Why some say a landmark legal settlement could still leave millions of defectiverifles in the public's hands
It was the kind of challenge that engineers live for and dread all at once. The top-selling product at the Remington Arms Co., the Model 700 rifle, was successful — practically beloved. But there were also complaints — even lawsuits — about the guns going off without the trigger being pulled. The engineers set out to design a new version, better than the original. But first, they had to get it past the legal department.
So on a chilly March day at Remington's main plant in Ilion, New York, the engineers met with the lawyers. Topping the agenda, according to notes by engineer James Hutton: coming up with a new firing mechanism that would allow the company to continue defending the old one. It would need new safety features, the notes say, including a design that keeps debris from getting inside, and a way to keep customers from making dangerous, do-it-yourself adjustments.
The meeting took place in 1989. It would be another 17 years, thousands more complaints and about 100 more lawsuits before Remington would finally put a new fire control for the Model 700 on the market. Many of those lawsuits blamed Remington for serious injuries, as well as multiple deaths.
Secret documents from inside the nation's oldest gun manufacturer show corporate attorneys heavily involved in multiple attempts by Remington engineers to develop a safer rifle. The apparent fear: changing the design would be seen as an admission of guilt.
The documents, obtained exclusively by CNBC, come to light as the company and plaintiffs' attorneys seek final court approval of a landmark class-action settlement in which Remington has agreed to replace the triggers in as many as 7.5 million guns. A hearing had been scheduled for Monday, but within hours after this report was first published, the judge postponed it indefinitely.
U.S. District Judge Ortrie Smith cited a "quite low" initial response to the settlement offer. As of mid-August, only 2,327 claims had been filed since the tentative agreement was first publicized in May. The judge ordered both sides to come up with a better plan to notify the public.
"The Court cannot conceive that an owner of an allegedly defective firearm would not seek the remedy being provided," Smith wrote.
But even now, the company insists the Model 700 — the most popular bolt-action rifle in the world — is safe.
The 2010 documentary "Remington Under Fire: A CNBC Investigation" examined allegations that for decades, Remington covered up a deadly design defect in its signature product. At least two dozen deaths and hundreds of injuries have allegedly been linked to inadvertent firings of the gun.
Remington has always maintained that every accident was the result of user errors such as poor maintenance or improper gun handling, and claimed no expert from inside or outside of the company has ever been able to duplicate the problem on an unaltered gun. The company called the CNBC program "careless reporting."
Five years later and nearly 70 years after the firing mechanism at the heart of the rifle was invented, Remington has announced it wants to put the matter in the past once and for all by offering to replace the triggers. But critics fear the company's continued insistence that the guns are safe will compromise the settlement, potentially leaving millions of defective guns in the public's hands.
The proposed settlement stems from the case of a Missouri man, Ian Pollard, who claimed his Remington 700 rifle fired without the trigger being pulled on three separate occasions.
As in dozens of previous lawsuits going back decades, the Pollard case alleges a tiny internal component known as a "trigger connector" can become clogged with debris, causing other parts of the firing mechanism to become misaligned and rendering the gun unsafe. The replacement mechanism does away with the connector.
The settlement covers some of Remington's top-selling models including the 700, Seven, Sportsman 78, 673, 710, 715, 770, 600, 660, XP-100, 721, 722, and 725, produced since 1948. All include a firing mechanism known as the "Walker trigger," for Remington engineer Merle "Mike" Walker, who invented it in the 1940s.
The documents, including hundreds of thousands of pages of internal notes and memos as well as hours of video, shed new light on Remington's efforts to manage the problem — and the fallout.
Among the revelations:
- Remington has been able to duplicate the alleged problem, both in its own tests and in research by an independent laboratory the company commissioned.
- Remington rejected multiple alternative designs for the trigger, at least in part because attorneys worried that a design change might be seen as an admission of guilt in the product liability suits they were battling.
- Remington has deftly — and legally — used court secrecy provisions to limit the spread of information about the alleged defect. But on multiple occasions, courts have sanctioned the company — including at least one contempt citation—for withholding key evidence.
An attorney representing Remington as well as E.I. du Pont de Nemours and Co., which owned the gun maker during the key phases of the 700 Series' development before selling it to an investment group in 1993, declined CNBC's request for an interview ahead of the settlement hearing that had been scheduled for next week.
