act of a third party, an act that also causes an innocent party a
loss, the gains are arguably `unfair,' because the gainer is
getting more than its share. Even a mechanical application of
corrective justice requires that such gains be used to compensate
the victims."). The likelihood of harm and the high probability
that victims will be unable to recover from the actual shooters
further support a duty on the part of manufacturers.
Prescribing an obligation to market and distribute handguns
responsibly fulfills the exercise of the "court's responsibility
to define an orbit of duty that places controllable limits on
liability." Strauss v. Belle Realty Co., 65 N.Y.2d 399, 405,
482 N.E.2d 34, 38, 492 N.Y.S.2d 555, 559 (1985). In the instant
litigation, the jury deliberated and acted with great
discrimination. It found that only fifteen of the twenty-five
manufacturers sued had behaved negligently. The court must ignore
the post hoc statements of individual jurors describing their
deliberations, as both unreliable and impermissible under Rule
606(b) of the Federal Rules of Evidence. United States v.
Gigante, 53 F. Supp.2d 274 (E.D.N.Y. 1999).
As the evidence and this precise verdict demonstrate, marketing
and distribution practices among manufacturers differ
sufficiently to enable a jury to identify and exonerate those who
exercise due care. To the extent manufacturers choose to
structure their affairs in a way which, though technically legal,
exposes them to tort liability, they can spread the risk of loss
by raising prices to more accurately reflect the true costs of
negligently marketing and distributing handguns. Alternatively,
they can adopt non-negligent methods of distribution described by
the expert evidence as economically feasible.
Imposition of a duty to exercise care in the marketing and
distribution of handguns will maximize safety. As between a
negligent handgun manufacturer and an injured bystander, the
former must be regarded as the "cheapest cost avoider," — the
party upon whom imposition of liability will lead to the greatest
degree of safety and efficiency. See generally Guido Calabresi,
The Costs of Accidents: A Legal and Economic Analysis (1970).
Holding defendants liable when injuries result from their failure
to exercise due care is likely to encourage more prudent
manufacturing and distribution practices. This potential
deterrent effect is of particular importance, where, as here, the
legitimate market is saturated. See Tom Diaz, Unsafe at Any
Caliber, N.Y.L.J., May 13, 1999, at 3 ("The firearms industry is
fighting desperately against a saturated market and stagnant
sales."); cf. Paul M. Barrett & Vanessa O'Connell, How a Gun
Company Tries to Propel Itself Into the Computer Age: Colt's
`Safety' Chip Bonds a Firearm and its User: That Scares the
Industry, Wall St. J., May 12, 1999, at A1 ("Colt's pursuit of
the ambitious smart gun project . . . turned the company into a
pariah within its industry and made it the target of a boycott
last year that cost Colt's millions in sales."). The tort law can
properly impose a strong incentive on manufacturers to reduce the
risk of injury by marketing and distributing their products
In sum, the strong legal and policy arguments in favor of
liability and the fact that similar practical considerations have
motivated New York's highest court in the past to recognize the
responsibility of manufacturers for product-related injuries,
support the prediction that the New York Court of Appeals would
recognize a duty on the part of defendants to use due care in
marketing and distributing their inherently dangerous product.
A defendant is negligent when it breaches its duty of care by
engaging in conduct, posing an unreasonable risk of harm to
others. The primary factors to be taken into account in assessing
the reasonableness of a defendant's conduct are,
the foreseeable likelihood that it will result in harm, the
foreseeable severity of the harm that may ensue and the burden
that would be borne by the actor and others if the actor takes
precautions that eliminate or reduce the possibility of harm.
Restatement (Third) of Torts: General Principles § 4 (Discussion
Draft April 5, 1999); see also United States v. Carroll Towing
Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.) (risk posed is
unreasonable if the social utility of conduct creating it is
outweighed by the likelihood and degree of harm).
A defendant's conduct may pose an unreasonable risk of harm to
others when combined with the negligent or criminal acts of third
persons. See Restatement (Second) of Torts §§ 302A-B (1965);
Restatement (Third) of Torts: General Principles § 17 (Discussion
Draft April 5, 1999) ("The conduct of a defendant can lack
reasonable care insofar as it can foreseeably combine with or
bring about the improper conduct of . . . a third party.").
