Seguin et al v. Remington Arms Company, LLC et al

Filing 159

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 151 motion for summary judgment is GRANTED; IT IS FURTHER ORDERED that Defendant's 152 cross-motion for summary judgment is DENIED. Signed by Judge Ivan L.R. Lemelle on 5/16/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PRECIOUS SEGUIN, ET AL.

CIVIL ACTION

VERSUS

NO. 14-2442

REMINGTON ARMS COMPANY, LLC, ET AL.

SECTION “B”(2)

ORDER AND REASONS
Before the Court are cross-motions for summary judgment filed
by

Plaintiff

Defendant

Precious

Remington

Seguin
Arms

(“Precious”
Company,

or

LLC

“Plaintiff”)

and

(“Remington”

or

“Defendant”). Rec. Docs. 151, 152. Both parties timely filed
opposition memoranda. Rec. Docs. 154-1, 155. For the reasons
discussed below,
IT IS ORDERED that Plaintiff’s motion for summary judgment
(Rec. Doc. 151) is GRANTED;
IT

IS

FURTHER

ORDERED

that

Defendant’s

cross-motion

for

summary judgment (Rec. Doc. 152) is DENIED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As previously discussed, this case arises out of a tragic

hunting accident in which Precious suffered significant injuries.
On October 28, 2013, at approximately 10:00 p.m., Precious went
out into the woods near Loranger, Louisiana with her father, James
Seguin, Jr. (“J.R.”), her brother, James Seguin, III (“Bubba”),
and a family friend, Matthew Perilloux (“Perilloux”), to hunt a
wounded deer. See Rec. Docs. 150 at 1; 53-3 at 2; 61-3 at 1-2.

1

J.R. was carrying a Remington Model 710 bolt-action rifle (“the
rifle”). Rec. Doc. 150 at 1. The party moved through the woods in
a single file in the following order: Perilloux, J.R., Precious,
and then Bubba. Rec. Docs. 53-3 at 3; 61-3 at 2. Plaintiff
maintains that, at one point, she bent over, facing the opposite
direction of the group, to look for a blood trail.
3

at

2.

The

rifle,

then

pointed

in

Rec. Doc. 61-

Plaintiff’s

direction,

discharged and struck Plaintiff in the right buttocks, traveling
through her hip and exiting through her right elbow. Id. at 3; see
also Rec. Doc. 150 at 1.
On October 24, 2014, Precious, J.R., Bubba, and Precious’s
mother,

Joy,

filed

suit

against

Remington,

Sporting

Goods

Properties, Inc. (“SPS”), and E.I. du Pont de Nemours and Company
(“E.I”). Rec. Doc. 1. Plaintiffs amended their complaint, naming
Remington as the sole defendant. Rec. Doc. 8. They then voluntarily
dismissed SPS and E.I. Rec. Doc. 13. On July 5, 2016, this Court
granted Plaintiffs’ unopposed motion to dismiss with prejudice all
claims brought by Joy, J.R., and Bubba. Rec. Doc. 125. The only
remaining claim is Precious’s products liability claim against
Remington.
During a telephone status conference on March 21, 2017,
counsel for both parties informed the Court that they would like
to submit cross-motions for summary judgment instead of proceeding
to trial. Rec. Doc. 146. After an extension, the parties filed the
2

instant motions. Rec. Docs. 151, 152. The only issue before the
Court is whether or not Plaintiff may assert and recover on a claim
for design defect under the Louisiana Products Liability Act
(“LPLA”). Rec. Doc. 150 at 2 (citing LA. REV. STAT. ANN. §§ 9:2800.56,
9:2800.60). If the Court finds that Plaintiff may assert and
recover

on

such

a

claim,

then,

pursuant

to

the

parties’

stipulations, judgment is to be entered in Plaintiff’s favor in
the amount of $500,000; otherwise, judgment is to be entered in
Defendant’s favor, dismissing all claims with prejudice. Rec.
Docs. 150 at 2-3; 152-1 at 2. Oral arguments on the motions
were received by teleconference on Friday, May 12, 2017 at 9:00
a.m. with parties' counsel. See Rec. Doc. 149.
II.

PARTIES’ CONTENTIONS
Plaintiff argues that “[t]he decision before this [C]ourt is

whether any firearm, irrespective of how horrific the design, can
ever be the subject of a § 9:2800.60 claim.” Rec. Doc. 151-1 at 1.
In other words, assuming that Plaintiff could demonstrate a design
defect under § 9:2800.56, this Court must determine whether or not
§ 9:2800.60(B) prohibits Plaintiff from bringing such a claim
against Defendant.
Even though the issue is not before the Court, we will briefly
describe Plaintiff’s allegation that the rifle’s “Walker fire

