Smith & Wesson Smart Gun Class Action Dismissed: Analysis

[00:00:00]today I want to talk about the latest update in a huge case that could have had huge upheaval for firearm sales in Canada now I also owe you guys an apology because I've been meaning to cover this one for forever it came out in March but I'm getting to it now so let's have a look this is the case of price and a bunch of other people against the Smith and Wesson company now what happens in this case is that they're suing over the Danforth shooting so what happened in that case is that a person with a Smith and Wesson firearm walked down the Danforth and shot at a bunch of people so let's see how the court describes it but we'll we'll talk about what this is what the lawsuit is and what the latest developments were so the tragic events giving rise to this proposed class action which events have come to be known as The Dan for shooting were that an M&P 40 and M&P stands for military and police which does not utilize authorized user or smart gun technology was stolen the M&P 40 came into the hands of fizal Hussein who during the evening of Sunday July 22nd 2018 walked along Danforth Avenue in Toronto Ontario and randomly shot and killed two persons and injured others some of whom were shot and some of whom were injured fleeing the active shooter scene the danforce shooting ended when after exchanging gunfire with police officers Mr Hussein used the M&P P40 to kill himself okay so this is a fairly heavy situation but what they're talking about with authorized user or smart gun technology is technology that limits the use of the gun to sort of people who are approved now this technology is not super popular in with firearm owners for a number of reasons uh one sometimes we lend each other our guns and so forth you know somebody comes up to you at the range and they're like hey that's a really cool gun can I shoot it and I'm like yeah absolutely why not but the other thing is that a lot of these Technologies I think all of these technologies that I've seen have big problems with reliability um as an example you know this is the firearm I go and or one of the firearms that I use for competition shooting I need it to work every single time um competition shooting is based on you know time and accuracy and so forth and a gun that works 95% of the time is a garbage gun you need it to work every time because if it fails then you've just blown your score now this is just competition shooting if I blow my score on a competition oh well no big deal I'll live and the live is the key thing because if you're talking about a firearm for defensive use such as a use that police might put it to then it needs to work work every time when you see the detail here about after exchanging gunfire with police officers if the police officers were unable to to exchange gunfire in that scenario because they had authorized user or smart gun technology that didn't work they might have been in a lot of trouble so that's why this is not super popular but this lawsuit was about trying to force and trying to hold Smith and lesson accountable for not putting this technology in basically every gun that they sold and so if successful you would see that basically every gun manufacturer would have to include this and that could be a real problem even Hunters don't want this cuz if you've got that shot lined up you've got the deer you that the shot on the deer the ideal shot might be available for two seconds right it's the deer you know sort of turns you get the perfect shot and then it catches you know catches wind of you it smells you and it runs away so if you are sitting there fiddling with the gun and trying to get this smart gun technology to work in those two seconds well you've just ruined your hunt Okay so they also wanted this certified as a class action so that they could all proceed together share the legal costs and then you know based on that they could then proceed to sue Smith and Wesson in sort of a more economical way and a way that might uh facilitate their litigation so this is about whether or not they get certification as a class action but it's also a little bit about whether they made good arguments so let's have a look so the court continues by way of an overview to satisfy the common issues Criterion part of seeking a class action the plaintiffs needed to establish that there is some basis in fact for a design negligence products liability cause of action as the discussion below will demonstrate this proof entails a great deal more than the assertion that the manufacturer of an inherently dangerous product does not have the right to manufacture an inherently dangerous article when a method exists of manufacturing the same article without risk of harm amongst other things the plaintiffs need to show some basis in fact that the M&P 40 has a design defect which is a vastly more difficult matter to prove than proving Smith and Wesson had already developed patents for a prototype of a gun with authorized user technology one of the arguments that the plaintiffs here were making and I previously covered their sort of first round on this case was that Smith and Wesson held a bunch of patents for smart gun technology but one of the issues is that having a patent doesn't actually mean anything I could go and patent all sorts of things but it doesn't mean that the invention that is being patented is necessarily L workable or cost effective or in some cases even possible you know you can patent things that might not actually work in practice so for phase two of the certification motion the plaintiffs did not profer evidence from an expert in firearm design this is going to be a big problem for the plaintiffs in this case and it cannot be inferred from the expert and observation evidence that the plaintiffs did profer that there is some basis in fact the allegation that the M&P 40 has a design defect in the immediate case the plaintiffs established some basis in fact that Smith and Wesson had the capability of Designing a prototype of a firearm with authorized user technology however there was no basis in fact evidence to show that there were any common issues about design negligence in the M&P 40 that was designed and then manufactured without authorized user technology so this is I mean this is one of the common things in court you don't just have to have a good argument you have to have evidence to support it and they brought a whole bunch of experts but they didn't bring the right experts they didn't bring experts in firearm design and we'll see a little bit about why there's um there's a common Trend in their experts and it really really blew up their case um well we'll talk about that we'll we'll discuss what selection criteria they used for experts and why it was a bad idea if they wanted to have a winning case so in the immediate case it cannot or can be or sorry can obviously be