The Ontario Superior Court recently emphasized the need, in a negligent design claim, for evidence on the product from a qualified design expert, even in the context of a certification motion.
In Price v Smith & Wessen Corp (Price), Justice Paul Perell refused to certify a class action against the manufacturer of the handgun used to carry out the 2018 mass shooting on Danforth Avenue in Toronto. The plaintiffs brought their claim on behalf of those killed or otherwise affected by the tragedy. After a two-phase process, Justice Perell found no basis in fact for concluding that the handgun used in the shooting had been negligently designed or that the manufacturer’s alleged negligence had caused the plaintiffs’ injuries.
The decision followed an earlier determination in the case that the plaintiffs’ negligent design claim—based on the lack of certain safety features in the handgun’s design—was not bound to fail based on the pleadings. In 2020, Justice Perell bifurcated the certification process into two phases: (1) an initial assessment of the adequacy of the plaintiffs’ claims based only on the pleadings; and (2) if the claims could proceed to the next phase based on the pleadings, an assessment of the threshold adequacy of those claims at the certification stage based on the evidence. While the plaintiffs’ negligent design claim survived pleadings scrutiny (as discussed in Are Gun Manufacturers Liable for Mass Shootings?), Justice Perell found that the plaintiffs’ evidence in support of that claim did not meet the “some basis in fact” standard applied at the certification stage.
This decision sets clear and specific guidelines for the evidence that courts will expect from plaintiffs before certifying a negligent design claim. It also shows that any “information deficit” of plaintiffs relative to defendants about design decisions and other details—often highlighted by plaintiffs in products liability cases—does not relieve plaintiffs of the onus of proving some basis in fact for their design negligence claims, including through expert evidence.
This decision also reinforces the now well-established principle that proving some basis in fact for common issues requires not only some basis in fact that the proposed issues can be answered in common across the class, but also some basis in fact that the proposed common issues actually exist.
To make out a negligent design claim, a plaintiff must:
Whether a manufacturer designed a product negligently turns on a risk-utility analysis that weighs the utility of the chosen design against the foreseeable risks associated with that design. Economic feasibility is a factor—the alternative design must be able to be manufactured without unduly impairing the utility of the product or spiking its cost.
In Price, the product was Smith & Wesson’s M&P40, a semi-automatic pistol made for military and police use. The plaintiffs alleged that the design defect was the absence of “smart gun” technology, also known as “authorized user technology”. In the firearms context, authorized user technologies aim to prevent the criminal misuse of weapons by unauthorized persons. Those technologies seek to prevent a firearm from functioning in the hands of anyone other than an authorized user. They include radio-frequency identification (RFID), proximity tokens, magnetic rings, palm-print recognition, fingerprint recognition, voice identification, other mechanical, automated identification and biometric identification tools.
The M&P40 used in the Danforth shooting was manufactured in the United States and lawfully exported to Canada in 2013. It was reported stolen in Saskatchewan in 2016 and came into the possession of the shooter in or about 2018. The shooter was not an authorized user of the M&P40 used in the shooting.
The plaintiffs alleged (among other things) that because Smith & Wesson knew the risks related to the unauthorized use of its firearms and had even sought patents for certain authorized user technologies, it was negligent in designing the M&P40 by not integrating authorized user technology into that product.
One “remarkable” feature of the expert evidence on the certification motion, Justice Perell observed, was the absence of any opinion from a qualified expert in handgun design. The plaintiffs’ experts stated that the M&P40 should have included a mechanical internal lock, RFID and biometric recognition technology, and that an alternative design including these features would be safer. However, the plaintiffs led no evidence that a prototype of their proposed safer design had ever been tested. Indeed, the record before the court contained no evidence about the testing of any form of authorized user technology.
The plaintiffs argued that they should not be required to provide evidence for their risk-utility position at the certification stage. Justice Perell disagreed, finding that “the evidentiary threshold … was to have an expert opine that: (1) an M&P40 without authorized user technology was a design defect that could have caused the harm suffered by the Class members; (2) an M&P40 with authorized user technology was a feasible alternative that could have been implemented at a reasonable cost; and (3) the implementation of authorized user technology would not have impaired the utility of the M&P40 for its intended users”.
Justice Perell held that a “design negligence case ultimately requires evidence from an expert in design”. The plaintiffs provided no evidence that an M&P40 designed with authorized user technologies would be reliable, economically feasible or even safer.