Failure to anticipate and guard against third party misconduct
constitutes negligence in a variety of contexts. See, e.g., Kush
v. City of Buffalo, 59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831
(1983) (Board of Education was negligent in leaving student
employees unsupervised in building and failing to secure
dangerous chemicals); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507,
519-20, 407 N.E.2d 451, 458, 429 N.Y.S.2d 606, 613-14 (1980)
(evidence of history of crimes in building sufficient to support
conclusion that defendants breached duty to anticipate risk of
criminal activity and take reasonable precautionary steps to
Where differing inferences may be drawn from the evidence of
negligence, the defendant's breach is a question of fact to be
determined by the jury. See Stepanian v. Rozanski, 195 A.D.2d 973,
974, 600 N.Y.S.2d 599, 600 (4th Dep't 1993) (citing Eddy v.
Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (4th Dep't
1980)); Restatement (Second) of Torts § 328(C) (1965); see also,
e.g., Rotz v. City of New York, 143 A.D.2d 301, 305,
532 N.Y.S.2d 245, 248 (1st Dep't 1988) (concert producer's negligence
in gathering together extremely large crowd to hear a free
outdoor concert and then failing to institute adequate crowd
control measures was question for jury); Stagl v. Delta
Airlines, Inc., 52 F.3d 463 (2d Cir. 1995) (airline's negligence
in failing to provide reasonably safe passenger baggage retrieval
system was a jury question). The highly fact-specific
determination of negligence is ideally suited to jury resolution.
As the New York Court of Appeals has explained, this is "not only
because of the idiosyncratic nature of most tort cases . . . but,
perhaps above all, because in the determination of issues
revolving about the reasonableness of conduct, the values
inherent in the jury system are rightfully believed an important
instrument in the adjudicative process. . . ." Havas v. Victory
Paper Stock Co., 402 N.E.2d 1136, 49 N.Y.2d 381, 388,
426 N.Y.S.2d 233, 237 (1980); see also W. Page Keeton et al.,
Prosser & Keeton on the Law of Torts § 37, at 237 (5th ed.
1984) ("Under our system of procedure, this question [of breach]
is to be determined in all doubtful cases by the jury, because
the public insists that its conduct be judged in part by the man
in the street rather than by lawyers, and the jury serves as a
shock-absorber to cushion the impact of the law.").
As the court of appeals for the Second Circuit has recently
recognized, New York courts have followed the general trend
rejecting judicially-imposed standards of conduct designed to
limit liability in favor of a larger role for juries. See
Liriano v. Hobart Corp., 170 F.3d 264, 268 (2d Cir. 1999). It
noted: "[t]he courts of New York have several times . . . ruled
that judges should be very wary of taking the issue of liability
away from juries, even in situations where the relevant dangers
might seem obvious, and especially when
the cases in question turn on particularized facts." Id.
A manufacturer's conduct must be assessed according to the
standard of a reasonably prudent entity in light of all the
circumstances. A manufacturer who "is one of a limited number of
parties that engage in an activity that poses distinctive and
significant dangers. . . . has a clear obligation to acquire
special knowledge and special skills that relate to that
dangerous activity." Restatement (Third) of Torts: General
Principles § 10 cmt. a (Discussion Draft April 5, 1999). This
specialized knowledge may be considered in appraising the
reasonableness of a manufacturer's behavior. See id. at § 10.
Technical compliance with all relevant laws and regulations is
not dispositive. See, e.g., Jemmott v. Rockwell Mfg. Co.,
216 A.D.2d 444, 444-45, 628 N.Y.S.2d 184, 185 (2d Dep't 1995);
Feiner v. Calvin Klein, Ltd. 157 A.D.2d 501, 549 N.Y.S.2d 692,
693 (1st Dep't 1990). The exercise of due care mandates
additional preventive measures where a reasonably prudent person
would have taken them. See Restatement (Second) of Torts §
288(C) (1965); Restatement (Third) of Torts: General Principles §
14(a) (Discussion Draft April 5, 1999).
