Adult Injury Alabama Child Injury (18 and Under) New York Ongoing Investigation October 31, 2020November 2, 2020 by Gary Klein

SATURDAY, OCTOBER 31, 2020

Two young children were innocent victims of gun violence on Halloween. Both were bystanders when arguments broke out and shots were fired.

In New York City, an 8-year old, her father and a third bystander were wounded by gunfire outside a supermarket. All three victims are in stable condition. According to a witness, three gunshots were fired during the incident, which involved an argument in which the victims were not involved.

In Birmingham, Alabama, a 10-year old boy was struck in the lower body outside a shopping mall where an argument was taking place. The boy’s injuries are not believed to be life-threatening. This is the second unintentional gun injury of a Birmingham child in three days.

In both instances, no arrests have been made.

Sources:

Larry Celona, Alex Taylor and Jorge Fitz-Gibbon, “8-year-old Girl Among Three Bystanders Wounded in NYC Shooting,” New York Post (November 1, 2020).

Shannon Delcambre, “Child Shot During Shootout at Birmingham Shopping Center,” WVTM13 (November 1, 2020).

Victim was Innocent Bystander

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THE TAURUS PISTOL DEFECT
In 2017, the Brazilian company Forjas Taurus (“Taurus”)¹ recalled nearly a million of its popular pistols² in the United States as part of the settlement of a class action lawsuit.³The guns involved have a defect that sometimes causes them to fire even when the gun’s safety was in its “on” position and/or when the gun is dropped. In other words, the gun will go off on some occasions, not just without a trigger pull, but also when the gun user believed it had been locked because the safety was on.⁴ If the safety is on, plainly the gun should not fire if dropped, or even if the trigger is pulled.

Upon entering the United States market, Taurus had become known in the gun community as a cheaper alternative to existing U.S.-made firearms.⁵According to some surveys, Taurus pistols quickly entered the ranks of the most popular, highest selling pistols in the country.⁶

Yet, the pistol defect continuously manifested itself in various troubling ways, sometimes causing injuries and property damage:
- In February 2005, Adam Maroney’s Taurus PT 111 Pistol fell out of his pocket onto his garage floor and discharged, sending a bullet up through his pancreas, spleen, diaphragm, and lungs. At the time of the accident, Mr. Maroney had the manual safety lever in the “on” or “safe” position.⁷
- In 2009, Judy Price’s Taurus Pistol Model PT-140 discharged with the Manual Safety Lever in the “on” or “safe” position, after she accidently dropped it. The bullet entered through her thigh, and then passed through her colon and intestines and lodged in her liver. Ms. Price had months of medical complications and surgeries.⁸
- In 2016, 28-year-old Jarred Brown was reportedly shot and killed when his still holstered Taurus PT-145 Millennium Pro pistol fired without a trigger pull and tore through his femoral artery. His parents watched him bleed to death.⁹
- 11-year-old D.J. Simms was shot to death in 2015 when his father was attempting to seat the magazine in his Taurus PT 609 pistol and the gun went off without a trigger pull.¹⁰
Over the years, the existence of the defect has been well-publicized. Several YouTube videos show Taurus guns firing when shaken or dropped.¹¹ Many media reports have also been published.¹² In addition, various Brazilian authorities have recalled Taurus pistols or have launched investigations concerning the defect. The Sao Paulo state police recalled 98,000 Taurus pistols after concluding that they were prone to fire when dropped or when the safety was engaged.¹³ A Brazilian federal prosecutor and Brazil’s lower house of Parliament have investigated the extent to which defective guns have affected Brazilian law enforcement.¹⁴ A Taurus lawyer acknowledged that Taurus is defending at least 35 lawsuits in Brazil alleging misfires.¹⁵

Owners of the Taurus pistols covered by the 2017 class action settlement can return them to Taurus at any time for safety inspection and repair.¹⁶ There is no charge for shipping.¹⁷ Because the Taurus warranty is permanently modified, there is no time limit on return for inspection and repair.¹⁸ In addition, Taurus agreed to provide a cash payment of up to $30,000,000 to be divided among class members who choose to return their guns within a specified time period.¹⁹ The amount of the payment is based on a prorated schedule that depends on the number of guns returned. It could be as high as $200 per returned gun.²⁰

Taurus also agreed to provide special safety training of unspecified value to class members.²¹ According to the class notice: "this safety training addresses proper handling and carrying to avoid dropping a pistol; educates owners concerning the safety features and safety systems in the Class Pistols; and provides information and instructions on how to properly store, pack, and ship the Class Pistols for return to the Taurus Companies."²²

The training videos are available on the internet (and can be requested by DVD).²³ The real value of training about gun handling procedures to gun owners and users is unclear and, for some class members, might actually undermine the settlement by suggesting that the defect can be fully managed with better safety precautions. Although training benefits might be valuable to relatively inexpert gun owners who might be reluctant to use settlement benefits to have their guns repaired, it may undermine the settlement’s message that an unrepaired safety defect creates danger to gun owners, to their family and to the public.