"Remington's only comments will be in its papers filed with the court and its arguments before Judge Smith," said Dale Wills, a partner with the Chicago law firm Swanson, Martin & Bell, in email.
Remington is currently owned by a unit of Cerberus Capital Management, which is not a defendant in the case.
The documents and other materials now coming to light date back more than 70 years. Most were turned over by Remington at the request of the plaintiffs in dozens of lawsuits over the alleged defect. But the materials have been hidden from the public until now by so-called protective orders that Remington has routinely insisted upon as a condition of settling the lawsuits.
The orders, which ostensibly protect companies from having their trade secrets revealed, are common in product liability cases. But consumer advocates and public interest groups say companies routinely use the agreements to hide risks from the public.
"There are such things as trade secrets, like the formula for Coca-Cola for example, and of course the courts should be keeping those things secret ... but that's not what's happening here," says Arthur Bryant, chairman of Public Justice, a nationwide public interest law firm. Public Justice managed to secure the release of the Remington documents as part of a longstanding push to eliminate what it calls "excessive secrecy" in the courts.
Public Justice saw an opening in Remington's case after Smith — in a rare move — signaled that he would not allow the usual degree of secrecy in the proposed class-action settlement.
"There is a strong public interest in not allowing the Court's orders to be used as a shield that precludes disclosure of this danger," Smith wrote in an order late last year denying a joint motion by Remington and the plaintiffs for a protective order in the class-action case.
The ruling in hand, Public Justice demanded Remington relinquish all the protective orders the company had secured in every bolt-action rifle lawsuit ever filed — cases that go back decades. Otherwise, the organization warned, it would wage a very public court battle before the same judge who had just announced he would not allow his court to be used as a shield.
"They were going to lose," Bryant says, so rather than fight it out in public, Remington agreed to unseal the documents.
There was a catch, however.
While Remington agreed it would not enforce any of the protective orders it had obtained through the years, the company itself would make no further effort to make any documents available. In other words, anyone who wanted to know more about what the company knew and when it knew it would have to find the documents for themselves from parties who already had them.
That brought us back to Montana.
It is hard to overstate the extent to which Remington has transformed Richard Barber's life.
A former contractor with a tough, almost mechanical demeanor, he is a voracious reader, an avid shooter and a staunch gun rights advocate. These days, he never leaves home without at least a handgun, and says he handles a firearm nearly as often as he drives a car. It's hard to imagine the trajectory his life might have taken were it not for the events of Oct. 23, 2000.
At the time, Barber had a construction business outside Bozeman, and a young family — his wife Barbara, 12-year-old daughter Chanda, and 9-year-old son Gus. He says that on a family hunting trip that day, Barbara's Remington 700 rifle fired when she switched off the safety to unload it. The bullet went through a horse trailer, which Gus — unbeknownst to all — had just darted behind. The boy never had a chance. He died at the hospital.
"I promised Gus that I would never be bought off and that I would never quit until I've effected change," Barber says.
The Barbers sued Remington and DuPont the following year for wrongful death. The case settled quickly, before much evidence exchanged hands, so there was no need for a protective order. The parties did, however, agree to keep the dollar amount of the settlement confidential.
But Barber says Remington went back on a verbal promise to do away with the Walker trigger. Instead, Remington would develop a new design — dubbed the X-Mark Pro — but sell it alongside the old one. Under the class-action settlement, Remington is offering to retrofit Walker trigger-equipped rifles with the X-Mark Pro or a similar design. (The company is also recalling X-Mark Pro triggers produced between 2006 and 2014 because of an unrelated manufacturing defect that can cause them to fire without a trigger pull.)
Gus Barber's death would launch a crusade that has taken Rich across the country, and put him in touch with accident victims, attorneys, firearms experts, law enforcement and military officers, as well as present and former Remington employees. In the process, he amassed what is likely the largest cache of Remington bolt-action rifle documents anywhere outside of Remington itself. It may be the largest, period, since it covers multiple corporate owners and attorneys, and multiple decades.
As a result, he has become a sought-after expert on Remington and its rifles. He served as a paid consultant to the plaintiffs in the Pollard case for a time, but says he resigned soon after the plaintiffs joined Remington in requesting the protective order.
"That's the one thing they promised me would never happen," he says. "I basically told them that my honor, my integrity, is not subject to compensation and you can't buy me like a cheap whore."