3

control mechanism” is defectively designed.1 See Rec. Doc. 151-1
at 2. According to Plaintiff, the mechanism uses a “connector”
that “floats on top of the trigger inside of the gun . . . .” Id.
at 3. “When the trigger is pulled, the connector is pushed forward
. . . allowing the sear to fall and fire the rifle.” Id. Before
the

trigger

is

pulled,

the

connector

and

sear

overlap

only

slightly, by about 25/1000ths of an inch. Id. at 4. Because the
connector is not bound to the trigger, it allegedly separates from
the trigger during the recoil after each firing. Id. Dirt, debris,
and

manufacturing

scrap

can

then

become

lodged

between

the

connector and the trigger. Id. If too much debris accumulates, the
connector will no longer be able to support the sear. Id. at 5.
The rifle may then fire without the trigger being pulled if the
rifle is jarred or dropped, when the safety is released, or when
the bolt is open or closed. Id.2 According to Plaintiff, “[t]here
have been over 4,000 documented complaints of unintended discharge

Defendant maintains that Plaintiff’s description of the alleged design defect
is “not only irrelevant . . . [but] inaccurate.” Rec. Doc. 155 at 2. It
specifically notes that the rifle never accidentally discharged either before
or after the incident; independent testing showed that the rifle could only be
fired by pulling the trigger; the Louisiana Department of Wildlife and Fisheries
concluded that the trigger either caught on an object and/or the accident was
caused by reckless handling of the rifle; and J.R. told law enforcement that a
tree branch pulled the trigger. Id. at 2-3 (citations omitted). Defendant’s
arguments are noted by the Court. Nonetheless, the Court will summarize
Plaintiff’s allegations. Whether or not the rifle was defectively designed is
not an issue presently before this Court and the Court makes no determination
as to this issue.
2 Remington purportedly created acronyms for these misfirings:
“FBC” stands
for fire on bolt closure, “FBO” for fire on bolt opening, “FSR” for fire on
safe release, and “JO” for jar-off. Rec. Doc. 151-1 at 5.
1

4

with respect to” the Model 710 rifle and its predecessor, the Model
700. Id. at 2.3
Assuming

Plaintiff

could

demonstrate

a

design

defect,

Defendant argues that recovery is precluded by § 9:2800.60(B).
Rec. Doc. 152-1 at 1. Plaintiff maintains that this statute is
ambiguous and, if applied literally, would lead to an absurd
result. Rec. Doc. 154-1 at 2.

The Eighth Circuit noted in 2015 that “[t]he Walker trigger, as designed,
allows the connector and trigger to separate when the rifle is fired, creating
the possibility of foreign material getting trapped between the trigger and
connecter, which misaligns the connector by pushing it forward. This, coupled
with the already minute engagement point between the sear and the connector,
can result in a Model 700 rifle discharging without the trigger being pulled
when the connector is misaligned by as little as 1/100th of an inch, or the
thickness of 2 ½ pieces of standard copy paper. Moreover, the Walker trigger
hides this latent defect inside a riveted housing unit which interferes with a
user’s ability to clean the interior parts to remove the presence of foreign
materials, or to visually inspect the parts to determine whether the connector
has become misaligned and has an insufficient engagement with the sear. All of
this makes it very difficult to prevent an inadvertent discharge from occurring
in a Model 700 rifle; more significantly, it makes it very difficult to predict
when an inadvertent discharge caused by this design defect may occur.” O’Neal
v. Remington Arms Co., 817 F.3d 1055, 1060-61 (8th Cir. 2015). In that case,
Remington “acknowledged that at least 20,000 rifles it manufactured prior to
1975 were susceptible to inadvertent discharges when the safety lever was moved
from the safe position to the fire position without the trigger being pulled.”
Id. Ultimately, the court concluded that “a rifle originally manufactured in
this condition, which allows for the possibility of the rifle discharging
without pulling the trigger, is defective and not fit for its ordinary purpose.”
Id. at 1061 (citations omitted). The case was remanded to the district court to
determine whether or not the defect existed when it left the manufacturer. Id.
at 1063. Defendant notes that the court in O’Neal considered a Model 700 rifle
manufactured prior to 1975, while the instant case involves a Model 710 rifle
manufactured in 2003. Rec. Doc. 155 at 12 (citations omitted). Again,
Plaintiff’s description of the alleged design defect and the materials she cites
in support of those allegations, including O’Neal, are reproduced here only to
provide a better understanding of the underlying claim. The Court withholds
judgment as to whether or not the rifle at issue was defectively designed.
3

5

III. LAW AND ANALYSIS
A. APPLICABLE LAW
1. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

answers

to

with

the

together

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Generally,

the

movant

must

point

to

“portions

of

‘the

pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If and when the movant carries this
burden, the non-movant must then go beyond the pleadings and
present other evidence to establish a genuine issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Though, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
6

shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
However, where the parties “seek summary judgment solely on
a question of law, the usual rules about burden-shifting and
whether a genuine issue of material fact exists do not apply.”
Weeks Tractor & Supply Co., LLC v. Arctic Cat Inc., 784 F. Supp.
2d 642, 646 (W.D. La. 2011) (citing Anderson, 477 U.S. at 249-50).
2. THE LPLA
The LPLA provides “the exclusive theories of liability for
manufacturers for damage caused by their products.” LA. REV. STAT.
ANN. § 9:2800.52. It establishes four theories of liability:

