Hamilton v. Accu-Tek

Decision Date10 December 1998
Docket NumberNo. CV-95-0049 (JBW).,CV-95-0049 (JBW).
Citation32 F.Supp.2d 47
PartiesFreddie HAMILTON, et al., Plaintiffs, v. ACCU-TEK, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

Elisa Barnes, Peter Sistrom, New York City, for Plaintiffs.

Budd Larner Gross Rosenbaum Greenberg & Sade, Short Hills, NJ by David R. Gross, David Scott Paul, Pamela B. Betlow, for Defendants.


WEINSTEIN, Senior District Judge.

This is an action by nine plaintiffs, representing the estates of persons killed by handguns, and in one case the guardian ad litem of a survivor of a shooting, against many handgun manufacturers and distributors. Motions to dismiss on the ground of lack of personal jurisdiction were filed by a number of distributor defendants.

The magistrate judge recommended that the claims against eight defendants be dismissed and that motions to dismiss by fourteen others be denied. See Report and Recommendation of Magistrate Judge Cheryl L. Pollak dated August 6, 1998, redacted by agreement of the parties to exclude sensitive sales information, infra ("Report"). At a hearing the operative portions of the Report were affirmed. See Transcript, September 18, 1998. This Memorandum reflects the basis for the court's oral decision.

The reasoning of the district judge and magistrate judge differ on one point — applicability of the jurisdictional analysis in In re DES Cases, 789 F.Supp. 552 (E.D.N.Y.1992), approved in In re New York County DES Litigation, 202 A.D.2d 6, 615 N.Y.S.2d 882, 884 (1st Dep't 1994), and Harold L. Korn, Rethinking Personal Jurisdiction and Choice of Law in Multistate Mass Torts, 97 Colum. L.Rev. 2183 (1997).

One of the plaintiffs' substantive theories is that defendants negligently marketed their handguns in various parts of the country and that, foreseeably, these guns made their way into the hands of New York's and other states' criminals, who used them to kill and wound. See Hamilton v. ACCU-TEK, 935 F.Supp. 1307, 1330 (E.D.N.Y.1996). Defendants' negligent marketing practices, plaintiffs contend, created an excessively large nationwide market in, and reservoir of, guns, leading to the individual shootings that are the subject of this case. Id. Plaintiffs have analogized these handguns to pathogens, exposure to which has caused widespread injury and death. Id. at 1313. The rationale for plaintiffs' claims of widespread adverse effects of handguns is similar to that of mass tort claimants in, for example, the asbestos, Agent Orange, Dalkon Shield and silicone breast implant litigations. Plaintiffs' theory shares a number of other features typical of mass torts, including geographically diffuse tortious conduct and impact, difficulty in tracing a particular plaintiff's injury to a particular defendant's actions, and problems in determining the number of potential defendants and their relative degrees of culpability. See, e.g., Deborah R. Hensler, A Glass Half Full, A Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Tex. L.Rev. 1587, 1595-97 (1995) (discussing nature and characteristics of mass torts).

If handguns are characterized as fungible for purposes of this jurisdictional motion, then, plaintiffs argue, the jurisdictional rule applied in the diethylstilbestrol (DES) litigation in In re DES Cases, 789 F.Supp. 552 (E.D.N.Y.1992) and In re New York County DES Litigation, 202 A.D.2d 6, 615 N.Y.S.2d 882 (1st Dep't 1994), applies. Since sales of a "fungible" product anywhere in the national market would affect sales in the New York market, plaintiffs contend, sellers anywhere could be found for jurisdictional purposes to have been participating substantially in the New York market, and, therefore, to be subject to New York's long arm jurisdiction.

The DES jurisdictional analysis was referred to by the magistrate judge as the "pond theory" since the national market for some products may be considered a "common economic pond that knows no state boundaries," and introduction of the product into any part of the market would have foreseeable ripple effects throughout the country. See Report at 15-16, infra; In re DES Cases, 789 F.Supp. 552, 576 (E.D.N.Y.1992). To be contrasted is the more traditional "stream of commerce" theory relied upon by the magistrate judge which has lead in some cases to a more restrictive scope of personal jurisdiction. See also Harold L. Korn, Rethinking Personal Jurisdiction and Choice of Law in Multistate Mass Torts, 97 Colum. L.Rev. 2183 (1997) (noting the potential benefits of Ashley's wider application).