Class members release all claims other than personal injury and property damage claims arising from the defect, whether or not they derive any benefit from the settlement.²⁴ As the Court noted in its order approving the settlement: “Because there is no national firearm registry, and the Settlement applies to present owners and not purchasers, the Court approved the parties' notice program, which involved extensive publication notice through national periodicals and popular internet outlets.”²⁵

It is thus unclear how many class members received actual notice of the settlement, because it is unclear how many class members viewed the various publications and websites where the notice was published. Under class action jurisprudence, class member claims are released whether or not they received notice.²⁶ Perhaps more importantly, no party in the Taurus pistol settlement raised questions about the contents of the class action notice, including whether it provided an adequate warning to class members of the dangerousness of the defect.

Despite robust settlement benefits designed to facilitate repair or replacement of pistols with a known and highly dangerous defect, relatively few class members sought settlement benefits. Counsel for the parties reported in September, 2019 that fewer than 20,000 guns (about 2% of the class guns) had been returned for inspection and repair.2⁷ Only about 2,000 class members had filed a claim for a payment from the settlement, yielding cash claims for only approximately $200,000.²⁸ Although the claims payment deadline is now expired such that no further cash claims are possible, the permanent warranty settlement benefit mean that guns can still be returned for inspection and repair. However, counsel reported that the rate of ongoing warranty claims had slowed to about 20 a week.²⁹ Plainly, this means that many hundreds of thousands of class pistols will remain unrepaired, subject to firing without warning if a loaded pistol is dropped (whether the safety is on or not) or if the trigger is accidently pulled while the safety is on. Accidents will certainly continue.

ENDNOTES:

¹Since 1982, two related companies, Taurus International Manufacturing, Inc. (“Taurus Manufacturing”) and Taurus International Holdings, import, distribute and market Taurus guns in the United States. History, Taurus, https://www.taurususa.com/company/history/. Some of Taurus’s guns are now built in the United States. Id. Those guns that are manufactured in Brazil are subject to certain dubious American federal safety requirements that will be discussed later in this article. Although not relevant to the defect described here, at one time, Forjas Taurus appeared to be engaged in a scheme to evade federal import restrictions on imported guns by exporting pistols that were not subject to those regulations and then altering them when they reached the United States. See Peter Fritsch and Vanessa O’Connell, Success by Brazil’s Taurus Shows Why Gunmakers Like the U.S., The Wall Street Journal (Aug. 11, 1999),https://www.wsj.com/articles/SB934326284717822059.

² The pistols involved are the PT-111 Millennium; PT-132 Millennium; PT-138 Millennium; PT-140 Millennium; PT-145 Millennium; PT-745 Millennium; PT- 609; PT-640; and PT-24/7 pistols (including the “PRO” series of each of these models). Taurus Class Action, Taurus Carter Settlement (“Taurus Carter Settlement”), http://www.tauruscartersettlement.com/. The similar pistols now featured on Taurus’s English language website are G2 (generation two) models that are not covered by the settlement. G2s Models, TaurusUSA.com, https://www.taurususa.com/firearms/pistols/g2s/. Almost all of the pistols are now and have been priced under $400. Id. As one article reports, various Taurus models, because they are comparatively inexpensive, have been treated as starter guns. Michael Smith and Polly Mosendz, How Defective Guns Became the Only Product That Can’t Be Recalled, bloomberg.com (Feb. 28, 2018) (“Defective Guns”), https://www.bloomberg.com/news/features/2018-02-28/how-defective-guns-became-the-only-product-that-can-t-be-recalled.

³ See Taurus Carter Settlement. Carter v. Forjas Taurus, S.A., 1:13-CV-24583-PAS, 2016 WL 3982489 (S.D. Fla. 2016) aff’d. 701 Fed.Appx. 759 (11^th Cir. 2017). References to documents in the District Court record will be as follows: Carter v. Forjas-Taurus, with a reference to the Court docket number.

⁴ For example, Taurus Manufacturing’s former CEO, Robert G. Morrison, admitted under oath in the trial of a personal injury case: “My answer to the question if you are referring to all [Taurus] PT 111s, it is I believe that they can go off if dropped.” Carter v. Forjas-Taurus, Doc. No. 73-4: Maroney v. Taurus International Manufacturing, Inc., Case No. 07-73 (Ala. Cir. Ct. dismissed 2009) Trial Transcript p. 124. The company acknowledged the defect with its safety mechanisms in 2007 in its owner manuals by stating “WARNING: To properly apply the manual safety lever, the trigger must be in its forward-most position, otherwise the lever can be moved upwards, but will not be fully engaged.” Carter v. Forjas-Taurus, Doc. No. 73 at ¶ 38.

⁵ See, e.g., Daniel Berry, The Top 6 Best-Selling Taurus Handguns, Cheaper Than Dirt! (Aug. 10, 2019), https://blog.cheaperthandirt.com/top-selling-taurus-handguns/; 9 Best Concealed Carry Guns, Pew Pew Tactical (Oct. 3, 2019), https://www.pewpewtactical.com/best-concealed-carry-guns-caliber/.

