No precedent needed to be established without special protection. The gun companies stood on their own two feet and protected themselves without special government protection through 2005 – why did they suddenly need special protection then? Why did they suddenly need to be protected by the government such that the rights of the people to sue are restricted?
Why do you assume every lawsuit would have been decided in favor of the plaintiffs?
It sounds like they needed special protection for special circumstances. And they had lost some lawsuits, because juries often ignore science and common sense.
Why? Maybe some of the lawsuits had merit. Why should there be a blanket ban on the people’s right to sue in these cases?
“Should have known their product would have been used in criminal activity” is pretty darn broad. It’s a bit like saying that if you walk a block you should have known you’d step on something living.
So what? Bad and frivolous lawsuits will get thrown out. In some cases such claims might actually have legal merit, if the plaintiffs have a preponderance of evidence.
Again, why are gun companies such special snowflakes that they can’t stand on their own two feet like other companies?
First of all, you are wrong on the facts. There isn’t a blanket ban on people’s right to sue. From the wikiarticle you linked:
What exactly do you think people should be able to sue for that this act prohibits? What tort, or claim of damage do you think should be available that is prohibited under the PLCAA?
So you ask, why was this law necessary? Because in its wisdom, Congress determined that gun manufacturers shouldn’t be held liable for lawful commerce. The rise of strategic litigation in an effort to harm gun manufacturers prompted the law. This is explained in post #3903. You stated in the post immediately prior that you would be fine with the plaintiffs paying the costs if their claim is frivolous, but that’s a higher standard than “loser pays”. The fact that a claim is lost does not imply that it was frivolous. Would you support “loser pays” as well?
As **adaher **mentions, there is precedent for this type of protection. But more broadly, the concept of vexatious litigation would apply. At some point, suing gun manufacturers for engaging in 100% legal activity was determined sufficient to grant them protection from suits that sought to burden them. This of course didn’t stop Brady from applying novel tactics to get around the PLCAA. The result was not good for Brady and they made the mistake of engaging their strategy in a state that did have a “loser pay” rule.
Feel free to start a thread in GD if you’d like to continue.
This doesn’t conflict with what I said (I said “in these cases”). There is a blanket ban on suing gun manufacturers (and dealers) “for negligence on the grounds that they should have foreseen that their products would be diverted to criminal use”, which is what I meant by “in these cases”.
All of them. Just as people are free to sue other manufacturers for these reasons, people should be free to sue gun manufacturers for these reasons. Being free to sue doesn’t mean free to win. Good lawsuits with good evidence will win, bad lawsuits will not.
Gun manufacturers shouldn’t get special unique protection.
I’m open to “loser pays”. I don’t feel the need to start a thread in GD since this fits within the discussion started by Clothahump, as well as my point that unique government legal protection for a special interest sounds like an old-fashioned big-government liberal idea.
Most companies can be sued for “100% legal activity”, and most such lawsuits probably fail. Sometimes, though, activities that are otherwise legal may be determined by a court that the actor is civilly liable for some damage. If this is sometimes appropriate for other companies, it follows that it may sometimes apply for gun companies. I don’t believe gun manufacturers require special protection. They stood up on their own for all of the 20th century, despite active gun-control groups with lots of money and lots of lawyers. This just seems like special government protection for a special interest, to make life easier (and richer) for gun companies.
If you mean “loser pays” in general, then no, it’s not universal. In fact, it’s a huge outlier. The general rule in American civil litigation is that the loser pays the opposing party’s costs, but not fees. I thought you were talking about frivolous claims, in which the loser does pay (every state’s rules of civil procedure allow the imposition of sanctions for frivolous claims, which generally means the opposing party’s attorney fees).
I’m not sure why you think the loser should pay the winner’s fees in every case. That is almost invariably reserved for public interest and civil rights litigation.
Gun manufacturers already enjoy virtually unique legal protection under the PLCAA. Why they should be entitled to more is not clear to me.
I can sue Dow for criminal misuse of their chemicals. I can sue Ginsu for criminal misuse of their kitchen knives. What makes gun manufacturers so special?
You could sue Ginsu if someone stabbed you with a Ginsu knife, but no judge would allow the case and no jury would find for the plaintiffs, because the end result of holding knife sellers responsible for criminal use of their knives is that there would be no knives for sale, which is an undesirable result for everyone, whereas banning gun sales by backdoor legal means is a desirable result to some judges and juries.