The issue is whether, drawing all reasonable inferences in the
plaintiffs' favor, the evidence presented at trial was sufficient
to support the jury's conclusion that the three defendants found
liable for injuries to Mr. Fox (the Fox defendants) marketed or
distributed their handguns negligently. Proof of the sales
history of the specific gun used in the Fox shooting is not
required. Plaintiffs need only produce evidence from which a
fair-minded jury could conclude that the Fox defendants failed to
market and distribute their product — a .25 caliber handgun —
reasonably in light of all the circumstances. They have met that
The risks associated with easy access to handguns have already
been demonstrated. See Part IV.D.1.b, supra. The alarming
rate of death and injury from handgun violence was headline news
nationwide during the years leading up to the shootings and
should have been obvious to defendants. See, e.g., Tracy
Thompson, Gunplay Blights Childhood in D.C.: Plague of Shootings
Leaves Hundreds of Young Victims, Wash. Post, Sept. 14, 1992, at
A1; A Strong Stand Against Guns: Violence in America Has Created
a Health Emergency, Magazine Says, Kansas City Star, June 10,
1992, at A1; Kevin Diaz, Armed and Dangerous at 16: More Kids
Are Carrying, Using Firearms, Star Tribune (Minneapolis),
December 11, 1991, at A1; Handguns Used to Kill Thousands Each
Year, St. Petersburg Times, March 29, 1991, at 2A; Sari
Horowitz, Youth and Violence Increasingly Linked; Police Blame
Lure of Guns, Drugs for Recent Incidents, Wash. Post, Jan. 28,
1988, at A1. The jury could reasonably infer that defendants, as
informed members of the community, were aware of these killings
as well as of the illegal market for their product necessarily
implied by widespread handgun use by juveniles and felons. See
Restatement (Second) of Torts § 290 (1965) ("In general, the
actor is required to know everything with respect to the risk of
harm which is a matter of common knowledge in the community in
which his conduct occurs.").
There was ample evidence presented at trial to persuade a
rational jury of both the widespread movement of .25 caliber
handguns into the underground market from legitimate retail
sources and defendants' awareness of this situation. Plaintiffs'
experts testified extensively as to the ways in which new guns
make their way into the underground market. They testified to
"convenience trafficking" (movement of guns between states for
profit), "straw purchases" (purchases in which the buyer of the
gun is a stand-in for someone not legally entitled to buy one,
for example an underage buyer or a convicted felon), corrupt
practices by FFLs, and stolen guns. Tr. 403; 405-08; 734-35; 738.
With regard to stolen guns, Joseph J. Vince, until recently chief
of the Crime Gun Analysis Branch of the Bureau of Alcohol,
Tobacco and Firearms, testified that:
In the studies that we performed both with us and
with various academics in major universities in the
United States, we have found that the majority of
crime guns are not stolen firearms, crime guns being
illegally trafficked to criminals.
Mr. Vince, also testified that "[i]n the research that we have
done, we have not seen stolen firearms being employed by
criminals. The majority of the time we are seeing them getting
them from retail sources." Tr. 1044. This expert evidence
introduced by plaintiffs was admissible and highly probative.
See Fed.R.Evid. 401-403, 702, 703; Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238
On the issue of defendants' awareness of the large scale
diversion of handguns into the illegal market via retail sales,
both Mr. Vince and Steve Higgins, former head of ATF, testified
to ATF's efforts to educate firearms dealers about the problem of
illegal acquisition of guns by "straw purchasers." Tr. 1623-1625,
736-38. According to Mr. Higgins, ATF newsletters were sent on
several occasions to manufacturers and others describing the
problem and informing recipients of how to detect straw
A 1994 promotional pamphlet issued by the Sporting Arms and
Ammunition Manufacturers Institute ("SAAMI"), an industry trade
association to which the manufacturers of most of the handguns
produced in the United States belong, was in evidence. Tr. 916.
It was the subject of extensive oral testimony. Its contents
supported an inference of industry awareness of an illicit
handgun market traceable in significant part to retail sources
unsupervised and uncontrolled by their suppliers, the
manufacturers, and their agents, the distributors. The pamphlet,
entitled, "A Responsible Approach to Public Firearms Ownership
and Use" explicitly refers to "the illegal trade in firearms."
