Gun Cases Use Tobacco Know-How

TWO LAWSUITS recently filed by the cities of Chicago and New Orleans against gun manufacturers are a direct offspring of the legal battle against the tobacco industry. And other industries fear they may be the next target.

Set against the backdrop of the recent $206 billion tobacco settlement, gun control advocates see a similar opportunity to hold gun manufacturers financially accountable for the harm their products do. Meanwhile, gun manufacturers, like cigarette makers before them, warn of the dangers posed by governments targeting whole industries, goaded on by well-financed, entrepreneurial plaintiffs' lawyers. Defense lawyers are asking, "After us, who's next?"

The New Orleans suit, filed in state court Oct. 30, seeks millions of dollars in damages for money the city has spent on police, health care, emergency services and other costs resulting from violence caused by unsafe handguns. The defendants include industry mainstays such as Smith & Wesson Corp., Sturm, Ruger & Co. and Colt's Manufacturing Co. Inc., along with 12 other gun manufacturers, three trade associations and a handful of local gun sellers.

The complaint claims that manufacturers should have designed their guns with new technology that would make it impossible for anyone other than the owner to release the safety.

Richard Feldman, the executive director of the American Shooting Sports Council, a trade association that speaks for the firearms industry on legislative, legal and political issues, says that this type of technology is not yet sufficiently developed to incorporate in handgun design. He believes that the real aim of the gun lawsuits is not to recover costs, but to drive manufacturers out of business.

Little wonder. The team of 16 private plaintiffs' law firms representing New Orleans is enough to make any defendant nervous. It is headed up by Wendell H. Gauthier, of Metairie, La.'s Gauthier, Downing, LaBarre, Beiser & Dean, an architect of the legal assault on tobacco and chairman of the Castano Plaintiffs Committee. The Castano group is a collection of about 60 plaintiffs' firms nationwide that coordinates class actions against the tobacco industry and that recently turned its sights on handguns.

Other Castano lawyers have agreed to join the fight, and Mr. Gauthier expects about 90 percent of them to sign on eventually. They have already offered their services to cities across the country.

If the Castano group extracts a settlement from gun makers in the New Orleans case, they will get 20 percent under a contingent-fee contract, says May- or Marc H. Morial--and 30 percent if they win at trial. Asked about the decision to hire the Castano lawyers, Mayor Morial says, "You want lawyers who can take on giants. This is not litigation for the faint of heart."

Chicago has a different approach.

"It is very important to us that this case be driven by the public policy issues," says Lawrence Rosenthal, the deputy corporation counsel who heads a team of six city and county lawyers working on Chicago's case. Without referring to the Castano group or any other lawyers in particular, Mr. Rosenthal says, "We didn't want someone who would be jacking up the highest damages for their contingent fee." Chicago's Mayer, Brown & Platt will provide legal work pro bono.

Chicago's legal theory is also different. The city's suit claims that gun makers oversold guns to dealers in nearby suburbs, knowing they would be used in Chicago, where laws make it virtually impossible to possess a handgun legally. The suit is the result of a police investigation in which undercover officers posing as criminals bought 171 guns.

Lawyers from both cities hope to team up with mayors across the country. They plan to address the U.S. Conference of Mayors Dec. 10. Cities said to be considering suits include Philadelphia, Los Angeles, San Francisco, New York, Miami and St. Louis. Mayor Morial says that he has been contacted by about 30 interested municipalities.

As in the tobacco litigation, government plaintiffs may avoid some of the problems that plague lawsuits by individuals. Defendants in gun cases cannot usually claim that the victim knowingly assumed the risk of injury--a potent defense argument in tobacco cases--but gun makers often successfully blame the person who shot the plaintiff or who negligently left a gun unsecured.

It is an argument that defense lawyers say was successful as recently as Nov. 16, when an Oakland jury found for the defense in a case involving the accidental shooting of a high school freshman. Dix v. Beretta U.S.A., 750681-9 (Cal. Super. Ct., Alameda Co.). As in the tobacco cases, however, the plaintiffs in the cities' gun cases will argue that the government has no share of the blame and should be reimbursed for its costs.

There are also differences. No one believes that the gun makers are as wealthy, as organized or as politically sophisticated as the tobacco industry. And several attorneys involved in the gun cases say that cities, rather than states, bear the brunt of handgun violence and so are likely to continue leading the fight. Gun lawsuits may also be politically controversial in states with a mix of urban and rural voters, making it less likely that states will get involved on the scale of the tobacco litigation.

The Castano committee takes its name from a 1994 class action filed in New Orleans on behalf of nicotine-addicted smokers. Split into many statewide class actions after the original case was thrown out by the 5th U.S. Circuit Court of Appeals, the Castano litigation has been hampered by a series of appellate rulings in recent years that have narrowed the scope of class actions.

"Class actions aren't what they used to be," laments John P. Coale, of Washington, D.C.'s Coale Cooley Lietz McInerny & Broadus. Mr. Coale has acted as a spokesman for the Castano group and is one of the plaintiffs' lawyers in the New Orleans gun case.

The Castano group is an exclusive one: Each firm had to pony up $100,000 in front money to help cover the cost of putting the tobacco case together. The gun cases will also require a cover charge, although the amount has not yet been determined, says Mr. Coale.

Throughout the tobacco litigation, defense groups have predicted no end to the industries that could be sued because they make products known to be harmful to some people.

In theory, at least, the idea may not be so farfetched. Carl T. Bogus, a professor at Roger Williams University School of Law, in Bristol, R.I., says that products liability law is headed toward the recognition of "generic liability," or liability for entire product categories, a view that is hotly contested. But he believes that in practice, juries will stop short of imposing liability for products that are only dangerous if used without restraint or caution.

"We're not going to have a firestorm of juries attaching liability to McDonald's hamburgers or Baskin-Robbins ice cream," he says.

One industry often mentioned as a possible target of plaintiffs' lawyers is alcohol manufacturers. But so far, the industry has not seen any serious legal assault, and Mr. Coale says that the Castano group has not seriously considered taking it on. "We're not going after alcohol and hamburgers," says Mr. Coale. "We like 'em too much."