Summary
In NAACP, extensive discovery and detailed expert testimony based upon ATF data and other material demonstrated that it could be concluded that the defendant gun companies had engaged in irresponsible marketing, distribution and sales practices and that they could, voluntarily and through easily implemented changes, keep thousands of handguns from diversion into criminal use in New York. Acusport was one of the defendants in that case.
Summary of this case from JOHNSON v. ARMSOpinion
99 CV 3999 (JEW); 99 CV 7037 (JEW)
March 31, 2003
Elisa Barnes, New York, NY, for Plaintiff National Association for the Advancement of Colored People (NAACP)
David R. Gross, Saiber Schlesinger Satz Goldstein, LLC, Newark, New Jersey, for Defendants AcuSport, Inc.; Alamo Leather Goods, Inc.; Bangers, LP; Bill Hick's Co.; Brazas Sporting Arms, Inc.; Camfour, Inc.; Chattanooga Shooting Supplies, Inc.; Davidson's, Inc.; Dixie Shooters' Supply, Inc.; Ellett Brothers, Inc.; Euclid Avenue Sales Co.; Hicks, Inc.; Interstate Arms Corp.; Kiesler's Police Supply, Inc.; Lew Horton Distributing Company, Inc.; Lipsey's, Inc.; MKS Supply Co.; Ron Shirk's Shooters Supply; RSR Management Corp.; RSR Group, Inc.; RSR Wholesale, Inc.; Southern Ohio Gun, Inc.; Sports South, Inc.; Valor Corporation; Walter Craig, Inc.; Williams Shooters Supply, Inc.; Zanders Sporting Goods, Inc.:
Christopher M. Chiafullo, Saiber Schlesinger Satz Goldstein, LLC, Newark, New Jersey, for Defendants AcuSport, Inc.; Alamo Leather Goods, Inc.; Bangers, LP; Bill Hick's Co.; Brazas Sporting Arms, Inc.; Camfour, Inc.; Chattanooga Shooting Supplies, Inc.; Davidson's, Inc.; Dixie Shooters' Supply, Inc.; Ellett Brothers, Inc.; Euclid Avenue Sales Co.; Hicks, Inc.; Interstate Arms Corp.; Kiesler's Police Supply, Inc.; Lew Horton Distributing Company, Inc.; Lipsey's, Inc.; MKS Supply Co.; Ron Shirk's Shooters Supply; RSR Management Corp.; RSR Group, Inc.; RSR Wholesale, Inc.; Southern Ohio Gun, Inc.; Sports South, Inc.; Valor Corporation; Walter Craig, Inc.; Williams Shooters Supply, Inc.; Zanders Sporting Goods, Inc.:
Timothy A. Bumann, Budd, Lamer, Gross, Rosenbaum, Greenberg Sade, Atlanta, GA, for Defendants Amadeo Rossi SA; Braztech International L.C.; Forjas Taurus SA; Heritage Manufacturing, Inc.; Taurus International Manufacturing;:
John F. Renzulli, Renzulli, Pisciotti Renzulli, LLP, New York, NY, for Defendants Arms Technology, Inc.; Beemiller, Inc. d/b/a Hi-Point Firearms; Bersa S.A.; Browning Arms Co.; Century International Arms, Inc.; Eagle Imports, Inc.; European American Armory Corp.; Glock G.m.b.H (Glock Ges.m.b.H.); Glock, Inc.; Haskell Co. (Haskell Manufacturing, Inc.); Import Sports, Inc.; Israel Military Industries (Israel Military Industries, Ltd.); K.B.I., Inc.; Kel-Tec CNC Industries, Inc.; Magnum Research, Inc.; Para-Ordnance, Inc.; Para-Ordnance Mfg. Inc.; SGS Imports Int'l Inc. (SGS Importers International, Inc.); Tanfoglio Fratelli S.r.L. (Fratelli Tanfoglio S.n.c.)