Tr. 933. It notes membership support for "measures designed to
keep firearms out of the hands of criminals and other individuals
who could not be considered as responsible firearms owners," Tr.
932, including "severe penalties for firearms dealers who
knowingly sell to unqualified individuals or who knowingly
participate in `straw man' transactions." Tr. 934.
The jury could also have credited the extensive documentary and
oral evidence presented with regard to the flow of guns —
particularly from the states of the southeast, where, experts
testified, it is relatively easy to purchase a gun, to the states
of the northeast, where it is relatively difficult to obtain one
— and the high proportion of New York crime guns traceable to
out-of-state sources. Mr. Vince testified to a pattern of gun
traffic, as revealed by a 1997 ATF report, from southeastern
"source" areas into the New York City "market" area:
[I]n New York, you have a lot of firearms that come
from these southeast areas simply because they are
abundant down there, they are more easily [sic] to
acquire, and they are cheaper. You can bring them to
New York City and make a profit. That is what this is
all about. That's what criminals are trying to do, is
make profits on this.
Plaintiffs' expert biostatistician, Dr. Howard Andrews, a
research scientist and professor at Columbia University's School
of Public Health, also testified at length on this topic. Based
on his analysis of the ATF trace database, he concluded that
between 1993 and 1996, approximately 43% of New York crime guns
came from the southeast, and that, all told, 85-90% of such guns
came from out of state. Tr. 1834-40.
He testified that this was consistent with studies dating back
Even at that time it was clear and very clearly
documented in random samples of recovered guns that a
very low percentage of guns used in crimes committed
in New York come from New York, that most of them
come from elsewhere. . . . [T]his history goes back a
long way, the history of this consistent finding.
Tr. 1851. The jury could reasonably have imputed to defendants,
as both members of the public and specialists in guns, knowledge
of such a well established pattern. The deposition testimony of
Robert Hass, a Smith & Wesson executive for eleven years, was
read into the trial record. He testified: "I would be hard put to
say when was the first time I heard [of the flow of guns from the
southeast to the northeast]. I read the — I read the newspapers
and I watch television. It's mentioned frequently." Tr. 2321-22.
The jury could reasonably have concluded that in considering
all the circumstances — industry knowledge of widespread
trafficking in new handguns, heavy movement of guns from "weak
law" to "strong law" states, and risks associated with criminals'
easy access to these dangerous instruments — defendants were
negligent in failing to take appropriate steps to reduce the risk
of their products' being sold to persons with a propensity to
misuse them. Steps recommended by witnesses included (1)
requiring distributors to sell only to stocking gun dealers,
i.e., retailers who stock guns for sale from legitimate retail
outlets, (2) prohibiting sales at gun shows, where widespread
unrecorded and unsupervised sales to nonresponsible persons were
said to take place, and (3) analyzing trace requests to locate
retailers who disproportionately serve as crime gun sources, and
cutting off distributors who do business with them.
Comprehensive testimony on this issue was offered through
plaintiffs' marketing expert, Dr. David Stewart, Chairman of the
Marketing Department at the University of Southern California.
Dr. Stewart testified to industry-wide initiatives by
manufacturers of products which, like handguns, pose a high risk
of harm through misuse or criminal activity. Joint
industry-initiated agreement on standards aimed at reducing
product-related risks are characteristic of makers of such
products as all terrain vehicles ("ATV's"), paints and coatings,
and chemicals, Dr. Stewart testified. For example, according to
Dr. Stewart, makers of ATV's voluntarily set age thresholds for
sales of certain of their products. Tr. 1285. The National Paint
and Coatings Association has promulgated detailed standards
regarding distribution of its products; retailers who sell spray
paint are required to keep this product locked up and to refrain
from selling it to minors, in order to avoid graffiti. Tr.
1285-86. Makers of fertilizers and herbicides restrict
distribution in order to ensure that these potentially highly
hazardous products are sold by qualified, well-trained personnel
who can instruct the purchaser as to their proper use. Tr.
