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In the Court of Common Pleas of Allegheny County, Pennsylvania

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In the Court of Common Pleas of Allegheny County, Pennsylvania IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA Marc A. Simon, as Executor of the Estates of CIVIL DIVISION Sylvan Simon and Bernice R. Simon, Docket No. GD-20-011130 Plaintiff, vs. RESPONSE TO COLT’S MEMORANDUM OF LAW IN National Rifle Association of America, Inc., SUPPORT OF ITS Colt’s Manufacturing Company, LLC, Colt PRELIMINARY OBJECTIONS Defense, LLC, John Doe Company and Robert Bowers, Filed on behalf of Plaintiff, Defendants. Marc A. Simon, as Executor of the Estates of Sylvan Simon and Bernice R. Simon Counsel for Plaintiff: ROBERT A. BRACKEN, ESQ. PA ID 206095 CHARLES A. LAMBERTON, ESQ., PA ID No. 78043 BRACKEN LAMBERTON, LLC 707 Grant Street The Gulf Tower, Suite 1705 Pittsburgh, PA 15219 JURY TRIAL DEMANDED Tel. (412) 533-9281 TABLE OF AUTHORITIES CASES Bond v. United States, 134 S. Ct. 2077 (2014) ............................................................................................................ 6, 7 Chiapperini v. Gander Mountain Co., Inc., 13 N.Y.S.3d 777 (N.Y. Sup. Ct. 2014) ....................................................................................... 3 Cipollone v. Liggett Group, 505 U.S. 504 (1992) ................................................................................................................ 6, 8 City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416 (2002)........................................................................................................... 8 City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (2003).............................................................................................................. 8 City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3rd Cir. 2002) ...................................................................................................... 8 Conroy v. Aniskoff, 507 U.S. 511 (1993) .................................................................................................................... 6 Coxie v. Academy, Ltd., No. 2018-CP-42-04297 (S.C. Ct. Com. Pl. Jul. 29, 2019) .......................................................... 3 Delana v. CED Sales, Inc., 486 S.W.3d 316, 322-323 (Mo. 2016) ....................................................................................... 8 Englund v. World Pawn Exch., 2017 Ore. Cir. LEXIS 3, (Jun. 30, 2017) ................................................................................... 2 Fox v. L&J Supply, LLC, No. 2014-24619, (Pa. Ct. Com. Pl. Nov. 26, 2018) .................................................................... 3 Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................................................................... 6, 7 Harley Davidson Motor Co. v. Hartman, 296 Pa. Super. 37 (Pa. Super Ct. 1981) ................................................................................... 10 Hill v. Slippery Rock Univ., 138 A.3d 673 (Pa. Super. Ct. 2016) .................................................................................... 1, 2, 4 Ileto v. Glock, 565 F.3d 1126 (9th Cir. 2009) ..................................................................................................... 4 Metro. Enter. Corp. v. United Techs. Int'l, Corp., 2004 U.S. Dist. LEXIS 12274 (D. Conn. Jun. 28, 2004) ............................................................ 5 Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) .................................................................................................................... 2 Norberg v. Badger Guns, Inc., Case No. 10-cv-20655, (Milw. Co. Cir. Ct. Jun. 9, 2011) .......................................................... 3 Pennsylvania Liquor Control Board v. Rapistan, Inc., i 472 Pa. 36 (Pa. 1976) ................................................................................................................. 1 Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123 (D. Nev. 2019) ......................................................................................... 4 Rodgers v. United States, 185 U.S. 83 (1902) ...................................................................................................................... 6 Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. Ct. App. 2007).......................................................................................... 3 Soto v. Bushmaster Firearms Int'l, LLC, 331 Conn. 53 (Conn. 2019), cert denied 140 S. Ct. 513 (2019) ............................................. 4, 8 Williams v. Beemiller, Inc., 100 A.D.3d 143 (N.Y. App. Div. 2012), amended by 103 A.D.3d 1191 (N.Y. App. Div. 2013) ..................................................................................................................................................... 