inferred that the M&P 40 creates a substantial risk of harm because it's a gun right um if you shoot someone with a gun they might die they they're likely to die um however it cannot be inferred that there is some basis in fact that the plaintiffs proposed alternative designs for an M&P for utilizing authorized user technology would have minimized that risk of harm at a reasonable cost you'll note that the provisos here it's not just minimizing the risk of harm it's also at a reasonable cost without impairing the utility of the M&P 40 for its intended use as a military and police weapon or even for just its use as a handgun for whatever purposes so it also has to not impair the utility and that's been the big problem with smart gun technology lots of people love the idea of hey this gun only works when I hold it the problem is is that people haven't loved actually using those guns and they haven't loved the fact that those guns typically are way more expensive than a gun without those so these have not been popular Technologies and especially when you're dealing with military or police the fail failure rate has to be zero it's got to be basically zero uh when you see military criteria for when they're testing out a new gun to see if it might be adopted they'll say okay you're going to shoot this gun 10,000 times and the allowed number of failures before this gun is removed from consideration will be something like one or two and that's it whereas these things have not been anywhere near that the other thing about military and police use is that police might have really good reasons to need to trade guns um they're often stored in like a central Armory the police you know and there have been police you know use of force incidences where for instance one officer is downed and another officer ends up picking up their gun not exactly something that um so for the those reasons these are not great they continue on in the immediate case and I'm skipping over a lot of this case just to get you the meat of it but I will link the full case in the description below if you want to read the parts I skipped over and check my homework so in the immediate case the plaintiffs have a public policy argument that all handguns should have the authorized user technology as a product standard now this sounds good right this sounds like a good thing for the plaintiffs and and it's actually as a lawyer Reading that I'm like oh this is death and the reason why is because public policy often isn't what the courts are doing the courts aren't lawmakers the courts are they adjudicate legal issues a public policy argument is one you take to Parliament not to the courts typically so they say but a public policy argument is not the same thing as a designed negligence cause of action against a handgun manufacturer who made design decisions to not incorporate authorized user technology in a handgun that it was manufacturing as a military and police weapon in the immediate case the plaintiffs offered pmic but not proof of the common issues Criterion and the preferable procedure Criterion these are two tests for certifying something as a class action it is a remarkable uh feature of the immediate case that unlike most if not all product Li AB ility class action certification measures uh or motions swi Smith and Wesson did not cause any expert evidence on the critical issue which in this case was handgun design I'll return to this remarkable feature in the discussion below but this aspect of the case does not alter the circumstance that the plaintiffs did not satisfy the very low standard of establishing some basis in fact for the common issues Criterion and for satisfying the preferable procedure CR Criterion so normally the the people responding it would call some evidence on this and Smith and Wesson made the decision they said we don't have to we've got the winning cards without without anything so we're not calling any evidence and um that's um it's a bold choice but it worked out for them here okay so let's uh let's have a look we're going to skip over all of this stuff well a lot of it because it's procedural but we are going to look at um this bit here so the plaintiffs delivered a supplementary motion record comprised of the following so an affidavit from najma Ahmed I don't know I might be mispronouncing that but she is involved in anti-gun activism she's a anti-gun um anti-gun activist the next is the affidavit from Ralph Blake Brown who is also an anti-gun activist um they note his main field of research is uh Canadian legal history and he's authoriz or authored numerous articles about guns and gun control in Canada and he's also someone who has repeatedly tried to cancel me on Twitter uh with very limited success but um yeah he uh he also scrubbed his Twitter before he testified in a different proceeding because yeah so again another anti-gun activist uh Mar a Chapman I don't know as much uh but his whose law practice focuses on patent infringement lawsuits I'm going to assume he's neutral cuz don't know him as much same thing with Peter Edmonson we'll assume he's neutral he's not name I recognize um they've got Pamela good retired Hoyer who during her 30-year career worked for the ministry of the Attorney General among other things she was a member of the ministry's guns and gangs initiative and legal council to the chief Farms officer of Ontario providing legal advice respecting the Firearms Act um we'll cutter the benefit of the doubt but I will not note that the uh Ontario CFO does not exactly have a great reputation within the firearm Community but we'll cut them you know cut them some slack uh they do have somebody who was a member of the US Marine Corps and a commissioned officer in the United States Army or US Army Reserve certified by the NRA as a pistol instructor okay and licensed to carry a concealed handgun so they've got somebody who is more familiar with Firearms that's good uh they've got an affidavit from somebody who worked for the center to prevent handgun violence and you've got another um you know JY young Kim Lee another person who has uh written extensively on gun violence particularly within ethnic urban communities in the United States articles about gun violence so another sort of firearm activist I'm just going to say this is not the suite of people that I would be looking for if I'm trying to run the case for the plaintiffs because you want to get people and what the court has said here is the court has said you needed somebody who was an expert in firearm design and you're not going to find an expert in firearm design among This Crew it just it seems like it's the wrong group so skipping on here we'll go to the negligence in design question uh in their factum the plaintiffs describe the theory of their case as follows this is how they think they should win the Essence to the cause of action is that Smith and Wesson was aware of the