(1)

a manufacturing defect under § 9:2800.55; (2) a design defect under
§ 9:2800.56; (3) failure to adequately warn under § 9:2800.57; and
(4) failure to conform to a manufacturer’s express warranty under
§ 9:2800.58. LA. REV. STAT. ANN. § 9:2800.54. Nevertheless, the
question before this Court is whether or not § 9:2800.60, enacted
by the Louisiana legislature in 1999, bars Plaintiff’s design
defect claim against Defendant. This section, titled “Liability of
manufacturers and sellers of firearms,” provides in full:

7

The legislature finds and declares that the
A.
Louisiana Products Liability Act was not designed to
impose liability on a manufacturer or seller for the
improper use of a properly designed and manufactured
product. The legislature further finds and declares that
the manufacture and sale of firearms and ammunition by
manufacturers and dealers, duly licensed by the
appropriate federal and state authorities, is lawful
activity and is not unreasonably dangerous.
B.
No firearm manufacturer or seller shall be liable
for any injury, damage, or death resulting from any
shooting injury by any other person unless the claimant
proves and shows that such injury, damage, or death was
proximately caused by the unreasonably dangerous
construction or composition of the product as provided
in R.S. 9:2800.55.
C.
Notwithstanding any other provision of law to the
contrary, no manufacturer or seller of a firearm who has
transferred that firearm in compliance with federal and
state law shall incur any liability for any action of
any person who uses a firearm in a manner which is
unlawful, negligent, or otherwise inconsistent with the
purposes for which it was intended.
D.
The failure of a manufacturer or seller to insure
that a firearm has a device which would:
make the
firearm useable only by the lawful owner or authorized
user of the firearm; indicate to users that a cartridge
is in the chamber of the firearm; or prevent the firearm
from firing if the ammunition magazine is removed, shall
not make the firearm unreasonably dangerous, unless such
device is required by federal or state statute or
regulation.
E.
(1) For the purposes of this Chapter, the potential
of a firearm to cause serious injury, damage, or death
as a result of normal function does not constitute a
firearm malfunction due to a defect in design or
manufacture.
(2) A firearm may not be deemed defective in design or
manufacture on the basis of its potential to cause
serious bodily injury, property damage, or death when
discharged legally or illegally.

8

Notwithstanding any provision of law to the
F.
contrary, no manufacturer or seller of a firearm shall
incur any liability for failing to warn users of the
risk that:
(1) A firearm has the potential to cause serious bodily
injury, property damage, or death when discharged
legally or illegally.
(2) An unauthorized person could gain access to the
firearm.
(3)

A cartridge may be in the chamber of the firearm.

(4) The firearm is capable of being fired even with the
ammunition magazine removed.
G.
The provisions of this Section shall not apply to
assault weapons manufactured in violation of 18 U.S.C.
§ 922(v).
LA. REV. STAT. ANN. § 9:2800.60. No Louisiana court has addressed
the scope or proper interpretation of this statute.4 The correct
interpretation of subsection (B) is at issue here.
3. STATUTORY INTERPRETATION
“A

federal

court

sitting

in

diversity

applies

state

substantive law, including the state’s . . . method of statutory
interpretation.” Weeks Tractor, 784 F. Supp. 2d at 647 (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Keenan v.

In Morial v. Smith & Wesson Corporation, the Louisiana Supreme Court vacated
and set aside the trial court’s determination that § 9:2800.60 was
unconstitutional. 00-1132, p. 26 (La. 4/3/01); 785 So. 2d 1, 19. Because the
Supreme Court determined that the defendants’ exception of no right of action
should be granted in light of Louisiana Revised Statute § 40:1799, thereby
dismissing the plaintiffs’ action, the Court did not have to directly address
the constitutionality of § 9:2800.60. Id.

4

9

Donaldson, Lufkin & Jenrette, Inc., 529 F.3d 569, 572 (5th Cir.
2008)).
To determine Louisiana law, we look to the final
decisions of the Louisiana Supreme Court. In the absence
of a final decision by the Louisiana Supreme Court, we
must make an Erie guess and determine, in our best
judgment, how that court would resolve the issue if
presented with the same case. In making an Erie guess,
we must employ Louisiana’s civilian methodology, whereby
we first examine primary sources of law:
the
constitution, codes, and statutes.
In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.
2007) (citations omitted).
Pursuant to Louisiana Civil Code article 9, “[w]hen a law is
clear and unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further
interpretation

