Mass tort actions, especially those brought by plaintiffs’ attorneys (aka ambulance chasers), depend upon a large number of individuals harmed. When dealing with asbestos or tobacco, it was easier to find potential clients. However, when dealing with gun shot victims, there are many fewer and it was harder to line up potential clients. Thus the alliance with municipalities was critical for both the private plaintiffs attorneys who handled cases for New Orleans and other locales and for those who used Kairys’ public nuisance theory. By taking the focus off the individual and putting it on a mass group, the “blame the smoker” approach of defense attorneys is harder to employ. Erichson noted this in his essay for Suing the Gun Industry.As a matter of causation, plaintiffs in individual gun cases have difficulty proving that different industry conduct would have prevented a particular victim’s shooting. Municipal gun lawsuits, by treating the harm on an aggregate level in terms of cost to the municipality, remove attention from any individual shooting and thus diminish the power of the defense arguments that focus on blameworthy victims, owners, or shooters. Thus, the public entity plaintiff in tobacco litigation is less vulnerable to to the defendants’ “blame the smoker” argument for contributory negligence, comparative fault, or assumption of risk, while the public entity plaintiff in gun litigation is less vulnerable to the defendants’ “blame the shooter” argument for superseding cause or for challenging actual causation.
I just know this is going to be an awesome series of posts. I know it is not as sexy as seeing CSGV members go unhinged or some gun review, but this stuff is where what needs to be learned, specially Gun Culture 2.0 as it was one of the darkest moments in Gun Rights history.
Seriously people, read every single post.