risks posed by lost and stolen handguns yet sold products in Canada without any safety devices mechanical or electronic to prevent unauthorized use safety devices were not included even though the company's products were frequently lost and stolen in Canada recovered at Canadian crime scenes and the subject of crime gun Traces by Ontario law enforcement agencies the agreement Smith and Wesson made with government authorities in the United States the patents obtained by Smith Wesson for authorized user technology and the actual sale of M&P 40 products in the United States with internal locking mechanisms all show that Smith and Wesson recognized the risk of unauthorized use and develop technology to make its products less susceptible to unauthorized use there is a basis in fact before the court for five proposed common issues all of which depend on the defendant conduct in exporting the handgun to Canada without including any device mechanical or electronic to address the risk of unauthorized use and the later theft and misuse of the handgun to cause devastating harm in the danforce shooting so the court says the predominant and fundamental concern or common issue in the immediate case is whether Smith and Wesson was negligent in designing the M&P 40 by failing to adopt authorized user technology so if they had found that they were negligent then essentially every gun in Canada would have had to later have authorized user technology because no gun dealer would want to sell without including these locks so you can see why all of the sort of anti-gun activists I mentioned who were uh cited would have been all over this one right cuz really it would have drastically reduced the number of firearms for sale in Canada um and just a lot of gun manufacturers would have said ah we're not dealing with Canada at all which I'm sure would have made th those folks very happy since this case is exclusively a design negligence case it is helpful to understand the law associated with negligence in design before analyzing whether there's some basis in fact to satisfy the common issues and preferable procedure Criterion in the immediate case so the underlying argument in a design negligence action is that a manufacturer has a duty of care not so a duty of care is an important part of negligence um do you owe a duty to somebody and usually a lot of the time this is fairly easy if I fail to shovel my walkway out front of my house and somebody slips and Falls did I have a duty of care to sort of the ordinary person who might walk on that walkway yes right um if I'm driving the car and I decide you know what I'm I just wonder if I could drive the car with my eyes closed well I owe a duty of care to other members of the roadway but let's say I'm in my house and you know I am sort of playing with my pen and somehow somebody you know I'm doing this on a live stream and somehow somebody out there in the universe sees this pen and has some sort of you know traumatic do I owe every person in the universe a duty in that you know no um the duty of care aspect is really to sort of limit the sphere of people who can sue you to those who might be sort of within the Ambit of who you should be worrying about when you're taking actions so um did they have a duty of care not to design a product negligently because the manufacturer should and can fairly be held responsible for the choices it makes that affect the safety of the product the manufacturer has a duty to make reasonable efforts to reduce any risk of life and limb that may be inherent in its design so this is now reasonable efforts reasonable does a lot of heavy lifting there because you're not required to make every effort right it certain things and if you think about making every effort at a certain point everything we deal with becomes completely unworkable there's probably some way to make a kitchen knife such that it can't possibly be used to cut anybody um you could theoretically Envision a gun that has a little camera on it where you have to pay a subscription service and that video goes to like some other person who reviews your use of the gun so that every time you pull the trigger they have it sends it off to them and until they review the video and say Yes approved it doesn't shoot but that would be a garbage product and it would be incredibly expensive and it would be stupid right this is an obviously dumb hypothetical but it might reduce the risk a little bit so okay cool um now of course the first thing people would do when they got that gun would be dis to disable that feature but yes in the case of negligence in designing a product the defendant is blameworthy for not designing its product in a safer manner so in Nicholson uh and John Deere limited Justice Smith noted that a manufacturer does not have the right to manufacture an inherently dangerous article when a method exists of manufacturing the the same article without risk of harm now again it's you know within reason and so forth right you can't just say oh there's a method but it has to be sort of a it has to be such that it would be unreasonable not to include it so let's imagine you know you've got a lawn mower and your lawn mower's got like a little uh metal skirt kind of thing that prevents you from easily putting your foot into the blade as you use the mower that little skirt you know part of the case pretty much costs nothing um it's not hugely expensive and so it would be crazy to manufacture a lawnmower where you've got this lawn mower blade that just spins out openly and you know takes out the dog takes out your legs takes out everything that would be crazy so you can't do that somebody could sue you for doing that but other features it gets more complicated to succeed in a cause of action for negligent design of a product the plaintiff must identify the design defect in the product and establish that the defect created a substantial likelihood of harm and that there are safer and more economically feasible ways to manufacture the product the law does not require a manufacturer to produce articles that are accident proof or incapable of doing harm think about this in the context of Motor Vehicles right and sure we've got tons of features in our cars that are designed to make it less likely that we will have an accident and more likely that we survive in an accident we've got seat belts we got airbags we've got you know Lane assist we've got all of these things we've got headlights we've got so many of the features in our cars are designed to make them less likely to get into accidents and more likely that we survive but if they had to make cars impossible to get into accidents with we just wouldn't have cars and I know there's some people in the you know watching this will be going great bring on the age of bicycles and I will tell you it is impossible to make a bicycle that is accident proof or incapable of causing harm as