Based on his analysis of these self-regulating industries and
of the marketing and distribution practices of the gun industry,
Dr. Stewart generated a list of steps handgun manufacturers could
feasibly take to reduce the risks associated with their products,
including franchising retail outlets, restricting distribution to
qualified retail stores, and termination of the distribution
agreements of those distributors who sell handguns irresponsibly.
Tr. 1296-1300. This series of measures was largely aimed at
ensuring greater control over retail sales by reducing "market
coverage," i.e. the number of distribution points close to the
consumer. Dr. Stewart stated that this was "a common way of
preventing leakage from one market into another such as [the]
legitimate market into the illegal market." Tr. 1443.
Dr. Stewart also characterized a prohibition of sales of
handguns at gun shows as
"a prudent prohibition that seems to recognize at some level
there is an illegal market and this is a way of reducing . . .
market coverage. . . ." Tr. 1309.
Stephen Sanetti, Vice President and General Counsel of Sturm
Ruger & Co., seemingly concurred. He testified that since 1985,
Sturm Ruger has permitted distributors to sell only to stocking
gun dealers. Strum Ruger follows this practice, Mr. Sanetti
testified, among other reasons "to promote safety, to make sure
the laws are complied with." Tr. 636-37. It is significant that
this company was not found negligent by the jury.
Lieutenant McCann, director of a joint New York Police
Department/ATF task force formed to study illegal firearms
trafficking, testified that stocking gun dealers tended not to be
involved in, or to facilitate, illegal activity. Tr. 419. Steven
Higgins testified that, during his tenure as director of ATF, he
was particularly concerned about FFLs who did not operate a
legitimate firearms business because they had a lesser stake in
compliance than did dealers who stood to lose their entire
business and capital along with their license in the event of any
wrongdoing. Tr. 743.
Mr. Hass, the former Smith & Wesson executive, portions of
whose deposition testimony were read into the trial record,
admitted under oath that, in his view, gun manufacturers do not
do as much as they could to reduce the risk of their products
falling into dangerous hands. Specifically, Mr. Hass testified
that manufacturers could feasibly rewrite their distribution
contracts to allow them to cut off retailers who make multiple
sales to single individuals in short periods of time or who
repeatedly have crime guns traced to them, each of which, Mr.
Hass testified, is
indication of trouble. They are certainly not
something that I think the industry wants to foster,
even though such behavior may be strictly in
compliance . . . with the laws in the states where
the retailer resides.
Tr. 2327. These retailers could be cut off, he noted, "[j]ust in
the same way a retailer would be cut off who broke price and
published ads and God knows we did that enough." Tr. 2330.
According to Mr. Hass, it would be possible for manufacturers to
analyze trace requests received from ATF to determine which of
their downstream partners repeatedly serve as crime gun outlets.
"The manufacturers," Mr. Hass testified, "could do more and their
hands aren't clean if they ship totally legally to distributors.
There's more that could be done." Tr. 2332.
The jury could well have credited the testimony of plaintiffs'
experts as well as that of Mr. Hass and Mr. Sanetti and concluded
that those manufacturers who marketed handguns to distributors
without attempting to reduce their availability to persons likely
to misuse them were negligent. There was clearly sufficient
evidence with regard to individual manufacturers' marketing and
distribution policies — in the form of distributor agreements,
catalogues, advertisements, retailer applications and oral and
deposition testimony of employees and officers — to enable the
jury to evaluate each defendant's conduct separately, as it was
instructed to do. For example, during deliberations, the jury
called for all distributor agreements that had been admitted into
evidence. It exonerated those manufacturers whose agreement
contained a term prohibiting sale of their products to FFLs
without a legitimate walk-in place of business, as suggested by
In sum, there was ample evidence presented at trial from which
the jury could have concluded that defendants were aware of the
risks associated with their products and of the movement of large
numbers of them from southeastern to northeastern states and from
the legitimate into the underground market and that, in light of
these circumstances, it was appropriate to require defendants to
take reasonable steps to market and distribute handguns
responsibly. These conclusions
would support the jury's finding of negligence.