⁶Id.

⁷ Carter v. Forjas-Taurus, Doc. No. 73-4: Maroney v. Taurus International Manufacturing, Inc., Case No. 07-73 (Ala. Cir. Ct. dismissed 2009) Trial Transcript p. 124.

⁸ Carter v. Forjas-Taurus, Doc. No. 73, ¶ 45.

⁹ See Defective Guns.

¹⁰ Catherine Dunn, Bullets Beyond Recall: Defective Guns Outside US Government’s Reach, International Business Times (Dec. 17, 2015) (“Bullets Beyond Recall”), https://www.ibtimes.com/bullets-beyond-recall-defective-guns-outside-us-governments-reach-2226935; Kent Faulk, Alabama Man Files Lawsuit Against Gunmaker Taurus, Claims Safety Defect Killed Son, al.com (Jan. 13, 2015), https://www.al.com/news/birmingham/2015/11/alabama_man_files_lawsuit_agai.html.

¹¹AL.com, Watch Taurus 24/7 Pistol Fire Just By Being Shaken, YouTube (Nov. 12, 2015), https://www.youtube.com/watch?v=2fn6GFSwTEw; AL.com, See What Happens When You Drop a Loaded Taurus Pistol, YouTube (Nov. 12, 2015), https://www.youtube.com/watch?v=v0k56pS_u3Q.

¹² See Defective Guns; Bullets Beyond Recall; Jacki Billings, Lawsuits Against Taurus Continue to Mount Despite Settlement, guns.com (Oct. 15, 2016),https://www.guns.com/news/2016/10/15/lawsuits-against-taurus-continue-to-mount-despite-settlement

¹³ See Defective Guns.

¹⁴Michael Smith and Polly Mosendz, How Defective Guns Became the Only Product That Can’t Be Recalled, bloomberg.com (Feb. 28, 2018), https://www.bloomberg.com/news/features/2018-02-28/how-defective-guns-became-the-only-product-that-can-t-be-recalled. Among other things, in Brazil, “a 2010 test of 350 Taurus PT-840 police pistols showed 100 were defective.” Id.

¹⁵ Id.

¹⁶Carter v. Forjas Taurus, S.A., 1:13-CV-24583-PAS, 2016 WL 3982489 (S.D. Fla. 2016) aff’d. 701 Fed.Appx. 759 (11^th Cir. 2017). Another similar class action case involving Rossi revolvers that were built in Brazil and exported to the United States by Forjas Taurus between 2005 and 2017 was settled in 2019. Burrow, et al. v. Forjas Taurus, S.A., et al., No: 1:16-cv-21606, Doc. No. 138 (S.D. Fla. September 6, 2019). See Rossi Revolver Settlement (Oct. 29, 2019), https://rossirevolversettlement.com/. Like Carter, the Burrow suit alleged that the revolvers at issue were defective because they could fire if dropped, even with their safety engaged. Burrow v. Forjas-Taurus, supra, First Amended Complaint, Doc. No. 56. The settlement benefits were similar to those in the Carter case, including an option to return the gun for inspection and repair at any time (with no time limit). Burrow v. Forjas-Taurus, supra, Unopposed Motion for Preliminary Approval of Settlement, Doc. No. 127-1, pp. 6-11. As many as 255,000 revolvers are covered. Burrow v. Forjas-Taurus, supra, Unopposed Motion for Preliminary Approval of Settlement, Doc. No. 127-1, pp. 5, 21.

¹⁷Id.

¹⁸ Id.

¹⁹ Carter v. Forjas-Taurus, supra, Settlement Agreement and Release, Doc. No. 123, p. 17, ¶ III. E. 1.

²⁰ Id.

²¹ Carter v. Forjas-Taurus, supra, Settlement Agreement and Release, Doc. No. 123, p. 18, ¶ III. E. 3.

²² Carter v. Forjas-Torjas, supra, “Website Notice”, available at https://www.tauruscartersettlement.com/images/docs/Website_Notice.pdf, p. 5, Query 8.

²³ Id.

²⁴ Carter v. Forjas-Taurus, supra, Settlement Agreement and Release, Doc. No. 123, pp. 24-25, ¶ III. M.

²⁵ Carter v. Forjas Taurus, S.A., 1:13-CV-24583-PAS, 2016 WL 3982489, *5 (S.D. Fla. 2016).

²⁶ The notice must be the best practicable, "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 (1950). Where class members' names and addresses cannot be determined with reasonable effort, notice by publication is typically found to be adequate. See, e.g., In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 168–69 (2d Cir.1987).

²⁷ Carter v. Forjas-Taurus, Status Conference Hearing Transcript, Doc. No. 272, p. 10, lines 4-8.

²⁸ Id.

²⁹ Carter v. Forjas-Taurus, Status Conference Hearing Transcript, Doc. No. 272, p. 10, lines 21-22. It seems likely, since there is no ongoing notice program, that the number of requests will continue to diminish.