The lead attorney for the plaintiffs, veteran class-action lawyer Mark Lanier of Houston, declined CNBC's request for an interview ahead of the final settlement hearing.
No longer bound by the plaintiffs' attorneys or by protective orders, Barber says he is eager to share all that he knows. He has supplied some documents to us in the past, but not the thousands and thousands of pages covered by the protective orders which now, suddenly, are moot.
"I'm still in awe of it," he says. "I mean there's stuff I have stored here that I can't fathom that I can really release it yet."
The materials occupy a sort of archive that Barber has never given anyone unrestricted access to until now. The only condition he placed on us was that we not reveal the space's exact location.
The archive is filled with documents dating back to the invention of the Walker trigger. There are rifles and rifle parts sent to Barber by attorneys and accident victims to analyze. And there are cases and cases of DVDs. Some contain witness testimony from depositions. Others have outtakes from a video Remington commissioned in 2010 in response to the CNBC documentary.
In one, a Remington vice president — Jason Schauble — jokes with the video's producer and narrator, Joie Chen.
"Why am I here representing Remington?" Schauble laughs. "'Cause despite this baby face, I'm a cold-blooded killer."
Barber calls that exchange "hurtful." Schauble, who has since left the company, did not respond to an email from CNBC seeking a comment. Chen told CNBC she has nothing to add.
In another outtake, Schauble and Chen discuss how much sympathy to show toward the Barber family, who were central figures in the CNBC program. Chen suggests Schauble reference the Ten Commandments of Firearm Safety, which Remington contends will prevent all firearm injuries.
In the edited video, Schauble proclaims his "deepest sorrow" for the Barbers, but the response goes on to suggest that the condition of the rifle may have been to blame for the accident. Barber sued Remington for defamation over the response, but a court dismissed the case earlier this year after ruling that as part of the 2002 wrongful death settlement, the Barbers had released the company from further claims.
Also left on the cutting room floor: Schauble and Chen wrestling with how to handle 98-year-old Mike Walker, the Remington engineer who had told CNBC he proposed a safer design for his firing mechanism only to have it rejected because of the cost. Chen had also attempted to interview Walker following the 2010 CNBC program, but he does not appear in the response video.
Schauble suggests describing the CNBC interview as an ambush, even though Walker had invited us to his home, a single-family unit in a North Carolina retirement community.
"Mike Walker, who hasn't been in a plant since 1975 and is in an assisted living facility, and they followed him around until they could string several words together to get him to say something that sounded improper," Schauble offers.
But Chen warns him not to go too far.
"I have to tell you that they didn't have to follow Mike Walker very much to get him to say something bad," she confides. "He's a pissy old man."
She says Walker had spent "more than half the time" in her interview talking negatively about Remington. But one would not know that from the edited video.
"Mike Walker is a legend in the Remington community," Schauble says. "He's one of our most distinguished inventors and engineers. He's a revered employee. We feel it's irresponsible that CNBC cornered the man and tried to get him to say things that were bad about Remington."
Walker died in 2013 at age 101, but not before giving a videotaped deposition for attorneys in the pending liability cases. Under oath in 2011, he confirms that he had proposed an alternative design, and also notes that he complained that the metal Remington was using in some of the parts was not durable enough. But he also testifies he never personally saw a bad safety in the rifles he designed, and accuses Rich Barber of misleading him about the number of incidents — an allegation Barber denies.
"Everything I ever told him, I quoted from Remington's own documents," Barber says.
Those documents paint the picture of a company well-aware of the thousands of customer complaints about unintended firings of the popular rifles, and wrestling internally over what to do about the issue. Some of the documents appear on DuPont stationery with an imprint that seems almost quaint by today's Internet age standard: "Don't Say it, Write it." And write it they did.
Like any manufacturer, Remington had to weigh the sometimes-competing goals of safety, customer satisfaction and profits. Often, it seems, profits won out.
As CNBC reported in 2010, Remington routinely instructed its customer service representatives not to let on to complaining customers that others had contacted the company about the same issue. But the documents reveal that Remington's public statements have gone well beyond just limiting the flow of information.
"No scientific test has ever supported the accidental discharge theory of plaintiffs' lawyers and their expert," Remington wrote in response to CNBC's 2010 documentary.
In addition, the company said, "Both Remington and experts hired by plaintiff attorneys have conducted testing on guns returned from the field which were alleged to have fired without a trigger pull, and neither has ever been able to duplicate such an event on guns which had been properly maintained and which had not been altered after sale."