Summarizing the views of the parties and concluding that handguns are not governed by the DES rule, the magistrate judge wrote:

[D]efendants contend, and this Court agrees, that the DES pond theory of personal jurisdiction should not be applied here because, unlike DES, handguns are not generic products sold interchangeably. There are numerous models and designs of guns with different calibers and ammunition capacity. Each handgun is marked with the manufacturer's name and a unique serial number. Once the gun is located, the identification of the manufacturer may be ascertained, and even when the gun itself cannot be located, each weapon leaves a "fingerprint" or "track" on the discharged bullet which can be identified through various ballistics tests.

Plaintiffs, however, claim that the guns used to shoot all of the plaintiffs' decedents are fungible in their non-identifiability ...arguing that because guns are often not recovered from the scene of a crime, and because, as defendants concede, it is often difficult to conduct ballistics tests without the actual weapon for comparison purposes, guns are a generic product similar to DES. However, even though a positive manufacturer identification cannot be made when the gun from which a bullet was fired is unknown, plaintiffs' own ballistics expert, Steven Colangelo, testified at his deposition that with respect to the guns that were not recovered, it was possible to eliminate certain manufacturers based on measurements taken of the discharged bullet.... In accordance with this testimony, Colangelo, conducted ballistics analyses and produced at his deposition lists of firearms that in his opinion were potentially used at each shooting. In this Court's view, the fact that guns were used in criminal activity may not always be recovered or identified to a 100% certainty does not transform guns into an inherently generic product.

See Report at 17-18, infra (emphasis added) (internal quotation marks and citation omitted).

The term "generic" was used by the magistrate judge as equivalent to the word "fungible." This identity of definition was appropriate in the DES cases where the chemical formula of the product of each producer was the same for pharmacological purposes. See Edwards v. A.L. Lease & Co., 46 Cal.App.4th 1029, 54 Cal.Rptr.2d 259, 262 (1st Dist.1996) (the DES cases "dealt with a fungible product manufactured from the same formula, which was inherently defective for its intended purpose by reason of design"). The dictionary definition of these two terms overlaps. Webster's New Twentieth Century Dictionary of the English Language (2d ed.1979) defines "fungible" as "designat[es] goods, as grain, any unit or part of which can replace another unit ... capable of being used in place of another," while "generic" refers "to a kind, class or group" with the same characteristics. See also Black's Law Dictionary (6th ed.1990).

It is the characteristic relevant to the matter at issue that determines whether a product is the same as and substitutable for another, and therefore, whether the two are interchangeable, that is to say, "fungible" for purposes of jurisdictional or substantive law. Two products interchangeable for one purpose may not be for another. Thus, for signalling New Year's Eve, a blast from an auto horn and one from a saxophone may be equivalent as noise, but few would want to dance to the former.

The jurisdictional issue is not encompassed in catch-all words like "generic" or "fungible." The question is whether the market in the state seeking to exercise personal jurisdiction, S-1, is so affected by market activities in other states, S-2 to S-N, as to affect the policies S-1 is seeking to effectuate. Even such diverse products as steel, aluminum, plastic and wood, when competing in the market for structural supports, may be competing in the same market for antitrust and other purposes; producers in S-2 to S-N may be substantially affecting the market and policies of S-1 and subject to personal jurisdiction in S-1.

It is true that certain types of handguns are more likely to be weapons of choice for a variety of lawful users or for criminals generally and in specific categories. Many criminals would undoubtedly prefer a high-grade, reliable automatic or semi-automatic to a Saturday Night Special, and drug dealer-defendants in this district seem to have a penchant for guns that can spray large quantities of bullets on a single pull of the trigger. See, e.g., Michael J. Folio, The Politics of Strict Liability: Holding Manufacturers of Nondefective Saturday Night Special Handguns Strictly Liable After Kelley v. R.G. Industries, Inc., 16 Hamline L.Rev. 147, 158 n. 57 (1992) (noting "fatally-flawed premise, that because Saturday Night Special handguns are cheap, easily concealable, and made of low quality materials they are the weapon of choice among criminals"). But, so too, even in the field of pharmaceuticals, and of DES particularly, the high percentage of the market held by well known brands, while suggesting consumer preference for certain producers, does not negate a pharmacologically generic-fungible characterization. (Having tried the DES cases, the court takes judicial notice that the pills manufactured by the various manufacturers were not identical, varying in shape, dosage and...

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