may

be

made

in

search

of

the

intent

of

the

legislature.” LA. CIV. CODE ANN. art. 9. In other words, a court’s
inquiry stops “if the statutory language is unambiguous and ‘the
statutory scheme is coherent and consistent.’” Robinson v. Shell
Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 240 (1989)) (citing Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253-54 (1992)).
On the other hand, when a statute is ambiguous, meaning
“[w]hen the language of the law is susceptible of different
meanings, it must be interpreted as having the meaning that best
conforms to the purpose of the law.” LA. CIV. CODE ANN. art. 10. To
interpret a statute, courts must “ascertain and enforce the intent
10

of the Legislature in enacting the statute.” Sultana Corp. v.
Jewelers Mut. Ins. Co., 03-0360, p. 3 (La. 12/3/03); 860 So. 2d
1112, 1115 (citing SWAT 24 Shreveport Bossier, Inc. v. Bond, 001695, p. 11 (La. 6/29/01); 808 So. 2d 294, 302 (citing Stogner v.
Stogner, 98-3044, p. 5 (La. 7/7/99); 739 So. 2d 762, 766; State v.
Piazza, 596 So. 2d 817, 819 (La. 1992))). A law’s meaning “is
determined by considering the law in its entirety and all other
laws

concerning

the

same

subject

matter

and

construing

the

provision in a manner that is consistent with the express terms of
the statute and with the obvious intent of the lawmaker enacting
it.” Sultana Corp., 860 So. 2d at 1116 (citing In re Succession of
Boyter, 99-0761, p. 9 (La. 1/7/00); 756 So.2d 1122, 1129; Stogner,
739 So. 2d at 766).
“Courts should give effect to all parts of a statute and
should not adopt a statutory construction that makes any part
superfluous or meaningless, if that result can be avoided” and
courts must presume “that every word, sentence or provision in a
statute was intended to serve some useful purpose, that some effect
be given to each such provision, and that the Legislature used no
unnecessary words or provisions.” Sultana Corp., 860 So. 2d at
1116, 1119 (citing Langlois v. E. Baton Rouge Par. Sch. Bd., 992007, p. 5 (La. 5/16/00); 761 So. 2d 504, 507; Boyter, 756 So. 2d
at 1129; Bunch v. Town of St. Francisville, 446 So. 2d 1357, 1360
(La. App. 1 Cir. 1984)); see also City of New Orleans v. La.
11

Assessors’ Ret. & Relief Fund, 05-2548, p. 20 (La. 10/1/07); 986
So. 2d 1, 17, on reh’g (Jan. 7, 2008) (“courts are bound, if
possible, to give effect to all parts of a statute and to construe
no sentence, clause, or word as meaningless and surplusage if a
construction

giving

force

to,

and

preserving,

all

words

can

legitimately be found”) (citations omitted).
Ultimately, “where a literal interpretation would produce
absurd consequences, the letter must give way to the spirit of the
law and the statute construed so as to produce a reasonable
result.” Sultana Corp., 860 So. 2d at 1116 (quoting First Nat’l
Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La. 2/20/95);
650 So. 2d 1148, 1153 (quoting Smith v. Flournoy, 115 So. 2d 809,
814 (La. 1959))).
Nonetheless, “[t]he starting point in the interpretation of
any statute is the language of the statute itself.” Sultana Corp.,
860 So. 2d at 1116 (citing Touchard v. Williams, 617 So. 2d 885,
888 (La. 1993)).
Accordingly,

the

exact

language

of

§

9:2800.60(B)

bears

repeating:
No firearm manufacturer or seller shall be liable for
any injury, damage, or death resulting from any shooting
injury by any other person unless the claimant proves
and shows that such injury, damage, or death was
proximately caused by the unreasonably dangerous
construction or composition of the product as provided
in R.S. 9:2800.55.5
“A product is unreasonably dangerous in construction or composition if, at
the time the product left its manufacturer’s control, the product deviated in
5

12

B. ANALYSIS
1. IS SUBSECTION (B) AMBIGUOUS?
If subsection (B) is read literally, Plaintiff maintains that
other sections of the statute would be rendered superfluous. Rec.
Doc. 151-1 at 13-15 (arguing that references to design defect
claims and failure to warn claims would be rendered meaningless;
subsection

(C),

which

provides

that

manufacturers

who

have

transferred a firearm shall not be liable for the actions of a
person who uses the firearm in an unlawful or negligent manner,
would be superfluous because that type of liability would never
arise from the unreasonably dangerous construction or composition
of a firearm; subsection (D), which “precludes claims for certain
design decisions,” would be superfluous if subsection (B) already
precluded all design defect claims; subsection (E) explicitly
refers to design defect claims; and subsection (F) explicitly
refers to failure to warn claims).
Defendant

responds

that

subsection

(B)

applies

only

in

situations in which a person is shot by a third party, while the
remaining subsections apply to different or broader circumstances.
Rec. Doc. 155 at 9. For example, Defendant argues that subsection
(C) applies only to situations in which a firearm is “transferred”

a material way from the manufacturer’s specifications or performance standards
for the product or from otherwise identical products manufactured by the same
manufacturer.” LA. REV. STAT. ANN. § 9:2800.55.

