to law enforcement agencies, Cardamone pointed out.
>
>In the case before Weinstein, Cabranes observed, the plaintiffs' were
>pursuing a different argument: that the gun makers were under a duty to "try
>to abate the illegal gun market." That contrasted sharply with the theory in
>the Long Island Railroad case, he added, in which it was being claimed that
>the maker of the hollow-point bullets was under a duty "to predict and
>prevent every single illegal gun transaction."
From: VTGUNS@aol.com <VTGUNS@aol.com>
To: VTGUNS@aol.com <VTGUNS@aol.com>
Date: Wednesday, August 23, 2000 7:14 PM
Subject: Good News Federal 2nd Circuit Court of Appeals
>Hello List:
>
>This is good news! The 2nd Circuit (which also included Vermont)
>has thrown a roadblock into the anti gun litigation. Judge Weinstein is
>notorious as a pro plaintiff judge who eagerly finds legal theory to support
>politically based negligence cases. This was the benchmark gun liability
>case - the first (and only that I am aware) where a jury found gun
>manufacturers
>"guilty" of "negligent distribution."
>
>You can bet that many major manufacturers of all sorts of products are playing
>very close attention to this and similiar cases. If guns are found liable for
>"negligent
>distribution" what about liquor companies, knife makers, drug companies, etc?
>
>I predict that the NY Court of Appeals will stiffle this case. It can cause a
>very
>bad precedent. Many non gun companies will be agitating behind the scenes in
>this case.
>
>
>Detour Delays Ruling on Gun Makers' Verdict
>Daniel Wise
>New York Law Journal
>
>August 17, 2000
>
> The first jury verdict in the nation against a gun maker for injuries caused
>by a properly functioning gun will likely remain in limbo for another year,
>due to a ruling issued by the 2nd U.S. Circuit Court of Appeals Wednesday.
>
>In a 2 to 1 ruling, the 2nd Circuit sent the case to the New York Court of
>Appeals for the resolution of two critical state law questions. The appeal to
>the circuit court arose after a federal jury in Brooklyn had assessed more
>than $500,000 in damages against three gun makers in February 1999.
>
>Writing for the 2nd Circuit majority, Judge Richard J. Cardamone concluded
>that New York's highest court should be given the opportunity to first answer
>the question of whether the plaintiffs' negligent marketing theory is
>cognizable under New York law.
>
>The trial judge, Jack B. Weinstein, had allowed the families of seven crime
>victims to take their case against 25 gun makers to trial on the theory that
>the manufacturers had negligently flooded with firearms the southern states
>that have weak gun control laws. It was entirely foreseeable, the plaintiffs
>contended, that guns from the oversupplied southern markets would seep into
>the illegal black market and make their way to other states like New York,
>which have strict gun control statues, and be used in crimes.
>
>The 2nd Circuit in Hamilton v. Beretta U.S.A., 99-7753, also referred a
>second question to the New York Court of Appeals: whether a market share
>theory of liability could be used to apportion damages against the three gun
>makers whom the jury held responsible for damages.
>
>In February 1999, after a four-week trial, the Eastern District jury returned
>verdicts of $272,000 against Taurus International Manufacturing Inc.;
>$241,000 against Beretta U.S.A. Corp.; and $9,200 against American Arms Inc.
>
>Those awards were based upon findings that Taurus has 6.8 percent of the
>national handgun market; Beretta, 6.0 percent; and American Arms 0.2 percent.
>
>Courts in some instances have accepted a market share approach where it is
>difficult, if not impossible, to show which manufacturers' product caused the
>damage.
>
>The jury had cleared 10 of the 25 manufacturers of any liability. While it
>found that 15 defendants had negligently marketed their guns, it awarded
>damages against only three of the gun makers in one of the seven shootings
>alleged in the complaints.
>
>Even though the jury found that nine gun makers had been negligently
>responsible for two killings, it awarded damages in neither of those
>instances. Instead, it held the three defendants liable for their share of
>the damages to Stephen Fox, a Queens, N.Y., teenager who remains disabled
>with a bullet lodged in his brain.
>
>The jury set the total damages suffered by Fox at $3.5 million, but the
>damages assessed against the three gun makers were limited to their share of
>the national gun market.
>
>DISSENT'S VIEW
>
>Judge Jose A. Cabranes objected to the majority's referral of the case to New
>York's high court and suggested that they refuse to hear it.
>
>A case should be certified for resolution by a state's top court only when
>there is insufficient precedent for the 2nd Circuit to predict the outcome in
>the state court. In the gun case, Cabranes wrote, there was sufficient
>precedent to predict how the New York Court of Appeals would decide the
>issue. The referral, he concluded, "with its attendant expenses and delay, is
>inappropriate."
>
>But Cardamone, in the majority opinion, noted that the questions relating to
>the acceptance of the plaintiff's negligent marketing theory were
>"particularly thorny" and involved "a delicate balancing test," raising
>difficult moral, logical, and policy considerations. Eastern District Judge
>David G. Trager, sitting by designation, joined in the majority.
>
>BOOST FOR PLAINTIFFS
>
>One aspect of the 2nd Circuit's decision gave the plaintiffs a significant
>boost in refuting the manufacturers' claim that both the 2nd Circuit and the
>Appellate Division, First Department, had rejected a negligent marketing
>theory in a case arising from the slaying of six passengers on the Long
>Island Railroad in 1995.
>
>Judge Cardamone distinguished the plaintiffs' negligent marketing theory from
>a similar claim that the court rejected involving the Black Talon bullets
>that the Long Island Railroad gunman, Colin Ferguson, used to kill six
>commuters and wound 19 others.
>
>In the Long Island Railroad case, McCarthy v. Olin Corp., 119 F3d 148 (1997),
>the 2nd Circuit had rejected a negligent marketing theory predicated on the
>sale of hollow-point Black Talon bullets to the general public, as opposed to
>limiting sales to law enforcement agencies, Cardamone pointed out.
>
>In the case before Weinstein, Cabranes observed, the plaintiffs' were
>pursuing a different argument: that the gun makers were under a duty to "try
>to abate the illegal gun market." That contrasted sharply with the theory in
>the Long Island Railroad case, he added, in which it was being claimed that
>the maker of the hollow-point bullets was under a duty "to predict and
>prevent every single illegal gun transaction."