well even a kid's tricycle can have an accident and can cause harm so we would we'd pretty much be just the only product we could have would be like helmets and and rubber padded rooms so but a manufacturer does have a duty to design a product that is not defective depending on the product defectiveness may be determined in relation to the design of the product based on a risk utility analysis of an alternative safer design of the product note risk utility you could theoretically make a car that goes at no more than 1 km an hour such that any accidents you have in this car are going to be pretty safe you crash into a wall at 1 km an hour nobody dies however is that a useful car is that helpful to anything is what are you going to do with this car you're going to throw it out because that's not useful so that would fail on the risk utility analysis sure it's got less risk but there's no utility left in the vehicle so in crer and waterl Oxford Cooperative the Ontario Court of Appeal noted that to succeed in a claim of design negligence the plaintiff must establish among other things that there exists an alternative design that is safer and economically feasible feasibility in this context means more than that it is possible to manufacture a safer product it means that the safer product can be manufactured without unduly impairing the utility of the product and without greatly increasing the product's cost you know let's say your airbag makes your $115,000 car cost $5,200 that's not a big cost but let's say it makes your $115,000 car cost $45,000 well then nobody's buying this right so these are considerations the court basically says these laws have to be reasonable it has to be practical the law can't be insane about how it goes about doing this stuff and thankfully the court considers that even though we're talking about guns because it is very easy for courts to basically say listen just because this is guns we're going to turn off our brain and we're just going to say No Deal um there are court cases where I think the court has done that uh but this is not one of them the court is going to say listen we have rules you got to follow them all all right so now we get to the question of common issue number one about design negligence in handguns um was the defendant negligent in failing to incorporate authorized user technology in the handgun used in the danforce shooting so the immediate case is about the design of the M&P 40 which like all handguns has lethal capability now that's not technically true because there are things that are handguns in Canadian in law that are not lethally capable but we'll just give them this one that you know this is a technicality that I spot but um it doesn't matter for this case the plaintiffs alleged that the M&P 40 was designed for military and police use and was intended to injure or kill people fair enough it it totally was right um that that's why they that's why the police and the military carry it is that it can do those things the phraseology used by the plaintiffs attrib intent to the M&P 40 is problematic because guns being objects have no mental States including intentionality so um the court here basically says you are saying the gun has a purpose and there this is basically the court sort of going a little bit on the um you know guns don't kill people people kill people kind of thing right so uh what the plaintiffs obviously mean is that the M&P 40 was a designed to be used by the military and the police and B it was designed to enable those users to injure or kill people this observation is not to embroil this case in the slogans of the American NRA National Rifle Association rather as will become evident from the discussion and Analysis below to be fair to the arguments of both parties it is necessary to to be precise about the purpose capability feasibility risks benefits costs associated with designing the M&P 40 as a manufactured products with purposes not intentions I like the way the court deals with this the court is like I don't want to get into slogans but we do need to actually deal with this as a you know what is this gun for what is its intended purpose so Smith and Wesson submits the plaintiff's proposed class action is stillborn okay that's a that's a choice of words but fair enough and there can be no basis in fact for this critical common issue without an expert qualified to aine about design to aine that there was an alternative design for the M&P 40 so why couldn't they get an expert qualified in design well I'm guessing because the experts qualified in design a probably don't fit their um their sort of goals here of sort of there's a lot of gun control proponents on this one on you know their sort of side here but also I'm guessing they might not have said the things that they wanted said that's that's a problem too right sometimes you shop around for an expert and you just can't find one to say the things you're hoping to say because they're just not true so uh without an expert qualified to a pine about design to Pine that there was an alternative design for the M&P 40 that a would have minimized the risk of criminal misuse of the M&P 40 B could have been adopted at a reasonable cost and C would not have impaired the utility of the M&P 40 the plaintiff submitted that all they needed uh to do with the certification motion was to prove that there was some basis in fact that Smith and Wesson knew that lost and stolen guns were frequently used by criminals Smith and Wesson knew that authorized user technology would make the M&P 40 a less dangerous product and it was feasible for Smith and Wesson to incorporate some form of authorized user technology in the design of the M&P 40 and D for Canada the incorporation of authorized user technology would not adversely impair the utility or the functionality of the M&P 40 by private users because under Canadian gun or Canadian law the use of handguns in the private sector is limited for target shooting and for gun collecting now now here's the thing as a Target shooter I don't want authorized user technology because I want my gun you know the gun I use for target shooting to be as simple and to have as few failure points as possible now I am waving my hand here and I just want to illustrate something I am waving my hand substantially out of this this is a gun that is unloaded this is everything is we're we're being safe here we got a safe Direction all of this but um I don't want the handun to have authorized user technology because even though I'm an authorized user I don't want it to hiccup on this I I don't want to have that kind of problem where I go to fire at the Target on the clock because so much of target shooting is timed and then it just goes you know beep please reauthenticate it's like I I can't be re-authenticating when I'm on the clock uh sometimes I have to shoot with gloves some of the authorized user technology