13

by a gun manufacturer or seller and is therefore intended to
preclude “negligent entrustment claims against manufacturers and
sellers of firearms where the sale was authorized by law.” Id.
Defendant further argues that subsections (D), (E), and (F) limit
claims “in all types of firearms cases, regardless of the specific
factual circumstances at issue. For example, if the injured party
shot herself . . . .” Id. at 10-11 (emphasis in original).
A statute is ambiguous if it is reasonably susceptible to two
or more interpretations. See LA. CIV. CODE ANN. art. 10. Here,
Defendant argues that subsection (B) applies only in situations in
which a potential plaintiff is shot and injured by a third person,
because the subsection provides that firearm manufacturers and
sellers shall not be liable for any injury “resulting from any
shooting injury by any other person unless . . . .” § 9:2800.60(B)
(emphasis

added).

However,

this

language

may

reasonably

be

interpreted in two ways. First, in accordance with Defendant’s
interpretation,

the

language

may

limit

subsection

(B)

to

situations in which the potential plaintiff is shot by someone
“other”

than

the

manufacturer,

seller,

or

him

or

herself.

Alternatively, the language may limit subsection (B) to situations
in which the potential plaintiff is shot by someone “other” than
the manufacturer or seller. If Defendant’s interpretation is used,
then other subsections may not be superfluous—they would simply
apply to a different or broader set of factual circumstances. If
14

the latter interpretation is used, then Plaintiff is arguably
correct that other subsections are rendered superfluous. In any
event,

because

the

“other”

language

in

subsection

(B)

may

reasonably be interpreted in two or more ways, it is ambiguous.
2. DOES A LITERAL INTERPRETATION OF SUBSECTION (B) LEAD TO
AN ABSURD RESULT?
Because subsection (B) is ambiguous, the Court may consider
legislative intent without determining whether or not a literal
interpretation would lead to absurd consequences. Nonetheless,
because

this

legislative

argument
intent,

may

it

help

will

be

the

Court

considered

to

decipher

here.

the

Plaintiff

maintains that a literal interpretation would lead to an absurd
result because it would allow manufacturing defect claims, “which
are likely to affect only a small percentage of firearms, while
precluding design defect and failure to warn claims that are likely
to affect a greater number of firearms and endanger a significantly
larger number of people.” Rec. Doc. 151-1 at 17. In other words,
“no matter how poorly a firearm is designed,” an injured person
could not bring a cause of action against the manufacturer if the
firearm
Plaintiff

met

the

manufacturer’s

summarizes,

“[t]he

specifications.

legislature

intended

Id.
to

at

19.

protect

firearm manufacturers and sellers from claims based on the improper
use of a properly designed and manufactured firearm, not the proper

15

use of an improperly designed and manufactured firearm.” Id. at 17
(emphasis in original).
Defendant responds that limiting claims arising from a thirdperson shooting does not lead to an absurd or unreasonable outcome.
Rec. Doc. 155 at 6.
All too often when one person handling a firearm shoots
another, the gun-handler claims that the firearm
accidentally discharged or that the trigger was not
pulled. That is true even where, as in this case, the
post-incident inspections and testing by both retained
and independent firearm experts yield the same result,
i.e., that the firearm would only fire when the trigger
was pulled. Without the limitation of [sub-section (B)],
however, the injured party would be undeterred from
filing a product liability lawsuit against the
manufacturer alleging that a “design defect” was somehow
responsible for her injury.
Id. (emphasis in original). Defendant continues, “if a design
defect claim were to be accepted by a jury (even though the alleged
accidental discharge with the firearm could not be replicated),
the result would essentially impose regulation prohibiting an
otherwise

permissible

design

of

the

firearm—i.e.,

piecemeal

regulation that circumvents the legislative process.” Id. at 7
n.5.

Plus,

Defendant

maintains

that

if

a

claim

against

the

manufacturer is barred by subsection (B), the injured party may
nevertheless pursue the person who negligently handled the gun.
Id. at 7 n.6.
Despite

Plaintiff’s

argument,

it

is

possible

that

the

Louisiana legislature would want to dramatically restrict the

16

types of claims that could be brought against gun manufacturers
and sellers. If Defendant’s interpretation of subsection (B) is
adopted, the statute would not bar all design defect and failure
to warn claims, as Plaintiff fears. However, if the alternative
interpretation is used, such claims would be precluded in all
situations.
Defendant’s reasoning, reproduced in the block quotation
above, is nevertheless flawed. Defendant argues that precluding
these claims when a third-person shooter is involved is reasonable
because the third-person shooter will often claim that the gun
accidentally discharged. Is it not just as likely that a potential
plaintiff who shot him or herself would also claim that the gun
accidentally discharged? In fact, would he or she not be more
likely to make that argument simply because he or she would want
to hold someone else liable? If so, why would the legislature only
preclude these types of claims when a third-person shooter is
involved? Would it not be just as reasonable to assume, based on
Defendant’s reasoning, that the legislature would preclude these
claims in all situations? In other words, would the legislature
not have used the alternative interpretation of subsection (B),
the interpretation assumed by Plaintiff and that may render the
remaining provisions of § 9:2800.60 superfluous?
There are also problems with Defendant’s argument that an
injured

