Philadelphia Lawyers Lead Recall of Allegedly Defective Guns

Pennsylvania - New Jersey - New York - Nationwide

By Jeff Blumenthal
PHILADELPHIA, WEDNESDAY, OCTOBER 31, 2001

At the urging of two Philadelphia lawyers who secured a settlement on behalf of a brain-damaged client earlier this year, the Consumer Product Safety Commission voted 2-1 yesterday to seek a recall of more than 7 million Daisy Manufacturing Co. Inc. BB guns via a lawsuit.

At a press conference in Washington D.C., the CPSC announced that it was accepting a petition Shanin Specter and Andrew Youman of Kline and Specter filed against Daisy seeking the recall of two models of defective guns.

The CPSC filed the lawsuit against Daisy under Section 15 of the Consumer Product Safety Act and Section 15 of the Federal Hazardous Substances Act. The lawsuit seeks to compel Daisy to notify consumers that the Model 880 and Model 856 Powerline Airguns are defective and present a substantial risk of death or injury to anyone using the airgun which is synonymous with a BB gun. The administrative complainant neither seeks a ban on all airguns nor all Daisy airguns.

"Daisy has refused to voluntarily recall these BB guns which have been sold since September 1972 in sporting goods, department, and hardware stores, as well as on the Internet," a CPSC press release said.

CPSC officials, who believe the guns are defective, said they know of at least 15 deaths and 171 serious injuries attributed to alleged design and manufacturing defects of Daisy's Powerline Airguns. About 80 percent of those who have been killed or injured by the airguns were children under the age of 16. Children have been killed after being shot in the head or chest. Other children have suffered serious injuries, including paralysis and brain damage, after BBs punctured the heart, spinal cord or skull.

The CPSC lawsuit takes Specter's argument a step further, contending that Daisy's Powerline Airguns' failure to incorporate an automatic safety system makes the BB guns defective. Daisy's Powerline Airguns currently have a manual safety button on them, CPSC officials said.

Commission Staff members said it would cost $2 per airgun to correct the defect that causes BBs to become lodged in the loading mechanism and to put an automatic safety device on the airgun.

Specter and Youman filed the petition in April 200, a year before negotiating a settlement with Daisy on behalf of 18-year-old John Tucker Mahoney of Doylestown. Mahoney was accidentally shot in the head by a friend on May 22, 1999.

Mahoney, then 16, and a friend, Ellsworth Wetherby IV, had cocked and fired their Daisy gun about eight times and thought it was empty because no BB's came out. Wetherby cocked the gun and aimed it at Mahoney, intending to blow his hair with a blast of air. But Specter said the gun discharged a BB into Mahoney's skull and severed an artery in his brain. Mahoney can no longer walk, talk or eat, Specter said.

Specter said Daisy knew about the problem and modified the design of the rifles in 1998 and 1999 to solve it. But the company did not report the problem or recall existing products, he said.

The suit says the Model 856 Daisy rifle was defective because it could give people the impression that a loaded gun was empty. The vote, which came a day before commission chairwoman Ann Brown is scheduled to step down, has become highly political. Lawyers for Daisy asked Brown to abstain from voting, accusing her of leaking information about the recall. Daisy also has maintained that its air guns are not defective and the National Rifle Association has urged its members to oppose action taken against the company.

"This is not about Republicans and Democrats," Specter said. "But Daisy sought to politicize the matter instead of just living up to their obligations to provide a safe product. Daisy convinced the NRA that this was about taking guns away. So the NRA activated its membership and sent e-mails to the CPSC and sought to develop public support for this. But I don't think that had much success."

Specter said since filing the petition, the commission has come to him with questions and requests for sample guns and pertinent documents. Specter and Mahoney's parents traveled to Washington a few weeks back to meet with commission members.

While he has tried many cases and received his share of positive verdicts, Specter said this is the first time he has taken a case to a regulatory body after trial.

"We were here today to prevent future injuries," Specter said. "I would prefer not to represent people injured or killed by these defective guns anymore."

* This article is republished with permission from American Lawyer Media, Inc. Copyright 2001. ALM PROPERTIES, Inc. All Rights Reserved. Further Duplication Without Permission is Prohibited.