As earlier discussed by Walter, a Manhattan appellate court has affirmed the dismissal of Attorney General Eliot Spitzer’s state lawsuit against gun manufacturers. Spitzer had sued under a theory of “public nuisance.” The opinion is now on-line and the court’s language is interesting:
[P]laintiff would have us summarily ignore: […]
2) the importance and fairness of considering such concepts as remoteness, duty, proximate cause and the significance of the indisputable intervention of unlawful and frequently violent acts of criminals — over whom defendants have absolutely no control — who actually, directly, and most often intentionally, cause the cited harm;
3) the significance and unfairness of holding defendants accountable even though their commercial activity is wholly lawful and currently heavily regulated, and that their products are non-defective; and
4) the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.
An identical federal suit filed by the NAACP is pending before Judge Jack Weinstein in Brooklyn. (Samuel Maull, “Appeals court affirms dismissal of state’s lawsuit against gun makers,” AP, June 24).
Weinstein is perhaps best known for his work on the Agent Orange class action settlement, which the U.S. Supreme Court recently allowed to be reopened when it split 4-4 in its review of a Second Circuit opinion holding that the settlement did not preclude veterans from seeking additional damages. There are obvious implications, since now class action defendants risk losing the benefits of finality in the Second Circuit. (Tony Mauro, “Vets Win Chance At Agent Orange Damages,” Legal Times, June 10).
(Full disclosure: My firm filed an amicus brief on behalf of the Product Liability Advisory Council in Dow Chemical v. Stephenson.)