I don’t buy that this would put them out of business. It didn’t in the 20th century.
If killing people were the intended primary purpose of Ginsu knives, you’d have a point, but, as it isn’t, you don’t.
Sadly, bad and frivolous lawsuits don’t always get thrown out. Just ask MacDonald’s or Honda. And even when they are, they still cost the defendants money, which isn’t always reimbursed.
In addition, let’s ask the question another way and see if the premise makes sense. Person A kills person B. But instead of shooting him, he beats him to death with a hammer. Or stabs him with a knife. Should the hammer manufacturer be sued, or the knife manufacturer? The idea of suing the maker of something because it was used in a crime is ridiculous. Hell, how about we sue god if someone gets beaten to death with a rock?
And yet McDonald’s and Honda survive and thrive. The gun companies can do so without special government protection too.
Given the ratio of the total number of guns to the number of guns that have killed people, if that’s their primary purpose, they’re not very good at it.
Liability is a question of law. So regardless of the views of any rogue judge or jury, those decisions can be remedied on appeal.
Really? What was frivolous about the McDonald’s lawsuit, exactly?
True. But there is a cost. It was determined that the cost of defending these nuisance type claims exceeded any potential tort or damage that a firearm manufacturer could conceivably be liable for. And as a matter of law, Congress passed and the President signed the PLCAA which clarified that lawful commerce was not litigatable.
I’m with you on the McDonald’s hot coffee lawsuit. That one is probably the most incorrectly mentioned frivolous lawsuit in memory.
I’m not exactly sure how I feel about loser pays for every case. I think there are pros and cons. What I do think is that merchants shouldn’t be able to be put out of business by nuisance lawsuits. Do you think merchants should be able to be put out of business in this way? I’m not sure the best way to execute that idea, but I have zero problem with the PLCAA in its goal to mitigate nuisance claims.
Can you give an example of how you could sue Ginsu and what your claim of damage would be?
Let’s explore this idea then. Do you think a company can withstand a hundred thousand lawsuits? The “Vaccine Court” was established because health officials feared the loss of civil liability claims would force manufacturers of vaccines to stop manufacturing and in turn threaten herd immunity. The science was clear that there was no connection between the vaccines and the bad outcomes, but companies were still settling and juries were still awarding damages. Your claim that bad lawsuits will not win is refuted.
Of course, this example is not directly on point, since civil suits are still allowed after the first go through the vaccine court, and there is a tax on vaccines to pay for awards in the vaccine court. But the idea that bad lawsuits will not win is just not true. With the volume of people who are opposed ideologically to firearms, it would not be surprising that with enough volume of claims, firearm manufacturers would be hard pressed to continue their business. And that’s just the large manufactures - smaller ones would be right out.
In post 3967 you continue to be vague about what damages you are referring to. When I ask about what claim of damage, you say “all of them”, or “some damage”. At the top of your post you do say that there is a ban for suing “for negligence on the grounds that they should have foreseen that their products would be diverted to criminal use” and you’re right. Because foreseeing that their products would be diverted for criminal use is not negligence, just as foreseeing that any product would be diverted for criminal use is not negligence. The only way I could see that claim have non-zero merit is if the product had no other use but criminal. Can you think of another scenario…or do you think that the only use is criminal?
And your idea that gun manufacturers are unique is not true, as demonstrated by the vaccine example. But in addition to that, what comes to mind is Google (Youtube). When Google’s defense won against the lawsuit brought by Viacom, it was held that internet companies, even if they know they are hosting infringing material, are immune from copyright liability if they promptly remove works at a rights-holder’s request. But Google is huge. Think of another company that did something similar, Veoh. Veoh also did video sharing, but was much smaller. Here is a history of lawsuits against Veoh, all of which they prevailed, at great legal cost:
Google won their defense in June of 2010.
But in the case of vaccine manufacture - lawsuits did threaten the supply of vaccines. I accept you don’t think a waterfall of lawsuits would put gun manufacturers out of business. I wouldn’t be so sanguine. Although, I think if there was loser pays provision then I think the support for the PLCAA would be reduced.
Probably not, but then I don’t believe there would necessarily be 100,000 lawsuits against the gun companies.