There was no evidence that a reasonable firearms manufacturer in Smith & Wesson’s position would have chosen a different design for the M&P40.
The M&P40 was designed for use by military and law enforcement personnel. The reasonableness of the product’s design thus depends on the needs of its intended users—in this case, members of the military and police trained in the use of handguns.
As the plaintiffs’ experts acknowledged, adding authorized user technology to the product’s design would affect the complexity, weight and balance (among other features) of the weapon, which would adversely affect its reliability and therefore utility. The plaintiffs’ experts also acknowledged that adding authorized user technology to the product would increase the cost of manufacturing it. Justice Perell concluded that the feasibility of the authorized user technologies identified by the plaintiffs was at best “theoretical feasibility based on the existence of patents and by the use of authorized user technology in other products such as cell phones and automobiles”. He found that there was no evidence that all M&P40s would be made safer for all users or for the public by the incorporation of locking mechanisms.
As a result, Justice Perell held that there was no basis in fact to conclude that Smith & Wesson’s design fell below the standard of care. While he found that the plaintiffs may have a “public policy argument” that authorized user technology should be a product standard for all handguns, “a public policy argument is not the same thing as a design negligence cause of action against a handgun manufacturer who made design decisions not to incorporate authorized user technology in a handgun that it was manufacturing as a military and police weapon”.
Justice Perell also considered, “because of the likelihood of appeals,” whether general causation could be certified as a common issue. Answering in the negative, Justice Perell observed that the plaintiffs had failed to lead expert evidence from a criminologist to show that there is some basis in fact for concluding that adding authorized user technology to the M&P40 would reduce gun accidents and gun crimes of the nature that occurred on Danforth Avenue.
The plaintiffs contended that, since the shooter was an unauthorized user, he would not have been able to use the weapon to wound or kill the putative class members if the product’s design had integrated authorized user technology. Justice Perell found that the shooter’s use of an M&P40 without authorized user technology was an “incidental fact but not a causal fact that connects Smith & Wesson to the harm done”. He found the harm was “caused by what [the shooter] did”, not “by an aspect of how he did it.”
Without expert evidence explaining how the lack of authorized user technology related to the shooter’s crimes, Justice Perell held that “common sense does not fill the evidentiary void” and, especially because about half of gun crimes in Canada are committed by authorized users, “it cannot be said that but for the want of authorized user technology … [the shooter] would not have perpetrated his evil crimes”. The most that could be said, he found, was that the use of authorized user technology may have altered the means of the shooting, but not its occurrence.
While praising the plaintiffs “for their aspirations to find a means to prevent others from suffering as they have suffered”, Justice Perell concluded that “it is for Parliament or the Legislatures not the courts to legislate public safety product standards.”
The Price decision emphasizes the need in a negligent design claim for evidence on the product from a qualified design expert, even in the context of a certification motion. As Justice Perell held, common sense—no matter how apparently compelling, as a matter of public policy—cannot displace properly qualified expert opinion (among other evidence) in support of an alternative product design being safer, yet also economically feasible to produce and as effective for its intended purpose and users.
This decision could greatly affect attempts by victims of mass shootings to use tort law and class actions to seek redress from the manufacturers of the firearms used in those shootings. The claims in the Price case were framed in negligent design. Importantly, Justice Perell did not foreclose the prospect of claims falling into that category of negligence or the prospect of other types of tort claims addressing similar facts, but he did make clear that the design features of a particular firearm used to carry out a shooting or other crime are—by themselves—merely incidental features of how the harm was caused and do not alter the shooter’s ultimate causal responsibility.
Without expert empirical criminology evidence supporting that the plaintiffs’ alternative product design would reduce gun crimes of the kind that in fact occurred, this decision suggests that meeting the some-basis-in-fact standard in relation to a causal chain between a manufacturer and a shooter will be difficult. The absence of adequate expert evidence in this matter was notably significant to the ultimate outcome.
The decision also suggests that any informational disadvantage as between the plaintiff-victim and the defendant-manufacturer on design decisions and other pertinent details does not diminish the requirement of satisfying the some-basis-in-fact standard through expert and other evidence at the certification stage of a proposed class action. While courts should take any imbalance into account, it is irrelevant to the ability of a plaintiff to identify the common alleged design defect and establish a methodology for making a risk-utility calculation.