Leonard S. Rosenbaum, Renzulli, Pisciotti Renzulli, LLP, New York, NY, for Defendants Arms Technology, Inc.; Beemiller, Inc. d/b/a Hi-Point Firearms; Bersa S.A.; Browning Arms Co.; Century International Arms, Inc.; Eagle Imports, Inc.; European American Armory Corp.; Glock G.m.b.H (Glock Ges.m.b.H.); Glock, Inc.; Haskell Co. (Haskell Manufacturing, Inc.); Import Sports, Inc.; Israel Military Industries (Israel Military Industries, Ltd.); K.B.I., Inc.; Kel-Tec CNC Industries, Inc.; Magnum Research, Inc.; Para-Ordnance, Inc.; Para-Ordnance Mfg. Inc.; SGS Imports Int'l Inc. (SGS Importers International, Inc.); Tanfoglio Fratelli S.r.L. (Fratelli Tanfoglio S.n.c.);
Brian Preston Heermance, Morrison, Mahoney Miller, LLP, New York, NY, for defendants B.J. Jennings, Inc.; Bryco Arms, Inc.;
Lauren Lacey, Semmes, Bowen Semmes, Baltimore, MD, for defendants B.J. Jennings, Inc.; Bryco Arms, Inc.;
Robert E. Scott, Jr., Semmes, Bowen Semmes, Baltimore, MD, for defendants B.J. Jennings, Inc.; Bryco Arms, Inc.;
Michael C. Hewitt, Bruinsma Hewitt, Costa Mesa, CA for Defendants B.L. Jennings, Inc.; Bryco Arms, Inc.
Terry Moritz, Goldberg, Kohn, Bell, Black, Rosenbloom, Chicago, IL, for defendant Carl Walther GmbH
Roger A. Lewis, Goldberg, Kohn, Bell, Black, Rosenbloom Chicago, IL, for defendant Carl Walther GmbH
Thomas P. Battistoni, Balber, Pickard, Battistoni, Maldonado Van Der Tuin, P.C. New York, NY, for Defendant Carl Walther GmbH
Thomas Edward Healy, Pino Associates, White Plains, NY, for Defendants Ceska Zbrojovka, A.S.; CZ-USA, Inc.; Excel Industries a/k/a Accu-Tek
Lawrence G. Keane, Pino Associates, White Plains, NY, for Defendants Ceska Zbrojovka, A.S.; CZ-USA, Inc.; Excel Industries a/k/a Accu-Tek
Timothy G. Atwood, Shelton, CT, for Defendants Charco 2000, Inc.; International Armament Corp. d/b/a Interarms; L.W. Seecamp Company, Inc.; Uberti (U.S.A.), Inc.
Thomas E. Fennell, Dallas, TX, for Defendant Colt's Manufacturing Company, Inc.
Michael L. Rice, Dallas, TX, for Defendant Colt's Manufacturing Company, Inc.
Thomas Edward Healy, Pino Associates White Plains, NY, for Defendant Colt's Manufacturing Company, Inc.
Lawrence G. Keane, Pino Associates White Plains, NY, for Defendant Colt's Manufacturing Company, Inc.
Lawrence S. Greenwald, Gordon, Feinblatt, Rothman, Hoffberger Hollander, LLC, Baltimore, Maryland, for Defendant Fabbrica d'Armi Pietro Beretta S.p.A.
Catherine A. Bledsoe, Gordon, Feinblatt, Rothman, Hoffberger Hollander, LLC, Baltimore, Maryland, for Defendant Fabbrica d'Armi Pietro Beretta S.p.A.
David G. Tobias, Salviano Tobias, P.C. New York, NY, for Defendants FaberBros., Inc.; Riley's, Inc.
Richard J. Leamy, Jr., Wiedner McAuliffe, Ltd., Chicago, IL, for Defendants Faber Bros., Inc.; Riley's, Inc.
Robert L. Joyce, Wilson, Elser, Moskowitz, Edelman Dicker, LLP New York, NY, for Defendants Hammerli Ltd., a.k.a. Hammerli GmbH; Sigarms Inc.; SIG/Sauer
Frederick B. Polak, Post, Polak, Goodsell McNeill, Roseland, NJ, for Defendant Navy Arms Company, Inc.
Bradley T. Beckman, Beckman and Associates, Philadelphia, PA, for Defendant North American Arms
Michael J. Zomcik, Tarics Carrington, PC, Houston, TX, for Defendant Phoenix Arms, Inc.
Michael Branisa, Tarics Carrington, PC, Houston, TX, for Defendant Phoenix Arms, Inc.
Gary R. Long, Shook, Hardy Bacon LLP, Kansas City, MO, for Defendant Smith Wesson Corp.
Jeffrey S. Nelson, Shook, Hardy Bacon LLP, Kansas City, MO, for Defendant Smith Wesson Corp.
Alan Mansfield, Greenberg Traurig, New York, NY, for Defendant Smith Wesson Corp.
Joel M. Cohen, Greenberg Traurig, New York, NY, for Defendant Smith Wesson Corp.