i. Proximate Cause
The third element of a negligence claim under New York law is
"proximate cause." To satisfy this element, a plaintiff must
establish that defendant's negligence was a substantial
foreseeable factor in bringing about his or her injury. See,
e.g., Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520,
429 N.Y.S.2d 606, 614, 407 N.E.2d 451, 459 (1980); Derdiarian v.
Felix Contracting Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666,
670, 434 N.Y.S.2d 166, 170 (1980); Restatement (Second) of Torts
§ 431 (1965). As used in this memorandum and in the jury charge,
the term "proximate cause" includes both the concept of "actual,"
or "in-fact", causation and the requirement that a defendant's
liability be limited to injuries which foreseeably flow from its
conduct. See Prosser & Keeton § 30, at 165 ("legal" or
"proximate" cause includes notion of "in-fact" causation).
The issue of proximate cause is ordinarily decided by the
finder of fact, unless there is some basis for a determination by
the court that the causal connection between defendant's
negligence and plaintiff's injury should be deemed severed as a
matter of legal policy.
The policy issues bearing on the application of a proximate
cause cut-off for liability, as developed in the recent opinion
of this court in Blue Cross & Blue Shield of New Jersey, Inc. v.
Philip Morris, Inc., 36 F. Supp.2d 560 (E.D.N.Y. 1999), bear on
handguns as well as on tobacco. To paraphrase from that opinion:
[I]t is difficult to imagine a set of circumstances
which would militate more strongly in favor of a
finding of proximate cause . . . than the present
one. If the allegations are to be believed, the
defendants in this suit are responsible for [many
unnecessary deaths through their careless marketing
and distribution of handguns]
. . . . [T]he defendants' alleged misconduct
entails moral opprobrium of extraordinary
proportions. Society has an especially compelling
interest in deterring future harms of the type and
magnitude alleged [and proven in this case].
Id. at 584-85 (E.D.N.Y. 1999).
ii. Intervening Cause
Under New York law, an intervening intentional or criminal act
by a third party is not automatically deemed a supervening act
insulating the initial tortfeasor from liability. An intervening
act breaks the chain of causation only "if it is of such an
extraordinary nature or so attenuated from the defendants'
conduct that responsibility for the injury should not reasonably
be attributed to them." Gordon v. Eastern Ry. Supply, Inc.,
82 N.Y.2d 555, 562, 626 N.E.2d 912, 916, 606 N.Y.S.2d 127, 131
Where "the intervening act is a natural and foreseeable
consequence of a circumstance created by defendant, liability
will subsist." Kush v. City of Buffalo, 59 N.Y.2d 26, 33,
449 N.E.2d 725, 729, 462 N.Y.S.2d 831, 835 (1983); see also Nallan,
50 N.Y.2d at 520-21, 407 N.E.2d at 459, 429 N.Y.S.2d at 614-15
(1980) (intentional shooting of plaintiff in lobby of office
building with history of criminal activity was a not a
supervening cause exonerating building owner and manager from
liability but a significant foreseeable possibility); Rotz v.
City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245 (1st Dep't
1988) (intervening acts of third persons who initiated stampede
after Central Park concert did not insulate concert promoter from
liability for plaintiff's injuries). Cf. Robert L. Rabin,
Enabling Torts, 49 DePaul L.Rev. (1999) (forthcoming)
(observing progressive erosion of intervening act limitation on
proximate cause as exemplified in "key in the ignition," dram
shop and social host cases).
Failure to take reasonable steps to guard against a clearly
foreseeable criminal act is negligent. See, e.g., Kush,
59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831 (intervening acts of
student employees who stole chemicals from lab and stored them in
bushes on school property were the sort of risk which gave rise
to duty and therefore did not insulate the school from liability
to 8-year old boy injured when chemicals exploded as he played
with them); Derdiarian, 51 N.Y.2d 308, 414 N.E.2d 666,
434 N.Y.S.2d 166 (a construction company was not insulated from
liability by intervening acts of negligent driver who entered
work site, where risk of such an event was what rendered
company's failure to safeguard site negligent). As the New York
Court of Appeals has made clear, "[w]hen the intervening,
intentional act of another is itself the foreseeable harm that
shapes the duty imposed, the defendant who fails to guard against
such conduct will not be relieved of liability when that act
occurs." Kush, 59 N.Y.2d at 33, 449 N.E.2d at 729, 462 N.Y.S.2d
iii. Mass. Tort Causation
Plaintiffs' suit is comparable to one in a mass tort. It
analogizes illegal handguns to deadly pathogens. See Hamilton v.