involves like fingerprints or grips or those kinds of things I don't know if the gloves are going to make it up why do I have to use gloves well sometimes I shoot in the winter and Canadian Winters suck um what if there's an RFID what if there's some sort of signal jamming what if you know all of these things right I just don't want that I don't want those headaches I just want something simple and effective and reliable the plaintiff submitted that the vast majority of Canadian Gun Owners would be minimally impacted if the feasible authorized user features had been incorporated into the M&P 40 and the Smith and Wesson could have and ought to have Incorporated this technology I probably could have testified as to the opposite of this um I could have testified that they're wrong but um Smith and Wesson did not call me to testify and I would if they had I would have recommended better experts than myself but yep boldly um by the way it is never a good thing when the court says that you are bold bold is praiseworthy all sorts of places if I say oh my buddy is bold I'm talking him up I'm bigging him up but if the court says that you are bold it means you're dumb bold L is you screwed up you have said something you shouldn't have said boldly in their factum the plaintiffs asserted that more detailed evidence relating to a risk utility analysis cannot be required at the certification stage because in a product liability case there is an inherent informational imbalance that favors the manufacturer IE the manufacturer sitting on all this information and they don't have it um who has uh who has yet to have been exposed to documentary and oral Discovery the plaintiff submitted that it is unfair to require a plaintiff to provide evidence that relates to matters exclusively within the manufacturer specialized knowledge the thing is is that they they can still do analysis of risk and utility right it may not be the same as Smith and Wesson's but they're not held to proof here it's just that they have to have some useful evidence on these points and they didn't so the court notes even at the low sum basis in fact standard and I'm adding the uh the quotes there because I thought they should have been in there U the standard is some basis in fact the plaintiffs Do Not satisfy the evidentiary threshold for the critical design negligence common issue a design negligence case ultimately requires evidence from an expert in design evidence about the consequences of alleged bad design just begs the question of whether the design was bad begs the question basically means you're assuming the conclusion so here in this case they're saying look there are dead people and that is tragic but that doesn't say that it was bad design you have to actually have an expert in design to say this is a poor design right uh the fact that somebody loses their toes in a lawnmower accident doesn't say it was a badly designed lawnmower maybe it was but maybe there's reasons for the design maybe and so you need an expert in lawnmower design right and that person can say yeah this this should have had all of these basic safety features and it didn't or it could be that the lawnmower design expert says this is one of the safest mowers on the market if this guy lost his toes he had to have been operating at drunk or something like that right I don't know the plaintiffs are not required to prove the merits of their design negligence case with expert evidence at certif ification but they're required to show some basis in fact for the rudimentary elements of a design negligence claim that as possible Merit the plaintiffs must show a plausible methodology to prove their design negligence cause of action so because they're not actually at trial yet they don't have to to prove things but they have to outline for the court a path from where they are now to Victory town that doesn't have like a giant wall or an you know an impassible Chasm or an ocean between them they have to show here's how we would get there and the plaintiffs in this case couldn't do it uh the court notes typically in a design negligence proposed class action the plaintiff will call a design expert to show some basis in fact for the common issues about negligence in design the plaintiff may suffer an information deficit about why when where and how the defendant made the design decisions that it made and about whether the defendant met the standard of care in making its design decision that it made but the plaintiff does not suffer any information deficit in identifying what the common design or what is the common design def or defect and moreover there is no information deficiency in at least establishing the methodology for making a risk benefit analysis the court here is being a little bit critical of the plaintiffs for failing to bring the necessary evidence and I think that the reason why they failed to bring it is either they fell into an ideological trap and they brought in a bunch of anti-gun folks and didn't realize they needed somebody who knew the fundamental mechanics of guns or um they might have just been unable to find one might have been really hard to find an expert in firearm design who said yeah these are necessary because the vast vast vast majority of guns on the market don't include these things okay carrying on here for the immediate case the alleged defect in the M&P 40 was the absence of authorized user technology which technology is alleged to provide a means to make a dangerous product less dangerous I.E it is a technology that makes the M&P 40 safer however in the immediate case the matter of whether authorized user technology is a safety feature is a contentious matter that requires an expert's opinion and the court is going to note why because you might be saying wait a minute isn't this a safety feature so authorized user technology does not make the use of a handgun safer for the user it is essentially a safety feature against the handgun being stolen this is true of authorized user technology generally which is incidental to the purposes for which the product is designed and they're going to give us some some analogies here for example a cell phone equipped with authorized user technology does not affect the use of the cell phone as a cell phone but prevents the cell phone being used for by others and discourages theft of the cell phone what sort of um what sort of authorized user technology are we talking about here well my phone has a password on it right and that password prevents if I lose my phone and somebody else picks up the phone they can't easily use my phone um I would actually say that the password on my phone makes my phone experience worse I don't like having to enter in a password uh but and there's simpler ways you can use face ID and so forth but I don't like face ID because face ID could be used against my will um you know without my choice somebody could point