James P. Dorr, Wildman, Harrold, Alien Dixon, Chicago, IL, for Defendant Sturm, Ruger Co., Inc.
Peter B. Pope, Eliot Spitzer, New York, NY, for Observer Attorney General of the State of New York
Hilary Weisman, Eliot Spitzer, New York, NY, for Observer Attorney General of the State of New York
Eric Proshansky, Michael Cardozo, Corporation Counsel, New York, NY, for Observer Corporation Counsel of the City of New York
F. Franklin Amanat, Brooklyn, NY, for Observer Attorney General of the United States
Vincent Lipari, Brooklyn, NY, for Observer Attorney General of the United States
ORDER
In limine motions were heard on Friday, March 28, 2003. This order is issued to memorialize the decisions made orally on the record at that hearing.
I. Bryco Arms, Inc. and B.L. Jennings, Inc.
Bryco Arms, Inc. and B.L. Jennings, Inc.'s motion to preclude documents relating to their corporate and financial status, specifically plaintiff's exhibits numbered 119, 128-33, 165, 166-71, is granted.
II. Defendants' General Motions In Limine
1. Defendants' motion to preclude design-related testimony and derogatory references to defendants' products is granted. Testimony about flaws in defendants' products, or the use of or failure to use various safety devices will not be allowed. Testimony about design choices made by defendants that make firearms suitable or not suitable for particular purposes, or that allegedly result in guns that are more likely to be sold on the illegal market or used in crime, is relevant and will be allowed. Terms such as "pocket rocket" or "Saturday Night Special" are descriptive, not derogatory.
2. Defendants' motion to preclude reference to defense counsel or their firms as witnesses to or alleged participants in industry events in connection with any events related to this litigation is granted in part. Plaintiff may not refer to any attorney or firm by name. If in a specific instance plaintiff wishes to proffer such evidence using the generic term "attorneys," it may so move and the court will consider each situation individually in the time set aside, each day at 8:30 a.m. before the start of trial, for motions. As already ruled by this court, any counsel who was present at industry meetings with Robert Ricker will not be permitted to cross examine him.
3. Defendants' motion to preclude reference to allegations of employment discrimination made against witnesses is granted. Evidence of inconsistencies between a witness's testimony and prior written or published statements of that witness is permissible.
4. Defendants' motion to preclude reference to the national scope of the National Association for the Advancement of Colored People's ("NAACP") work, its historical achievements, and alleged injury to it occurring outside of New York is granted with limited exceptions. Plaintiff may state in general terms that the NAACP is a national organization, its general purposes, and how it is affected by defendants' merchandising procedures.
5. Defendants' motion to preclude testimony concerning constitutionally protected lobbying efforts by one or more defendants is granted.
6. Defendants' motion to bar the testimony of Gladys Gerena and Mona Lisa Harris is granted. This is primarily a statistical case; there is no need for testimony concerning specific acts of gun violence.
7. Defendants' motion to preclude reference to the other clients of defendants' law firms, in particular the asbestos and tobacco industries, is granted. Plaintiff is not precluded from questioning experts with respect to prior litigation testimony, but it is not necessary to inquire more specifically than whether the defendant previously worked for a law firm doing work for an industry.
8. This court has already ruled that the parties are precluded from eliciting legal conclusions from experts. Experts should testify just as to the facts; they may not state that particular activity was or was not a public nuisance or was or was not negligent. If any party wishes to offer testimony that is characterized as a legal conclusion, it may offer that testimony on the morning before it is to be given and the court will decide whether it is appropriate on an instance by instance basis.
9. Defendants' motion to preclude all evidence of highly publicized shootings is granted. Specific shootings are not to be referenced.
10. Defendants' motion to preclude references to dealers as company specific dealers is denied. Such evidence is relevant to showing industry practice. Plaintiff may prove, specifically or generally, that dealers are owned or controlled by manufacturers or distributors.
11. Defendants' motion to preclude evidence and questioning regarding alternative causation theories is denied. Industry-wide practice, whether parallel or concerted, is a part of this case, and plaintiff may present evidence concerning it. The charge to be given to the jury at the end of the evidence, and whether or not plaintiff ultimately has proven its case as to all or some defendants, are separate matters. Defendants may raise this issue again at an appropriate point later in the proceedings.