That sounds like a pretty solid reason to legislate special protection for vaccine companies. Perhaps I am changing my position that no company or industry should ever be protected by special government action against certain types of lawsuits.
But is there some comparable argument to the importance of herd immunity to protect gun companies? I’m not aware of one.
As far as bad lawsuits winning – can’t appeals courts overturn bad verdicts in civil trials? If not, they should be able to do so. That would provide protection against the possibility of bad lawsuits winning.
I can think of cases – let’s say a gun dealer knows that someone coming into the store to buy a gun has committed crimes, though he hasn’t been caught. Let’s say he’s heard him joke about killing his wife next time she complains. If he kills his wife, from my understanding the PLCAA would protect the dealer from a wrongful death lawsuit from the victim’s family. I’m not sure if such a lawsuit would win, but isn’t it possible that such a lawsuit might have merit? Shouldn’t the family have the right to sue in such a scenario?
Such scenarios could apply to manufacturers (with some thought) as well – suppose, for some reason, some model of firearm becomes extremely popular with criminals for drive-by-shootings (perhaps because of certain specs that make it particularly effective for this). Suppose that the company execs are aware of this and may even have been sending memos that are subtly strategizing about how to capitalize and profit on this market. Shouldn’t a victim’s family at least have the chance to prove in court that the company legitimately “should have foreseen” the criminal use? Not a guaranteed win, but might this actually be a lawsuit with merit? It seems like it is to me, and IANAL but I think the PLCAA protects the gun companies against that kind of lawsuit as well.
If, due to some legal specifics, these particular scenarios don’t apply to the PLCAA, then would you agree that it’s at least possible that the PLCAA might be protecting gun companies from some lawsuits that might possibly have merit?
You’re probably thinking about the McDonald’s hot coffee lawsuit, which has been cited as a well-known case of a frivolous suit but the real story is hardly unfair to McDonalds.
McD’s keep their coffee at undrinkable temps which would cause 3rd degree burns in 2-7 seconds. Second, McD’s own internal audits showed that their coffee temps were a danger. Third, McD’s had already settled with numerous people about being burned by coffee before. Fourth, McD’s dug their own grave by refusing a much lower request by Liebeck to pay her medical bills, ultimately culminating in a trial in which the jury, not Liebeck, awarded her millions of dollars based on a day or two’s worth of McD’s coffee revenue. Ultimately the judge reduced the amount, which is normal, and they settled for less than $600000.
I don’t know what Honda suit you’re talking about but because you said it, reality is probably is the opposite of what you intended it to mean. You’re an idiot still peddling a 20 year old case as a grudge against corporate responsibility. McD’s was always responsible, they should have been sued, and it was only luck that they didn’t have to pay more to Liebeck and all the other people they burned. And now you’re here peddling that same line of bullshit trying to defend an industry that, unlike any other, has special protections because you know they’d lose in the open market. Don’t reply to me, I don’t care what you have to say. This post is more for people who may still be on the fence about the whole McD’s coffee lawsuit. The fact is they were at fault and Liebeck deserved compensation. It was the exact opposite of a frivolous lawsuit
In the scenario you describe you are wrong. The PLCAA would not protect this dealer.
This scenario is a bit more ridiculous, but would also not be protected under the PLCAA. Marketing to criminals would fall under the exclusions of the PLCAA (5)(A)(iii)(II):
No, I don’t agree that it’s possible that the PLCAA protects gun companies from lawsuits that might have merit. Have you read the PLCAA? I linked the text above.
There is a ton of grey area here – “the term `negligent entrustment’ means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others”… and “aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe…” who decides whether the seller “reasonably should know”, or the manufacturer had “reasonable cause to believe”? If you can’t conceive that there might be a possible scenario in which a case with merit is thrown out due to the PLCAA, then I don’t think you have much imagination.
I disagree, based on reading the PLCAA. I think I’m a pretty creative guy, but it doesn’t seem hard to me to come up with a scenario in which a lawsuit that just might have merit is thrown out due to some interpretation of the PLCAA.
Further, you didn’t address the rest of my post – particularly that I still don’t see a compelling reason (unlike the protection for vaccine companies) that gun companies and dealers need this special government protection that most other companies don’t have. Do you have one?