SEATTLE (CN) – Parents of a boy shot and killed while his mother was unloading a rifle asked the 9th Circuit to revive their defamation claim against Remington for suggesting the parents, and not a defective trigger mechanism, were at fault.
The tragedy occurred while Richard and Barbara Barber were on a hunting trip in Montana with their son, Gus, on Oct. 23, 2000.
Barbara says her Model 700 Remington bolt-action rifle unexpectedly discharged, firing a fatal shot at Gus, even though she did not touch the trigger.
The Barbers say the rifle’s Walker fire-control system was defective and caused the shot that killed their son. They claim that Remington’s knowledge of its unsafe trigger system dates back to 1948, but that the company opted not to replace the defective mechanism since it doing so would have cost an extra 5.5 cents per rifle. Remington had settled with the couple in 2002, but the parties became entangled in more litigation when the Barbers appeared in a 2010 documentary on CNBC called “Remington Under Fire.”
In video and written responses to the program, Remington said the Model 700 that killed Gus could not have fired unless Barbara pulled the trigger, or unless it was improperly modified or improperly maintained.
Richard and Barbara Barber filed a federal defamation complaint against Remington Arms; its successor, Sporting Goods Properties; and their alter ego, E.I. du Pont de Nemours in 2012.
The Barbers say Remington lied in claiming that it has never been able to duplicate an unintended discharge without a trigger pull with properly maintained rifles.
U.S. District Judge Dana Christensen in Montana dismissed the suit, however, finding in 2013 that the previous settlement barred the claim.
“The Barbers insist that the present claims did not ‘grow out of the accident’ because they concern statements made by Remington in 2010,” Christensen wrote. “The court disagrees. Even though the statements were published several years after the previous litigation and settlement, they grew directly out of the accident and concern the same factual and legal issues that were in dispute in 2001 and 2002.”
The Barbers’ attorney, Richard Ramler, appeared before a three-judge panel of the 9th Circuit to push for a reversal. He declined to speak in an interview about the pending litigation but told the court Monday that the 2002 release did not give Remington “a license to defame the Barbers in perpetuity.”
Ramler said the defamation claim centers on statements Remington made in 2010 in response to the CNBC special and should be viewed as a separate incident, unrelated to the settlement release.
Judge Andrew Kleinfeld told Ramler that, if you sign a release in a car accident and then you have another accident with the same people, then it would be a separate incident.
“This is not another incident,” Kleinfeld said. “Weren’t similar statements made by the defendant prior to the release?”
Ramler said he didn’t know if the Barbers could have made a defamation case at the time they signed the settlement.
The attorney also argued that Montana law bars the contractual release of a future tort.
Kleinfeld replied he thought that was only for things like medical releases, in case a doctor wants a patient to release all claims before being treated.
“I thought they did not apply that rule to this sort of release,” Kleinfeld said.
Ramler said no case involving the rule had ever been heard by the Montana Supreme Court.
Judge Morgan Christen asked Ramler to explain why he thought the defamation was a new tort and not covered under a release of all claims.
Ramler said the 2010 statements were not a response to the accident in 2000, but in response to Richard Barber’s comments on CNBC.
“They made the statements in 2010 to undercut Mr. Barber’s credibility,” he said. “Remington is free to express an opinion. They are not free to imply facts that are not true or to state facts that are not true. And that is what they’ve done in this case.”
James Vogts, representing Remington, said the statements that the rifle manufacturer made in 2010 repeated statements made in 2001. He said the comments were “plainly in the scope of the accident” and related solely to the condition of the Barbers’ firearm.
“The release just didn’t release claims growing out of the wrongful death action,” Vogts said. “It released claims growing out of the accident. And that’s an important distinction.”
Kleinfeld inquired about the “rule” for identifying a new tort.
Vogts didn’t have a definition, but said Remington’s comments were not new. He also said that Remington had a right to defend itself.
“Remington did not initiate this conversation in 2010,” Vogts said. “It was the plaintiffs that willingly went on national TV to renew a discussion about the accident, about the rifle. Remington simply responded, as it had a right to do.”
Vogts said if the court allowed the defamation claim to proceed, it could “chill Remington’s First Amendment rights.”
James Vogts and Richard Ramler had not responded to requests for comment at press time.
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