the phone at my face even though don't want them to and unlock it that way uh password I pretty much have to cooperate in some fashion but it actually makes using the phone worse you know if I'm um as an example my phone password is actually ridiculously long um I don't have like a four-digit code and there's reasons for that that really deserve their own video but let's say I go out drinking and I don't do this often but let's say I go drinking and I get really smashed and I want to order an Uber to get home it might take me three or four tries to get my password in because it's like 20 characters of gibberish okay but it does help prevent it from being stolen and whatever right so it's not a feature that benefits me directly it's a feature that impedes others who I think are jerks like phone thieves so for example authorized user technology is used in vehicles to prevent theft but it does not make the car is safer on the road and even in minimizing the crime of car theft authorized user technology is not fail prooof um if you've ever had a car stolen and it I have and it sucks it was probably stolen notwithstanding the fact that it takes a key to get in the door and a key to start up the car thieves are good at bypassing authorized user technology it's one of the things that makes thieves thieves right is that they can bypass your security stuff so yeah for example cars are frequently stolen notwithstanding the presence of authorized user technology and stolen cars may be used to perpetrate other crimes including vehicular homicides like if you thought your plan to kill somebody was you're going to run them over in a car you might think hm might be a better idea to run them over in a stolen car rather than one whose plates Point immediately back to where I live so the problem of the absence of a design expert in the immediate case was a multifarious problem there were multifarious is a good word I got to save that word for later there were three types of authorized user technology that were presented as a as feasible alternative designs for the M&P 40 however the feasibility of these Technologies was largely theoretical feasibility based on the existence of patents and by the use of authorized user technology and other products such as cell phones and Automobiles in the immediate case there was the possibility of prototypes and some prototypes have been manufactured by other gun manufacturers however there was no evidence that the prototypes were effective and no evidence that effective authorized user technology would not impair the utility or the safety of the handgun can you imagine like authorized user technology but sometimes the gun just goes off on its own cuz I can it's possible moreover there was no evidence from a design expert about whether or not a decision to not incorporate authorized user technology was a decision that would not be made by a reasonably competent gun designer when the gun was designed or perhaps when the gun was manufactured and sold and the reason why you're not going to be able to find this evidence is because like every gun on the market does not have authorized user technology this is a very very uncommon thing there's a few specialty guns out there that have it and nobody buys them because nobody likes them because they kind of bad so in all events it does not follow that because something can be designed even something beneficial that it is careless or below the standard of care not to implement the design further still there was no expert evidence to show some basis in fact that radio frequency identification RFID and biometric technology were commercially viable design choices that would not impair the utility or the safety of the M&P 40 there was no expert evidence to show some basis in fact that the authorized user technology could be incorporated without impairing the utility of the M&P 40 for the user For Whom the mnp 40 was designed which is military and police and I'm just going to say like the biometric technology for military and police is going to be a complete non-starter why because they have to be able to shoot these things wearing gloves police and military both have reasons to wear gloves gloves military may need to wear gloves cuz they're operating in cold weather environments like Canada I don't know why the Canadian military might ever need to operate in Canada yeah um similarly the police need to operate in Canada we've got police everywhere from like Sunny warm well rainy warm Vancouver um all the way up to ealot and ealot gets cold and I'm probably mispronouncing it but you know yeah um Northern Alberta Fort McMurray Fort McMurray gets cold enough that um let's just say don't lick any telephone poles in Winter up in Fort Mack or you're going to have a bad time so um there was no expert evidence to show some basis in fact that authorized user technology would make the M&P 40 uh safer for use by the owner of the handgun or make the M&P 40 safer for the public that might be affected by a criminal using the M&P 40 now keep in mind a criminal is going to as you know is going to have time to bypass things we'll talk about that a little later another problem for the plaintiffs was that design thinking involves empathy for the product user needs and creativity in meeting those needs Smith and the plaintiffs here had no empathy I'm guessing for the needs of Target Shooters the military the police but just you needed to make it perfectly safe right Smith and Wesson designed the M&P 40 for the police and the military the thrust of the plaintiff's case was that the M&P 40 should be designed with authorized user technology even though this handgun was designed for the police and the military because the M&P 40 was sold and could be obtained and used by persons other than the police and military this argument which might be a good public policy argument is not a good legal argument because design negligence requires a risk benefit analysis that does not ignore meeting the needs of the intended user For Whom the product is being designed basically your arguments needed to say how this works for military and police Ironically in the immediate case there was some basis in fact that internal and external locking systems were feasible and could be incorporated into the M&P for or other handguns indeed the evidence was that there was a model of the M&P 40 that had an internal Locking System and that had sold at the same price is the model designed for police and the military which doesn't have the internal Locking System because the police don't want it and the military don't want it it's just a potential problem the problem for the plaintiffs however was that there was no expert evidence to show some basis in fact that all M&P 4S would be safer for all users or for the public by the in in orporation of internal or external locking systems there was also the problem that the evidence from the