Accu-Tek, 935 F. Supp. 1307, 1313 (E.D.N.Y. 1996). In mass toxic
tort cases, for example, determining whether the plaintiff has
established cause-in-fact ordinarily necessitates a two-fold
inquiry: "whether the epidemiological or other scientific
evidence establishes a causal link between [exposure] and
[disease], and whether plaintiff is within the class of persons
to which inferences from the general causation evidence should be
applied." In re Joint Eastern & Southern Dist. Asbestos Litig.,
52 F.3d 1124, 1131 (2d Cir. 1995) (citing In re Agent Orange
Product Liability Litig., 611 F. Supp. 1223, 1261-62 (E.D.N Y
1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied,
487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988)).
To satisfy their causation burden, toxic tort plaintiffs are
generally required to demonstrate both a greater than 50 percent
probability of causation and a specific causal link between their
injuries and exposure to defendant's product. Proof of the latter
element usually consists of medical testimony that no alternate
satisfactory explanation exists for the plaintiff's disease.
See Margaret A. Berger, Eliminating General Causation: Notes
Towards a New Theory of Justice and Toxic Torts, 97 Colum.
L.Rev. 2117, 2121-22 & n. 18 (1997).
Where circumstances have made it impossible for plaintiffs to
determine which one of a number of manufacturers made the
particular unit of the product which caused their injury, some
states have fashioned alternative theories of liability which
eliminate this identification requirement. See, e.g., Hymowitz
v. Eli Lilly & Co., 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941,
cert. denied, 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338
(1989) (market share liability); Martin v. Abbott Lab.,
102 Wn.2d 581, 689 P.2d 368 (1984) (market share alternate
liability); Collins v. Eli Lilly & Co., 116 Wis.2d 166,
342 N.W.2d 37 (1983) (risk-contribution liability). Under these
theories, plaintiffs prove causation by establishing by a
preponderance of the evidence that exposure to a particular
substance causes the disease in question, and that exposure to
this product — regardless of who may have manufactured the unit
involved — caused the plaintiff to develop the disease. The
burden then shifts to the defendant to disprove causation. See,
e.g., Hymowitz, 73 N.Y.2d at 512 n. 2, 539 N.E.2d at 1078, 541
N YS.2d at 950 (defendant can exculpate itself by showing it
never marketed DES for pregnancy purposes); Sindell v. Abbott
Lab., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, 937 (1980)
(defendant can exculpate itself by showing it could not have made
the particular item which caused the plaintiff's injuries).
Liability is then apportioned according to the degree of risk
posed by individual defendants, as measured by each one's share
of the relevant market. But see Collins, 342 N.W.2d at 49
(market share, if determinable, only a "relevant factor" to be
considered in allocating damages among defendants).
In the context of DES, in which these theories were developed,
there was such a strong statistical association between exposure
and disease that evidence of exposure was deemed sufficient to
establish a causal connection. See Berger, supra at 2121 & n.
16. Market share liability is, however, increasingly being
adopted in other areas, see Part IV.D.4.a.i infra, including
some in which plaintiffs' injuries may be less obviously linked
to defendants' product.
While the charge on burden of proof in the instant case was
requested by and favored the defendants, it could be argued that
in those toxic-like cases, where "cause-in-fact" is in some
doubt, some leeway on the jury's part to determine probability is
warranted. This flexibility on burden of proof is clearly
warranted as to damages. See, e.g., Blue Cross & Blue Shield of
New Jersey, 36 F. Supp.2d 560, 585 (E.D.N.Y. 1999). Arguably,
proof of negligence and proof that negligence caused damage to
some people, but not necessarily to the particular plaintiffs in
the case, would warrant allocating proportional shares of damages
among those who are liable defendants. See, e.g., David
Rosenberg, The Causal Connection in Mass. Exposure Cases: A
"Public Law" Vision of the Tort System, 97 Harv. L.Rev. 849
(1984) (proposing that recovery be proportional to excess disease
risk among those exposed rather than predicated upon
establishment of a greater than fifty percent probability of
causation). A relatively small amount of damages granted
individual plaintiffs in such cases would reflect a jury's
decision to view the law in this practical way. Whatever may be
the conceptual legal arguments in favor of such an approach in
the present case, plaintiffs met their burden of producing
evidence sufficient to support the preponderance standard charged
in the jury instructions and found by the verdict.
