Panel Asked to Revive Wrongful Death Case Over Gun Trigger

HOUSTON (CN) – A shot from a Remington rifle killed a boy and landed his older brother in prison. Arguing Remington concealed a trigger defect, their father asked a Fifth Circuit panel Wednesday to reinstate wrongful death claims against the gun maker.

Remington rifle cartridges are displayed at the 35th annual SHOT Show in Las Vegas on Jan. 15, 2013. (AP Photo/Julie Jacobson, File)

Sitting on a couch in the living room of his Mississippi home in June 2011 with a Remington rifle in his lap, Zachary Stringer, then 15, got up and the gun fired. The bullet hit his 11-year-old brother Justin Stringer in the head and killed him.

Police arrested Zachary on murder charges six days later, the day of Justin’s funeral.

Though Zachary maintained he never touched the trigger, a forensic scientist at the Mississippi Crime Laboratory determined the rifle was in “good working order.”

Her testimony led a jury to convict Zachary of manslaughter charges and he was sentenced to 20 years in prison. Relying on the same testimony, the Mississippi Supreme Court upheld the conviction.

Attorneys for Zachary and Roger Stringer, the boys’ father, told the Fifth Circuit panel at the Houston federal courthouse Wednesday that because such forensic exams are considered the “gold standard” of investigations, Roger accepted the state examiner’s conclusion the gun was not defective.

But with one son in prison and another dead, Roger fixated on the rifle, which he’d bought as a Christmas present for Zachary. Questions replayed in his mind: Could the forensic scientist be mistaken? Is Zachary telling the truth?

He checked Remington’s website in March 2015 and found the company had issued a recall in April 2014 for the same Remington Model 700 with an X-Mark Pro brand trigger, including this ominous warning: “STOP USING YOUR RIFLE. Any unintended discharge has the potential for causing injury or death.”

Remington said in the recall notice that too much of a bonding agent might have been applied in assembling the triggers.

Roger and Zachary filed a wrongful death-product liability lawsuit against Remington in March 2018. Under Mississippi law, they had three years to bring such claims from the day Justin died.

But their attorneys argued that because Remington had fraudulently concealed anything was wrong with the rifles for years, despite numerous reports of similar random discharges, their claims should be tolled.

U.S. District Judge Keith Starrett granted Remington’s motion to dismiss with prejudice in July 2018, finding Roger had not done due diligence to discovery any fraud.

At Wednesday’s hearing, the Stringers’ attorney Jennifer Willis said there had been reports of Remington rifles misfiring as early as 2006, but the company released a statement in 2010 saying the Model 700 had been free of any defects since it was first produced.

“This is still on the internet. I downloaded this yesterday,” she said.

But U.S. Circuit Judge Andrew Oldham, a Donald Trump appointee, put her on the defensive.

“Do you have a case, a Mississippi case would be great, but from anywhere in the country that found fraudulent concealment exists after a public recall?” he asked.

“I don’t think there is one. And it’s not that I didn’t look,” Willis said. But she said Remington should have done more to get the word out.

“Sticking it on your website doesn’t work,” she added. She said the gun maker could have sent out mailers, and run magazine and newspaper ads.

Remington’s attorney, Andrew Lothson with the Chicago firm Swanson, Martin and Bell, played up Oldham’s question.

“There’s not a case in this country that following a publicly announced recall there can be fraudulent concealment,” he said.

But U.S. Circuit Judge Jacques Wiener, a George H.W. Bush appointee, asked why Remington had not come forward about problems with the rifle during Zachary’s criminal trial.

“I’ve shot Remington all my life,” said the 85-year-old Weiner. “With the possible exception of Winchester, it has the best reputation in the world. For them not to have mentioned anything during Zachary’s criminal trial is a significant factor in this case.”

Lothson said Remington had no duty to contact the Stringers. He said because Zachary himself didn’t believe the state forensic examiner’s conclusion, the Stringers had a duty to investigate the gun.

Willis, the Stringers’ attorney, told the panel even if the statute of limitations had expired on Roger’s claims, they did not on Zachary’s, because under Mississippi law the clock did not start on them until he turned 18.

Lothson said that argument should be excluded because it was being raised for the first time, a fact the Stringers’ counsel conceded.

In closing arguments for the Stringers, their other attorney Gary Gambel played up Remington’s reputation for quality firearms, and said that reputation, coupled with the Stringers’ assumption that the state forensic scientist did a thorough investigation, should toll the family’s claims.

“Remington is an icon of American guns. Who would think they would put a defective gun on the market and leave it there for years?” said Gambel, a partner in the New Orleans firm Murphy, Sloss, Gambel & Tompkins.

U.S. Circuit Judge James Graves, a Barack Obama appointee, also sat on the panel, which did not say when they would issue a ruling.

Zachary was released from prison for good behavior in October 2016, five years into his sentence. Due to the numerous accounts of the Remington Model 700 spontaneously firing, he filed a motion with the Mississippi Supreme Court seeking to have his sentence vacated. The state high court granted his motion to pursue his claims before the criminal trial court.

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