plaintiff's experts indicated that incorporating internal locking mechanisms was not a designed necessity because there were readily available external locking systems that could be utilized for users inclined to make their weapon unusable by others so what they're talking about when they say external locking systems is this thing the trigger lock it works just fine you know you can't pull the trigger with the trigger lock in place that's what it's for so do you need to add an internal Locking System when there's an external Locking System that works fine well probably not the other thing I'm just going to point out is this little piece on the handgun this thing here the purpose of this thing here is that it is a thing that holds the whole gun together and what it's there for is so that you can pop it out and take the gun apart for service for maintenance for replacing Parts in order to use a gun you have to be able to take it apart because powder has fowling it gets in the gun it clogs things up and potentially it can make the gun fail to function you got to clean your guns and any gun that can be taken apart to replace pieces or clean the gun or whatever else by the user well it means that the user can take it apart and potentially disable any such locking mechanism it's just part of the problem here okay so let's continue here as a matter of design negligence a legal not political issue uh the agreement does not show some basis in fact that an M&P 40 without authorized user technology was a design defect that could have caused the harm suffered by the class members or that an MMP 40 with authorized user technology was a feasible alternative that could have been implemented at a reasonable cost C the implementation of authorized user technology would not have impaired the utility of the M&P 40 for its intended users and d a reasonably competent gun designer would have chosen to Inc incorporate authorized user technology in an M&P 40 designed for police forces and the military I'm not aware of any firearm that is designed for police in the military that includes such technology I could be wrong but I'm not aware of one so common issue number two did the failure to incorporate authorized user technology in the handgun cause contribute to or individually harm or increase the risk of harm to the members of the classes one and two for the want of a nail the shoe was lost for the want of a shoe the horse was lost for the want of a horse the rider was lost for the want of a rider the battle was lost for the want of a battle the kingdom was lost and all for the want of a horseshoe nail which is quoting Benjamin Franklin because there's no basis in fact for the critical common issue number one the design negligence question it necessarily follows that common issue number two whether the design negligence caused harm is also not certifiable cuz the second one assumes that the first one was certifiable because of the likelihood of appeals I will assume this judge knows he's getting appealed so that's what he's saying here I will assume that there was a design negligence common issue and consider whether there was an associated general causation common issue I.E okay let's assume I'm wrong on that first point so let's keep going and make that assumption and see if they'd win on this issue even if I was wrong on the previous one in the immediate case applying the butt four test and the butt four test sounds kind of dirty but what it means is would something have happened if not for the other thing right so um let's say I'm driving my car along and I hit a telephone pole and the telephone pole Falls and smashes into someone's house I can't say listen that that's not my fault the telephone pole hit the house because but for my crashing into the telephone pole the telephone pole wouldn't have fallen into that person's house right this is a sort of way to test for causation would the other thing have happened if not for the the first thing so uh there is no basis in fact for common issue number two one once again what is missing is expert evidence although this time what is missing is a criminologist to demonstrate that there's some basis in fact for concluding that adding authorized user technology the M&P 40 would reduce gun accidents and gun Crimes of the nature that occurred on the Danforth there needs to be some basis in fact to connect Smith and Wesson's negligence which is not equivalent to Smith and to a Smith and Wesson weapon being used by Mr Hussein to the harm suffered by the class members I.E would Mr Hussein have just used used a different gun would he have disabled the features in the gun and then used it anyway these are problems that they needed evidence to get around in the immediate case no expert provides any explanation for how the alleged defect of the absence of authorized user technology is related to what Mr Hussein did Common Sense does not fill the evidentiary void Common Sense might suggest that the presence of authorized user technology would be a cure for the nefarious use of handguns this might be true for a child's use of his or her parents handgun but this is not the case they're bringing however in Canada all private sector owners of guns including parents of children but not limited to are already required to keep handguns secure from the use of others um as soon as I'm done using this handgun in the course of filming this video it has to go back in my safe and I'm still not taking the trigger lock off even though I could for this but um yeah it's got to be locked up you know and so forth because it's going in a safe I don't technically need the trigger lock I'm just extra careful all right um thus in terms of child safety authorized user technology while an added safety is somewhat Superfluous it's extra bonus stuff but the point remains that Common Sense does not explain why the absence of authorized user technology is a cause for what evily happened in the Danforth by the way I do own one gun that has like an internal lock and I can tell you the first thing I did with that is I unlocked it made sure it was unlocked and then I tap the key to the inside of my safe and I have never touched it again because that is just that's a key I don't want to lose right so I don't want to use it so um I have my trigger locks on combinations the plaintiff's causation argument is that since there is some basis in fact that Mr Hussein used an M&P 4 handgun without authorized user technology to harm the class members all of whom were injured by Mr Hussein's use of the M&P 40 uh and since Mr Hussein would not have been able to use the MMP 40 if it had Incorporated authorized user technology therefore there is some basis that the proposed class members suffered compensable harm caused by Mr Hussein's use of the M&P 40 now the reason why they don't want to sue Mr Hussein is a he's dead but they could sue his estate but I'm guessing