Nail gun litigation has grown significantly over the years. In order to effectively litigate these cases, it is valuable to review past litigation strategies and documents collected in those cases to formulate the appropriate strategy for any potential case. The nail gun manufacturers have taken every step to discourage plaintiffs from bringing their cases to court and from sharing this information with each other. The result of this strategy is that each plaintiff is forced to perform a costly investigation, working from scratch. However, a skilled practitioner can circumvent this process by properly researching into past cases and by refusing to enter into confidentiality or secrecy orders requested by the manufacturers.
There are different types of nail guns. Some nails guns are sequential trip while others are coil type. The sequential trip nail gun is considered to be much safer because a nail can not be accidentally driven while the trigger is pulled.
The guns can be configured to fire when a trigger is pulled, or to fire on contact. Again, a contact firing gun may operate "faster" but poses a risk of mis-firing at unintended targets, merely by contacting them. This litigation has been riddled with stories of coworkers passing by one another, bumping into each other, one of them receiving a serious injury as a result of merely passing by each other.
However, there is a perception that using a sequential trip nail gun "takes longer" than using a coil type, since there is a decreased nail capacity in most sequential trip guns, necessitating reloading. Also, there are two steps to firing this gun ("sequence") and thus it can not be as rapidly fired as one not requiring two steps in the sequence. However, this time delay is a small price to pay, considering the devastating injuries suffered by the use of nail guns. The problem is that the manufacturers are not seeing it that way, and continue to put a premium on speed over safety - profits over safety.
The best place to gather information on any product is the patent office, where claims of safety and product uniqueness are set forth by the manufacturer. Copies can be ordered from the U.S. Patent office. In fact, information can also be gathered about products that a company never brought to market, which demonstrate safety features that could exist. These are admissions of the defendant, and can often be introduced in a court of law to demonstrate what the manufacturer knew and when it had this knowledge.
In addition, there are industry standards in practice, standards set by industry associations such as the International Staple, Nail and Tool Association or the American National Standards Institute. There are also standards set by various similar agencies or organizations in foreign countries, where these same manufacturers market their guns.
Nail guns first emerged after World War II and are now common in the construction industry. They are used in attaching shingles to a roof, floor boards to a plywood floor, and other repetitive nailing activities. The gun basically "shoots" the nail, either with air-pressure or by other methods. The problem occurs when these guns accidentally are triggered, firing a nail into the user, or even more commonly into a bystander.
The early designs of nail guns could be fired with a single action, while more recent designs require two actions to fire the gun. In a dual activity system, a trigger would have to be pulled while contact was made. But this alone has not eliminated accidental discharge of the nails from the gun, sometimes by operator error, or by the natural recoil of the gun causing a second, unwanted firing. In order to prevent this, the gun should be, and some have been, designed to require contact with the surface to be penetrated before the trigger has been activated. Further, requiring that the trigger be re-depressed prior to a second discharge would eliminate the accidental "second-shot" firing from the nail gun.
Nail guns are useful tools, but must be handled with care, and have been shown to be the cause of unnecessary injuries when the design of the gun places emphasis on speed, rather than safety. For more information about nail gun accidents and litigation, please feel free to contact us.
This informational piece was prepared by Silverman & Fodera. If you would like more information on this topic, call us at (800) 220-LAW1, or use the "Do I Have A Case?" link on this web site.