person

whose

product

liability
17

claims

are

barred

by

subsection (B) may nevertheless pursue the shooter for negligence.
If

a

gun

was

defectively

designed

and

actually

discharged

accidentally, or if the shooter properly handled the weapon but
was unaware of some risk because of the manufacturer’s failure to
adequately warn, would the injured person succeed in a suit against
the shooter? Defendant’s argument is based on the false premise
that a gun never discharges accidentally unless it was negligently
handled by the shooter.6 The Court declines to accept that premise.
Ultimately, if the Court rejects Defendant’s interpretation
of

subsection

(B),

and

even

if

the

Court

accepts

that

interpretation, a literal application of the statute could lead to
absurd results. Before making that determination, however, the
Court will consider the legislative intent and history of §
9:2800.60.
3. WHAT WAS THE LEGISLATIVE
SUBSECTION (A)?

INTENT,

AS

EVIDENCED

BY

According to Plaintiff, the statute was intended only to
preclude

claims

against

designed

firearms,

but

firearm
to

manufacturers

allow

claims

when

for

“properly”

firearms

are

unreasonably dangerous, as prescribed by the LPLA. Rec. Doc. 1511 at 8. (citing § 9:2800.60(A)).

In fact, defense counsel essentially made this argument during closing
arguments when he stated that virtually every injury could be prevented if gun
handlers abided by the general rules of gun safety. Notably, defense counsel
did not argue that all injuries could be so prevented.
6

18

Defendant

responds

that

subsection

(A),

the

“general

preamble,” does not preclude application of the more specific
subsection (B). Rec. Doc. 155 at 8.
According to general rules of statutory interpretation, “if
there is a conflict, the statute specifically directed to the
matter at issue must prevail as an exception to the statute more
general in character.” Oubre v. La. Citizens Fair Plan, 11-97, p.
12 (La. 12/16/11); 79 So. 3d 987, 997 (citations omitted). Further,
“[i]t is a cardinal rule of statutory construction that the
preamble of an act of the legislature is not part of the law, and
it cannot be utilized to discern the intent of the legislature
where no doubt exists as to the meaning of the statute.” State v.
Barbier,

98-2923,

p.

5

(La.

9/8/99);

743

So.

2d

1236,

1239

(citations omitted) (emphasis added).
Because subsection (B) is ambiguous (i.e. “doubt exists” as
to

its meaning), the Court may consider subsection (A), the

“general preamble,” to determine legislative intent. Plus, even
though

subsection

(B)

is

more

specific

than

subsection

(A),

regardless of the interpretation ultimately adopted by the Court,
subsection (A) may help the Court determine which interpretation
was intended.
Pursuant to subsection (A), the LPLA was not intended “to
impose liability on a manufacturer or seller for the improper use
of a properly designed and manufactured product.” This sentence
19

suggests that the statute is merely clarifying that when a gun is
“properly designed and manufactured,” a person injured by a gun
may not sue the manufacturer or seller for his or her injuries.
Thus, the sentence suggests that the legislature did not intend to
preclude liability when a gun is

not

“properly designed and

manufactured.” However, the second sentence of subsection (A)
undermines this intent. In it, the legislature “declares that the
manufacture and sale of firearms and ammunition by manufacturers
and dealers, duly licensed by the appropriate federal and state
authorities,

is

lawful

activity

and

is

not

unreasonably

dangerous.” § 9:2800.60(A) (emphasis added). Read literally, this
sentence provides that, as long as a gun manufacturer or seller is
properly licensed, then the manufacture and sale of firearms is
not unreasonably dangerous, i.e. does not expose the manufacturer
or seller to liability under the LPLA. See § 9:2800.54(A) (“the
manufacturer of a product shall be liable to a claimant for damage
proximately caused by a characteristic of the product that renders
the product unreasonably dangerous when such damage arose from a
reasonably anticipated use of the product by the claimant or
another person or entity”) (emphasis added). If that was the
legislature’s intent, though, the rest of § 9:2800.60 would be
superfluous—it would be unnecessary to specifically limit the
scope of the LPLA as to gun manufacturers and sellers if the intent
was to entirely preclude application of the LPLA to these actors.
20

It would be more reasonable to assume that the legislature intended
to say that the manufacture and sale of firearms by those duly
licensed, in and of itself, is not unreasonably dangerous. In any
event, because there are two or more reasonable interpretations,
the meaning of subsection (A) is also ambiguous.
4. WHAT IS THE LEGISLATIVE HISTORY?
Section 9:2800.60 was originally introduced as House Bill
1639 on March 29, 1999. OFFICIAL JOURNAL
THE