his estate has has like $12 and some buttons and that's not really helpful so the logical fallacy in this argument is that the harm caused by Mr Hussein was his using a handgun and while he happened to be using an M&P 40 without authorized user technology that is an incidental fact but not a causal fact that connects Smith and Wesson to the harm done by Mr Hussein he could have used any handgun the harm to the class members was caused by what Mr Hussein did and it was not caused by an aspect of how he did it so again this is the problem that all of these lawsuits run into is the issue of you know let's say somebody gets a sword or you know they get something like this thing um I like using this thing as a prop because it's fun but um and then they go and attack some people with it well is it the maker of this thing that is the reason for it or would it be whoever is swinging the thing and the judge is saying really it's the guy who swinging the thing you should be suing here and I the judge knows why they're not doing it but just because a lawsuit is inconvenient doesn't mean it's you know valid to launch some other suit um we happen to know that Mr rusin acquired an mmp40 without authorized user technology but while the presence of authorized user technology might have deterred him from using a gun with that technology it would not necessarily have deterred Mr Hussein whose circumstances are not known from having been an authorized user of an M&P 40 for the purposes permitted in Canada and then misusing that gun basically they're saying he didn't call any evidence that he wasn't the owner of this thing um or it would not necessarily have deterred Mr Hussein from circumventing any authorized user technology if the gun had been equipped with that technology he could have taken it apart and taking it out um in Mr Hussein's case all of the authorized user technology might do is Alter the means of his misdeeds but not the occurrence of his Wicked use of a handgun I like the use of the word Wicked um if I ever become a judge I'm going to use Wicked initions um yeah uh these are reasons why I probably won't be a judge but uh the point is that in the immediate case while the plaintiffs are to be praised for their aspirations to find a means to protect others from suffering as they have suffered it is for Parliament or the legislature not the courts to legislate Public Safety product standards basically you brought this to the wrong place and our current government might be inclined to listen to them but it's not going to get them money that's the thing is they can't get money from proceeding to you know Advocate with Parliament so skipping ahead we get to the conclusion for the above reasons the plaintiff's certification motion is dismissed which means this part of the lawsuit is dead but they could launch this lawsuit separately as individual plaintiffs I think they'll probably run into as much success doing that as they have so far and the court also notes if the parties cannot agree about the matter of cost they may make submissions in writing beginning with Smith and Wesson's submissions within 20 days of the release of these reasons for decisions followed by the plaintiff submissions within a further 20 days now I don't have the ultimate cost payment that is awarded in this matter but um Smith and Wesson will be getting costs and those costs will probably be a lot of money and that may discourage this lawsuit from going any further because um they will have spent a ton of money hiring these experts although some of those experts might have done it for free or for discounted reasons based on their own sort of personal reasons but I'm guessing most of them got paid and got paid a whole ton of money and so they're going to be out that money and then they're also going to be in a position of having to sort of pay Smith and Wesson and then restart their lawsuits from the beginning if that's where they want to go so this might be the end of this particular lawsuit or it might not but um for right now the ability to buy guns in Canada is safe and I think that's a good thing because we've got Hunters we've got Target Shooters we've got competition Shooters all of those people and yeah the other thing I didn't I thought about covering it but I did sort of cut it from my coverage here is there was some discussion where the judge says both authorized and unauthorized users uh commit crimes with handguns in sort of equal amounts there is a logical fallacy in the judge's decision maybe I could go through that again again or in another circumstance or whatever else but I did ultimately sort of decide to cut that one um yeah it's um it's interesting here it's um this is an interesting case overall and it's one of these cases where normally I would be concerned because the courts sort of try to bend over backwards to when you've got sympathetic plaintiffs and I'm just going to say I think the plaintiffs here are really sympathetic they're completely innocent victims of a horrific crime but that doesn't necessarily mean that you can sue whoever you want and here um Smith and Wesson doesn't seem to be the big um issue here the other thing the court does sort of go over and I did also cut this is a discussion about um a lot they say a lot of the like misplay guns or the stolen guns or lost guns in Canada are Smith and Wesson and that might probably just be because Smith and Wesson is a very popular brand I don't actually think I own any Smith and Wesson but there's no reason why I couldn't or might not in future um but one of the other things they identify is that Smith and Wesson also provides Firearms to a lot of police departments and police have lost a lot of guns in Canada so that might also be part of it anyway I thought this would be a short video it's a long video um that's kind of how I roll but um I tried to make it short I probably cut like an hour of content out of this one easy but thank you guys for watching I hope you found this to be interesting or educational please like this video share it with your friends subscribe to see more videos like this which will probably also be long but I also want to thank my patreon supporters at the $50 level purple dragon Aire cellow CMP ccfr PJs forever Canada's national firearm Association at bottles shock in Oz and the Canadian Shooting Sports Association I also want to thank at the uh $20 level uh Mark Lindsey metcafe Larry kak Kyle Fox drunk all of the Bailey Cameron Johnson Andrew elich Marvin CZ uh dorky danne um I think I left purple dragon air off the $50 level I I feel like I did if I did well covering it now I also want to thank my $10 supporters who will be in the crawl immediately following thank you for watching hope this is armed you with knowledge see you next time and now I got to go put this into the safe so good night everyone [Music] [Music] [Music] he [Music] he [Music] [Music]