But the newly revealed documents tell a different story.
"Inadvertent firings may be an infrequent, random phenomena caused by debris," concludes a 1995 scientific study — which Remington commissioned — conducted by H.P. White Laboratory, an independent, Maryland-based ballistics testing firm.
Researchers were evaluating a proposed modification of the Model 700 firing mechanism, and comparing it to the existing design. One of the tests involved blowing sand and dust into the mechanism to simulate conditions in the field.
The researchers say the guns performed normally during the test, so the debris had no effect on safety during the firing sequence. But as the guns were being cleaned following that test, two of them — one with the modification and one without — inadvertently fired, according to the report. But researchers could not get the malfunction to happen again, which they concluded was because the firing itself, and recycling the bolt, cleared the debris. It is exactly the theory that plaintiffs' experts have alleged for years, and might explain Remington's claim that it has been unable to duplicate the problem on guns that have been returned.
A finding by an independent ballistics laboratory that Remington Model 700 rifles can inadvertently fire at random might be of interest to plaintiffs in other cases, not to mention the millions of people who own the guns. But the study was hidden from the public until now.
It surfaced briefly in a 2005 lawsuit against Remington by a Texas man, Trevor Williams, who was severely injured when a friend's Model 710 rifle went off during a hunting trip. A jury found in favor of Remington, but the company nonetheless agreed to pay Williams $1.4 million under a settlement agreement. By taking the deal, however, Williams and his attorneys agreed to keep all of the documents Remington had produced secret — including the lab report — under a protective order both sides agreed to early in the case.
The documents also include dozens of inspection reports on guns that had been returned by customers who complained they had malfunctioned.
While records show most of the allegedly defective guns returned to Remington had indeed been altered or adjusted by the customer, a 1980 "plant audit" conducted by the company reveals 22 instances in an 18-month period in which guns could be made to go off without pulling the trigger "because of causes due to manufacture." While the audit concludes that just 0.6 percent of guns in the field might be subject to the condition, 0.6 percent of 7.5 million guns is 45,000. And that is only based on guns that customers returned to the company. The memo notes that Remington had decided a year earlier to launch a gun safety campaign rather than recall the Model 700.
The document — which appears to contradict Remington's claim that every inadvertent firing is the result of user error — turned up in a 2009 class-action suit by an Oklahoma man, Jantz Kinzer, who claimed his Model 700 rifle was defective. The case was eventually dismissed, and the memo remained hidden until now by a protective order.
But sometimes, getting Remington to turn over documents in the first place has been a battle.
Our investigation found 15 cases in which courts sanctioned Remington for abusing the discovery process — dragging its feet, or not turning over evidence despite court orders to do so. On at least one occasion, in 1983, a California state judge found the company in contempt of court for "a flagrant disregard of the law, which (has) caused a waste of judicial and legal time, has been obstructive and offensive to the administration of justice, and unfair to the other litigants herein."
Discovery disputes are common in civil suits, but not like this, Bryant says.
"In my experience, what Remington has been doing is extraordinarily beyond the pale," Bryant says. "Are there companies that won't admit what's wrong with their products or that try to hide the ball in discovery? Yes. But Remington is taking it to a whole different level."
That includes a novel argument in a 1991 case: that the company's penchant for secrecy would actually make its products safer. That was Remington's position in court papers filed after a plaintiff demanded that the company turn over information about a program to design a new bolt-action rifle as an alternative to the 700.
"Remington argues that mandatory disclosure of the questioned documents would have the effect of destroying its incentive to improve product safety, contending that the adversarial use of post-manufacture research efforts will discourage the development of new products," attorneys argued.
The argument went all the way to the Texas Supreme Court, but ultimately it didn't fly. Remington was forced to turn over the documents, then promptly lost a $17 million jury verdict in the case of Glenn Collins, a Texas man who lost his foot after his Model 700 went off. Collins' attorneys had argued the design program was proof that Remington knew its rifle was flawed. It remains the largest verdict ever against Remington in a Model 700 case, but the company still would not change the design.
Despite its warnings in the Collins case that disclosure would be bad for product safety, Remington did not stop developing new products or researching alternative designs for the 700 series firing mechanism. The newly unsealed documents show multiple proposed design changes dating back to the 1940s. They include the alternative design for the safety proposed by Mike Walker himself before the gun went on the market, as well as guns that did away with the controversial trigger connector, and guns that included a secondary safety.
