Soldier Given Second Shot at Suing Gun Maker

     (CN) – A soldier who was injured when his M2 machine gun exploded and a shell casing pierced his leg will get a chance to hone his federal lawsuit against the gun’s manufacturer.
     While Sean McMahon was on active duty in the U.S. Army, his M2 .50-caliber Browning machine gun exploded during a test firing at a base in Kunduz, Afghanistan.
     A shell casing pierced McMahon’s calf, and he underwent multiple surgeries to treat his fractured leg. He was also diagnosed with deep vein thrombosis, tinnitus, hearing loss and adjustment disorder as a result of the accident.
     McMahon sued the gun’s manufacturer, General Dynamics Corp., claiming the gun’s malfunction caused him physical and neuropsychological injuries.
     U.S. District Judge Kevin McNulty in New Jersey found that McMahon’s complaint is not barred by the combatant activities exception or political question doctrine, but that it did lack the specificity needed to survive a motion to dismiss.
     “Here, a U.S. serviceman asserts that a manufacturing defect at the defendant’s U.S. plant resulted in the production of a defective gun that injured him,” McNulty wrote. “Such a claim does not implicate government design specifications, battlefield operations, political questions or secret technology. Such a claim is the ordinary stuff of civil, and civilian, tort law.”
     The judge later added: “General Dynamics is seeking to avoid accountability to McMahon for actions that allegedly occurred in its own U.S. factory. If a plaintiff can establish that a defect in the manufacturing process of a U.S. manufacturer proximately caused his injuries, the combatant activities exception should not preclude liability.”
     While the parties agreed that something went wrong during the test firing, they did not agree on the cause.
     McNulty ruled that McMahon failed to specify the gun’s defect in his complaint. He partially granted the gun maker’s motion to dismiss, “solely on grounds of failure to plead with the specificity” required by law.
     “The complaint does not allege how the M2 deviated from any manufacturing standard or in what respect it was defective,” the judge wrote.
     However, given McMahon’s proficiency with the M2 and his inability to investigate the matter once he was injured, the court agreed to give him a chance to submit an amended complaint and proceed with discovery.
     “These circumstances do not prove, but tend to suggest, that the flaw was in the weapon, not in McMahon’s operation of it,” McNulty wrote. “Plaintiff believes discovery will reveal that the M2 was not manufactured properly. To be sure, McMahon’s theory relies to some degree on the process of elimination, rather than on positive evidence. It is hardly overwhelming, but it possesses some factual plausibility. Particularly in light of the information asymmetry between the parties, I would permit an amended complaint that pleaded such a claim to go forward so that discovery could be hand.”

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