STATE

OF

OF THE

HOUSE

OF

REPRESENTATIVES

OF

LOUISIANA, First Day’s Proceedings, p. 181 (March 29,

1999).7 On April 8, 1999, the House voted overwhelmingly to pass
an amended version of the bill. Id. at Eighth Day’s Proceedings,
p. 376.
The bill was introduced to the Louisiana Senate and referred
to the Committee on Judiciary A on April 12, 1999. LOUISIANA STATE
SENATE, Daily Journals for the 1999 Regular Session, April 12, 1999,
at pp. 5, 13.8 On May 18, 1999, the Judiciary Committee reported
the bill favorably. Id. at May 18, 1999, p. 44.9 During this
meeting, the following exchange took place:
Senator [John] Hainkel asked Senator Jay Dardenne, “In
regards to Section B, would you see if it would do any
damage to put a defective design exclusion? I would like
to have your comments before it comes before the full
These
documents
are
available
at
http://house.louisiana.gov/H_Journals/H_Journals_All/1999_Journals/1999_RSJou
rnals.htm.
8
These
documents
are
available
at
http://senate.la.gov/sessioninfo/Journals/1999/.
9 Defendant provided the minutes from this meeting to the Court. See Rec. Doc.
155-1.
7

21

senate.” Senator Dardenne agreed to do so and said, “I
think that we ought to have to try and preserve causes
of action that might be appropriate for malfunctions.”
Rec. Doc. 155-1 at 7.
On June 14, 1999, through floor amendments, subsection (B)
was recommended and rejected. Senate Journals, at June 14, 1999,
p. 12. Eventually, the bill was passed. Id. at p. 14. However, on
June 20, 1999, the House refused to concur in the amendments; it
further recommended that House and Senate committees confer on the
matter. Id. at June 20, 1999, p. 5. The Senate appointed a
committee the same day. Id. at p. 73. The following day, the
committee

recommended

that

certain

amendments,

including

the

amendment adding subsection (B), be adopted. Id. at June 21, 1999,
p. 19.10 Ultimately, the bill was passed in its current form.
The

exchange

between

Senators

Hainkel

and

Dardenne

demonstrates that the legislature considered excluding design
defect claims under subsection (B). The fact that the legislature
considered

excluding

these

claims

and

ultimately

passed

legislation that may reasonably be interpreted in a way to exclude
these claims is persuasive evidence that the legislature intended
to exclude these claims.
Assuming that the legislature so intended, this Court must
determine if subsection (B) is properly interpreted to apply to

After inquiring with the Louisiana State Senate, the Court was informed that
conference committee notes, minutes, or recordings from this June 1999 meeting
are not available.
10

22

all claims arising from a shooting or to only those claims arising
from a third-person shooting. While the former interpretation
seems more likely to the Court, based on a logical reading of the
paragraph and the fact that the legislature did not say “injury by
any third person” instead of “injury by any other person,” this
interpretation would render

other subsections superfluous. Of

course, this Court “should not adopt a statutory construction that
makes any part superfluous or meaningless, if that result can be
avoided.” Sultana Corp., 860 So. 2d at 1116 (citations omitted).
The

interpretation

offered

by

Defendant

does

not

render

the

remainder of the statute superfluous.
So, assuming that the legislature intended to exclude design
defect claims under subsection (B) and that it would approve of
Defendant’s

interpretation

of

that

subsection,

we

must

now

consider whether or not the subsection produces absurd results.
Recently, the Louisiana Supreme Court determined that, even
though

the

language

included

in

part

of

the

Louisiana

Administrative Code was not ambiguous per se, the interpretation
adopted by the lower court produced an absurd consequence and
therefore could not be maintained. Gulley v. Hope Youth Ranch, 161112, p. 6 (La. 3/15/17); 2017 WL 1034494, at *10. The Court was
interpreting the following sentence:
its

underlying

pathophysiology

are

“The topography of pain and
amenable

to

stimulation

coverage (the entire painful area has been covered) . . . .” Id.
23

at *8 (quoting LA. ADMIN. CODE tit. 40, pt. I, § 2113). The Medical
Director,

Office

of

Workers’

Compensation,

and

lower

court

interpreted the sentence to mean that stimulation therapy was
available only if it would relieve “every bit” of the claimant’s
pain. Id. at *9. That meant that in cases like the plaintiff’s,
where he suffered multiple injuries to different parts of his body,
the therapy would be precluded. Id. at *9-10. This was an absurd
result, according to the Louisiana Supreme Court. Id. at *10.
Consequently,
Compensation

the

Court

hearing

found

officer

that

the

misapplied

Office
the

of

Workers’

language

of

the

provision and reversed the lower court’s ruling affirming the
decision to deny the therapy to the plaintiff. Id. at *11.
Here,

application

of

subsection

(B)