The jury concluded that negligent marketing or distribution
practices on the part of American Arms, Inc., Beretta U.S.A.
Corp., and Taurus International Manufacturing, Inc. proximately
caused Steven Fox's injuries and his mother's damages. Defendants
found liable in the Fox case argue (1) that the record does not
support the jury's findings of proximate cause, and (2) that the
issue of causation should in any event never have been submitted
to the jury because any causal connection between the plaintiffs'
injuries and negligent conduct on the part of any defendant was
broken by the intentional criminal conduct of the shooters.
Defendants' reliance on the doctrine of supervening causes is
misplaced. As already demonstrated, criminal misuse of handguns
by third parties was not only a reasonably foreseeable
consequence of defendants' negligent marketing and distribution
practices, it was the precise risk; failure to take reasonable
steps to guard against it is what made defendants' conduct
negligent. See Part IV.D.3.a.ii, supra.
Plaintiffs' proof was more than sufficient, with regard to both
general and specific causation, to justify sending the issue of
proximate cause to the jury. There was ample evidence presented
that could persuade a rational jury by a preponderance of the
evidence (1) that the proliferation of underground market
handguns in New York causes incidents like that in which
sixteen-year old Stephen Fox was shot and crippled by his
fifteen-year-old friend, Alfred Adkins, and (2) that Mr. Adkins'
easy access to the .25 caliber handgun he illegally possessed and
used in the shooting was proximately caused by negligent
marketing or distribution practices on the part of manufacturers
of .25 caliber handguns.
Because market share theory applies, see Part IV.D.4.b,
infra, Mr. Fox need not causally connect his shooting to the
negligence of a particular manufacturer of .25 caliber handguns.
A causal link between the shooting and negligent marketing and
distribution practices on the part of manufacturers of the type
of handgun used is sufficient.
Plaintiffs' evidence of general causation was presented through
their expert, Dr. Jeffrey Fagan, a criminologist with over twenty
years' experience in the area of interpersonal violence and its
etiology. Dr. Fagan, a Professor at Columbia University's School
of Public Health, lecturer at Columbia Law School, and director
of the Center for Violence Research and Prevention, testified at
length. He testified in detail concerning his research on both
the impact of guns on the outcome of violent incidents among New
York City youths and patterns of gun violence in different New
York City neighborhoods.
In one study, highly structured in-depth interviews were
conducted with over 400 New York males between the ages of
sixteen and twenty-four. The young men were asked to recreate
violent episodes from their own lives, some involving guns and
others not. The interviewers, individuals who themselves had once
been involved in street violence, were specially trained, Dr.
Fagan explained, to enhance their ability to gauge the
truthfulness of their subjects' responses. Analysis of the
interviews revealed a strong correlation between the presence of
guns and the violent resolution of disputes arising in a variety
of contexts, ranging from robberies and fights over drugs to
perceived personal slights. These results, Dr. Fagan declared,
were corroborated by extensive research dating back to the
1960's. Tr. 1476. "In events where guns were present," Dr. Fagan
the decisions that [the young men] made were very,
very different and outcomes of the events were far
more likely to involve if not lethal violence, then
serious injury violence, somebody got shot. . . .
When guns were not present, fights would end in
lesser used forms of violence or no violence at all.
Disputes over territory, status and identity, Dr. Fagan
testified, are an ordinary part of adolescent development. Tr.
What made the whole process into something that
spiraled out of control was the presence of guns and
the availability of guns and kids to be able to use
guns. If a fight developed, if somebody had a beef or
dispute with another kid, the beef could be settled
quickest and easiest with the least danger by using
guns to attack, and that's where we saw the
difference between gun fights and other fights where
guns weren't present.