12. Defendants' motion to preclude expert opinions, analysis and reliance materials not fairly disclosed prior to March 28, 2003 is granted in part and denied in part. As a general rule, experts' opinions are those in the reports; materials not fairly disclosed may not be relied upon. Experts must, however, be treated with the respect due to them. There may be instances in which errors or oversights can be corrected. While it is desirable to keep these instances to a minimum, corrections will be permitted to better allow this court and the advisory jury to get to the merits of the case. These matters will be ruled on as they arise. Parties must give notice and full disclosure to the opposing side. All reliance material must be turned over; nothing is to be covered up. This ruling also resolves plaintiff's motion asking that experts be bound by their reports,
13. This court has already ruled that reference to the observers invited by the court is precluded.
14. Defendants' first supplemental motion to preclude reference to "indicted" dealers is granted. There is to be no reference to the fact that particular dealers were indicted and no description of any dealer activity as "criminal," If plaintiff wishes to present videotapes of straw purchases taking place at particular dealers or other evidence of defendants' response or lack of response to conduct of a dealer or dealers, that evidence must be presented first to the court during the time reserved each day for motions before the start of trial. The court will rule on these matters as they arise.
III. Plaintiffs General Motions In Limine
1. Plaintiffs motion to exclude the incident reports from Boston and various California municipalities is granted in part and denied in part. The approximately 300 reports randomly sampled by Dr. Wecker may be used provided plaintiff is notified in advance of the reports he will use. Defendants' expert Mr. Bridgeman, a retired San Diego police officer, may summarize and analyze the contents of the incident reports he has reviewed. He may not offer his opinion as to whether a crime was or was not committed. Plaintiff remains free to make a Daubert motion with respect to Mr. Bridgeman's report and testimony. Counsel for Taurus may use nineteen of these incident reports on cross examination of plaintiffs expert Lucy Alien, provided that plaintiff is notified in advance of the reports that will be used. Counsel for Sigarms may use twenty and Counsel for North American Arms may use ten in the same manner. This ruling does not apply to all defendants, but only to the defendants identified above who have so moved. Plaintiff must have notice of the specific reports that will be used. The use of hundreds of reports of only tangential relevance will unduly and unreasonably prolong this trial. Any use of these individual incident reports on direct examination of one or more of defendants9 witnesses must first be raised before the court in the time set aside before the trial each day for motions.
2. Plaintiffs motion to preclude reference to the Second Amendment and analogous state constitutional provisions is granted in part. It maybe important, however, for the jury to understand that different rules and policies toward firearms regulation exist among the states. Decision on this aspect of plaintiff s motion is reserved. If parties wish to present evidence concerning differences in relevant state constitutional and legislative provisions, they are requested to brief the matter.
3. Plaintiffs motion to allow the admission of Professor Jeffrey Pagan's second report in plaintiffs direct case is denied. This court has already ruled that this report may be used by plaintiff only on rebuttal. Defendants have been proceeding in reliance on that decision,
4. Plaintiffs motion for leave to file a default judgment against International Armament Corp. d/b/a/ Interarms, L.W. Seecamp Co., Uberti USA, Uberti Aldo, Charco 2000, and other defendants to be identified who have failed to answer or prosecute this action is denied. No default judgments will be permitted at this time. If the result of this trial is a remedy for the plaintiff against other defendants, the same remedy will be imposed against the defaulters. This action by its nature is being prosecuted in the public interest. To now enjoin only defaulting defendants would distort the national market and serve little purpose. Defendants who have failed to participate in discovery may not produce new evidence or witnesses at trial.
5. Plaintiffs motion requesting a direction from the court binding experts by their reports has already been resolved. See Sec. 11.12, supra.
6. Plaintiffs motion to preclude the trial testimony of party representatives not proffered as Rule of Civil Procedure 30(b)(6) witnesses is denied. Each defendant may call one corporate representative not produced and deposed as a 30(b)(6) witness. Mr. Kweisi Mfume, the head of the National Association for the Advancement of Colored People, may testify briefly. Plaintiff shall provide a written proffer of Mr. Mfume's testimony to defendants by 8:00 a.m., Monday, March 31, 2003. Defendants may submit a brief in response.
IV. Other Matters
Objections to specific exhibits will be dealt with if necessary each morning before trial begins. Parties will provide notice of their objections in advance, and are urged to raise only serious objections. Bates numbers should be provided for exhibits on final document lists whenever possible.
Many witnesses will be presented through recorded deposition testimony. Whenever possible the parties' designations and counter — designations of that recorded testimony should be presented at the same time and on the same equipment.
The question of reducing the burden on smaller defendants may be taken up before the court on Friday, April 4th at 8:30