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Where the Buck Stops: Court Ruling Finds CPSC Settlements 'Unreviewable'

By Christopher R. Brewster

On Sept. 30, 2004, the Federal District Court for the Eastern District of Pennsylvania (Kelly, J.) dismissed an attempt to challenge a settlement reached by the U.S. Consumer Product Safety Commission (“CPSC”). Jerome Mahoney and Rebecca G. Mahoney v. U.S. Consumer Product Safety Commission, U.S. D.C. (E.D. Pa.), Civil Action No. 04-1833, Sept. 30, 2004. The 2001 administrative action against Daisy Manufacturing Company (“Daisy”), the manufacturer of the Daisy air rifle, is one of its most controversial cases. In that action, announced by outgoing Chairman Ann Brown over the vigorous dissent of Commissioner Mary Sheila Gall, the CPSC charged that some 7.5 million Daisy Powerline Airguns were defective due to alleged design defects that created a “substantial product hazard” under Section 15(a)(2) of the Consumer Product Safety Act and that the guns presented a “substantial risk of injury” to children under Sections 15(c)(1) and (c)(2) of the Federal Hazardous Substances Act. The complaint alleged, among other things, that design defects could cause BBs to become lodged in the gun's magazine, even though the gun might appear to be empty. As a consequence, the Commission stated, it is reasonably foreseeable that consumers, most of whom are children or young adults, are likely to be less careful when handling the gun, and that BBs are “likely to be fired at and strike the consumer or another person in the vicinity.”

The 2001 complaint was inspired, at least in part, by the tragic case of Tucker Mahoney, a 16-year-old boy who died from injuries sustained when a friend, believing the weapon to be empty, pointed a Daisy air rifle at Tucker's head and discharged it. According to available reports, the boys had shaken the gun, heard nothing inside, and dry-fired it several times before the fatal accident. Tucker Mahoney's parents brought suit against Daisy and achieved a substantial settlement.

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