But even as customer complaints and lawsuits piled up, the company stuck by the Walker trigger, insisting to this day that it is safe.
The newly public documents offer one possible reason the company might be reluctant to change a product's design: it could hurt Remington in court.
Handwritten notes from Remington engineers show the legal department heavily involved throughout the design process, even insisting in that 1989 meeting that the redesign carry a different model number so the company can continue to "defend" the existing design.
And notes from 1993 on how to deal with the issue of "F.S.R." — Remington's internal term for the guns firing when the safety is released — describe the liability issues involved in changing the design, demanding that any change be "readily defensible."
But a handwritten note inside a 1990 report describes the concern the most bluntly:
"Would it sell more guns?" writes an executive identified only as "RHP." "I think so."
But he asks if a design change could "also get us by the plaintiff attorneys (saying) 'you've changed so you're guilty'?"
The fact that Remington is still insisting the rifles are safe, even as it agrees to replace as many as 7.5 million triggers, is too much for Idaho-based firearms expert Jack Belk. He has been testifying as a paid expert against Remington in liability cases dating back to 1993. He was also a paid consultant to the plaintiffs in the Pollard class-action case, but says he was fired after 18 months when he began raising concerns about the proposed settlement.
Now, Belk has filed a formal objection to the class-action settlement, calling it "a bad deal for the rifle owners of America."
"There is no provision for widespread publicly disseminated educational information whatsoever concerning what Remington has known to be a defect for more than 65 years," Belk wrote in a September court filing.
Belk and others have also raised questions about whether the replacement trigger — the X-Mark Pro — is reliable. Both Remington and plaintiffs' lawyers have said in court filings that it is. There are also questions about whether the company or the plaintiffs are doing enough to inform the public about the trigger replacement offer, and why the owners of rifle models that the company says are too old to be retrofitted are only entitled to receive Remington product vouchers worth between $10 and $12.50.
"I would rather have the truth from Remington than a $12 hat," Belk writes.
But there is little incentive for either Remington or the plaintiffs to tinker with the settlement at this point. The company has said it wants to settle the suit "to avoid the uncertainties and expense of protracted litigation," while the plaintiffs' attorneys have already petitioned the court for the $12.5 million in fees they stand to collect once the deal is approved.
The plaintiffs' attorneys, representing nine law firms in eight states, defend the fees, arguing in a court filing last month that they reflect "nearly three years of hard fought litigation."
In a separate filing, the plaintiffs and Remington call the formal objections to the settlement "meritless." They note that since the proposed settlement became public one year ago, only three people have filed objections. But Judge Smith cited some of those objections in postponing the settlement hearing. In addition to questioning the response rate, objectors raised concerns about whether gun owners could still raise individual claims for injuries, and whether the proposed settlement runs afoul of any state consumer laws.
Public Justice is not objecting to the settlement, even though Arthur Bryant says the website where gun owners can go for information and to file claims is woefully unclear. The key, he says, will be education.
"What is essential for this case to really succeed is a massive campaign if the settlement is approved, after the settlement is approved, so everyone understands how dangerous these guns are, and files a claim," Bryant says.
The settlement requires the parties to publicize the trigger replacement offer through direct mail, print ads and the website. But time is short. The settlement provides only an 18-month window for gun owners to file a claim. Rich Barber figures that is where he and his document archive come in.
"What I can say today for the first time is, there's a well of knowledge out there that has never existed before," he says. Indeed, Public Justice plans to post online all of Barber's documents as well as additional documents supplied by the plaintiffs' attorneys. The total pages could be well over 1 million.
Barber had also asked to address the court at the Dec. 14 settlement hearing, a request the judge had granted before then postponing it. In the past, Barber has said he supports the settlement, calling it "the best deal the public's going to get."
Regardless, he doesn't plan to leave public awareness about the settlement to chance. With the protective orders now effectively lifted, he says he now has the opportunity to share everything he knows.
And with that, Barber says, he will have fulfilled the promise he made 15 years ago to his dead son — a prospect that evokes some of the emotion that Barber says he is only now starting to feel again.
"I'll never leave Gus behind. People don't die and are just gone. What immortalizes us is that we're never forgotten. The things we've learned from Gus will be immortalized. And I don't think that Remington will ever forget his name."