3 STATUTES Connecticut Unfair Trade Practices Act (“CUTPA”) Conn. Gen. Stat. § 42-110a et seq. ............. 3 Protection of Lawful Commerce in Arms Act (“PLCAA”) 15 U.S.C. §§ 7901-7903 .......... passim Unlawful Acts 18 U.S.C. § 922(b)(4) ......................................................................................... 3, 5 OTHER AUTHORITIES 151 Cong. Rec. S9061, S9099 (2005)......................................................................................... 2, 8 Antonin Scalia & Bryan A. Gardner, Reading The Law: The Interpretation Of Legal Texts (2012) .................................................... 7 ii Introduction Defendants Colt’s Manufacturing Company, LLC and Colt Defense, LLC (collectively “Colt”) intentionally marketed to the general public an AR-15 military-style firearm (the “Assault Rifle”), knowing that they are guns of choice for mass killers. First Amended Complaint (“FAC”) at 5-6 ¶¶ 9-19, 12-13, 58-67. Colt marketed the gun to attract mass killers, and designed it as a “machinegun,” easily modifiable to fire automatically. Id. at 5-6 ¶¶ 9-19, 28-30, 46-47, 150-162, 171-176, 288-292. When AR-15 massacres continued, Colt doubled down, recklessly pushing military weaponry. See id. at 5-6 ¶¶ 10-19, 46-47 ¶¶ 288-292. Colt’s practices reaped it great profits, but Plaintiff’s parents, Sylvan and Bernice Simon, bore some of the costs of Colt’s actions. The Assault Rifle was used by one of Colt’s customers in an attack on the Tree of Life synagogue, a predictable, foreseeable consequence of Colt’s misconduct that killed the Simons. Their son seeks redress, and to hold Colt accountable. Those facts are undisputed at this stage. Pennsylvania tort law entitles Plaintiff to pursue his claims for negligence, products liability, and public nuisance. Colt claims that the Protection of Lawful Commerce in Arms Act (“PLCAA,” 15 U.S.C. §§ 7901-7903) provides it with “immunity” (Colt’s Memorandum of Law in Support of Preliminary Objections (“MOL”) at 1) which prohibits this Court from providing Plaintiff redress. Colt is wrong. Standard of Review In considering Colt’s objections, “[a]ll material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hill v. Slippery Rock Univ., 138 A.3d 673, 677 (Pa. Super. Ct. 2016) (internal quotation omitted); Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 42 (Pa. 1976) (same). “Where a doubt exists 1 as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Hill, 138 A.3d at 677 (internal quotation omitted). Argument I. PLCAA Does Not Shield Colt Because This Case is Not a “Qualified Civil Liability Action” A. PLCAA Provides A Limited Defense, Not “Immunity” PLCAA does not provide Colt with immunity from suit because there is no “explicit statutory or constitutional guarantee that trial will not occur.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 801-02 (1989) (internal quotation omitted). PLCAA’s chief sponsor made clear that PLCAA “is not a gun industry immunity bill.” 151 Cong. Rec. S9061 (July 27, 2005) (statement of Sen. Craig) (Ex. 1). PLCAA creates a limited affirmative defense under which gun industry actors can only claim protection if they can demonstrate both that a case falls within the general definition of a prohibited “qualified civil liability action” (15 U.S.C. § 7903(5)(A)) and does not satisfy any PLCAA exceptions. § 7903(5)(A)(i-vi). The record establishes neither: Plaintiff’s case does not come within the general definition, and it satisfies PLCAA’s “predicate exception.” § 7903(5)(A)(iii). Thus, all claims are permitted. B. PLCAA’s Predicate Exception Is Satisfied and Allows All Claims To Proceed PLCAA’s predicate exception allows “any case in which” a gun company “knowingly violated a State or Federal statute applicable to the sale or marketing of [firearms], and the violation was a proximate cause of the harm . .” See § 7903(5)(A)(iii)(I-II). Every court to have addressed the issue has found that this exception, if satisfied, disentitles the defendant to any protection, and permits all claims – including those which might not otherwise fall within a PLCAA exception. See, e.g., Englund v. World Pawn Exch., 2017 Ore. Cir. LEXIS 3, *11-12 (Jun. 30, 2017) (“the predicate exception’s broad language provides that an entire ‘action’ 2 survives – including all alleged claims”) (denying motion to dismiss claims including negligence and public nuisance) (Ex. 2) ; Fox v. L&J Supply, LLC, No. 2014-24619, 1 n.1 (Pa. Ct. Com. Pl. Nov. 26, 2018) (denying summary judgment; allowing negligence and public nuisance) (Ex. 3); Coxie v. Academy, Ltd., No. 2018-CP-42-04297 (S.C. Ct. Com. Pl. Jul. 29, 2019) (denying motion to dismiss; allowing negligence
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