using

Defendant’s

interpretation leads to absurd consequences. Defendant offers no
reasonable explanation, and this Court cannot imagine one, for
limiting the design defect claims of a person injured by a thirdparty but allowing such claims if brought by a person who was
injured by him or herself (or the manufacturer or seller, in the
unlikely circumstance that the manufacturer or seller was also the
shooter). If the goal was to limit frivolous claims against gun
manufacturers and sellers, as Defendant claims, why would the
legislature limit subsection (B) in this arbitrary way? During
oral

argument,

interpretation

defense
would

counsel
lead

to
24

admitted

that

“inconsistent”

its

preferred

results,

but

nevertheless maintained that precluding all but manufacturing
defect claims when a third-person shooter is involved was the
legislature’s decision and is not, in and of itself, absurd.
On

the

other

interpretation,

hand,

which

if

the

would

Court

uses

effectively

the

alternative

eliminate

all

but

manufacturing defect claims against firearm manufacturers and
sellers, then aspects of § 9:2800.60 would be rendered superfluous
(particularly subsections (D), (E), and (F))
At

the

end

of

the

day,

under

either

interpretation,

application of the statute would lead to absurd consequences. If
a

gun

manufacturer

designed

a

gun

that

routinely

discharged

accidentally, a person injured by a third party because of that
defect would not be permitted to sue the manufacturer under the
LPLA

as

long

manufacturer’s

as

the

gun

was

specifications.

manufactured
Those

according

specifications

to

could

the
be

designed by a three-year-old and the gun manufacturer could not be
held liable. This is absurd.11 See, e.g. La. State Bd. of Med.
Examiners v. Bertucci, 593 So. 2d 798, 801 (La. Ct. App. 4th Cir.
1992) (finding absurd a party’s interpretation of a statute to
mean that as long as he could show that he was presently complying
with the law, his medical license could not be revoked); United

The Court recognizes that gun manufacturers and sellers are subject to various
state and federal regulations and would likely be held responsible for any
violation of those regulations. However, those regulations would provide no
redress for the Louisiana citizen bound by the LPLA and injured because of a
design defect.
11

25

States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (“even
when the plain meaning did not produce absurd results but merely
an unreasonable one ‘plainly at variance with the policy of the
legislation as a whole’ this Court has followed [the purpose of
the legislation], rather than the literal words”) (footnotes and
citations omitted).
Therefore, neither interpretation makes sense.
“When the language of the law is susceptible of different
meanings, it must be interpreted as having the meaning that best
conforms to the purpose of the law.” LA. CIV. CODE ANN. art. 10.
Subsection (A) and the committee minutes from May 18, 1999 indicate
that § 9:2800.60 was designed to “make[] it clear” that the LPLA
“was never designed to punish a manufacturer or seller for the
improper use of a properly designed and manufactured product.”
Rec. Doc. 155-1 at 5. It was “aimed at making it real clear in
existing law that product liability law was never intended for
someone to come in and make additional regulations on guns and
clearly never intended to make it possible for someone to sue a
gun maker for [] making a legal product.” Id. Senator Steve Scalise
explained that “gun owners could still sue a gun manufacturer if
a weapon is defective. But if someone misuses a gun and causes an
accident, or uses a gun to commit a crime, the manufacturer should
not be held responsible.” Id. at 6. At no point during this
discussion or in subsection (A), the “general preamble,” did the
26

legislature state that the purpose of the law was to limit product
liability claims against gun manufacturers and sellers to claims
for manufacturing defect.
Granted, it was after the introduction of the legislation
during the Senate Judiciary committee that Senator Hainkel asked
Senator

Dardenne

about

excluding

design

defect

claims

under

subsection (B). Id. However, Senator Dardenne replied that they
should “try and preserve causes of action that might be appropriate
for malfunctions.” Id. A “malfunction” is defined as both to “fail
to

operate

manufacturing

in

the

defect)

normal
and

or

“to

usual
function

manner”

(suggesting

imperfectly

or

a

badly”

(suggesting a design defect). WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY
(1984). All we know is that subsection (B), though originally
rejected as an amendment, was thereafter adopted and enacted as
part of § 9:2800.60. Its adoption, however, presumably did not
signal a change in the purpose of the law, reflected in subsection
(A), merely to clarify existing law. That purpose is not furthered
by precluding design defect claims against gun manufacturers. See,
e.g. McLane S., Inc. v. Bridges, 11-1141, pp. 8-9 (La. 1/24/12);
84 So. 3d 479, 485 (“In order for a court to find a literal
application results in ‘absurd consequences,’ ‘there must be a
determination by the court that the specific application at issue
arising from the literal wording would, if judicially enforced,
produce a factual result so inappropriate as to be deemed outside
27

the ‘purpose’ of the law.’”) (quoting P. Raymond Lamonica and Jerry
G. Jones, 20 Louisiana Civil Law Treatise:

Legislative Law and

Procedure, § 7.4 (2011 ed.)). Therefore, Plaintiff may bring a §
9:2800.56

design

defect

claim

against

Defendant

under

§

9:2800.60(B).
New Orleans, Louisiana, this 16th day of May, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

28