Full opinion text
MEMORANDUM, ORDER, AND JUDGMENT FINDINGS OF FACT AND LAW WEINSTEIN, Senior District Judge. Table of Contents PART ONE Summary of Case 446 I. Contentions of Parties.446 II. Factual Background.447 III. Law 448 IV. Procedures. rfX ZO V. Conclusions of Fact and Law. ^ 4^ A. Nuisance and Its Causes and Prevention 4^ B. Failure to Prove a Special Kind of Harm rfSk. cn C. Culpability for Violent Urban Crime ... 4**> cn PART TWO Findings of Law 4^ cn 4^ I. Standing and Jurisdiction.454 A. Standing.454 B. Subject Matter Jurisdiction.455 C. Personal Jurisdiction.455 Potential Bars.4FÍ6 II. Effect of the Hamilton Litigation and People of the State of New York v. Sturm, Ruger & Co. Oi > 1. Background. 05 a. Hamilton. a> b. People of the State of New York v. Sturm, Ruger & Co. 2. Stare Decisis and the Rule of Erie . 3. Res Judicata. Second Amendment to the United States Constitution. to Commerce Clause. Principles of Separation of Powers, Federalism, and Comity... III. Jury.464 A. Procedures Used.465 B. Seventh Amendment Right to a Trial by Jury.465 C. The Advisory Jury.467 1. Use in an Equitable Action to Enjoin a Public Nuisance.469 2. Verdict is Non-Binding.471 3. Non-Unanimous Verdict.473 TV. Burden of Proof.477 A. New York State Law Determines the Burden of Proof..'.477 B. Burden of Proof is Clear and Convincing Evidence.477 V. Public Nuisance.480 A. History and Development.480 B. Law.482 1. Existence of a Public Nuisance .482 2. Conduct of the Defendants Creating, Contributing to, or Maintaining the Nuisance.487 a. Tortious Conduct.487 (1). Intentional Conduct .487 (2). Negligent Conduct .489 b. Causation.492 (1). Factual Cause .492 (2). Proximate Cause.495 3. Particular Harm.497 PART THREE Findings of Fact 499 PART THREE A Findings Based upon Defendants’ Proposed Findings as Modified by the Court 499 I. Procedural Posture.499 II. Parties.500 III. Related Litigation.500 IV. Structure of Firearms Market.501 V. Regulation of the Firearms Market.501 VI. Tracing . CO O LO A. AFT Disclosure of Trace Data. CO O LO B. Limitations of Trace Data . ■'sP O LQ C. Use of Trace Data — Generally. to O LQ D. Use of Trace Data — Focused Inspections. CO O LQ VII. Firearm Industry Cooperation with ATF. CO O UO VIII. Defendants’ Compliance with Laws and Regulations. or o IX. Criminal Acquisition of Firearms. to lO X. Plaintiffs Injuries. 00 o XI. Declining Homicide Rates . 05 o 1C XII. Evidence Tying Defendants’ Conduct to Plaintiffs Injuries. CR O CO XIII. Plaintiffs Statistical Analysis of the Trace Database. O T — I A. Sample. O 1 — 1 B. Age Bias in the Selection of Firearms to Trace. 1 — 1 1 — ( C. FTS Data Are Properly Collected and Analyzed by the ATF and Were Properly Analyzed by Experts for Plaintiff. i — I D. Changing Methods and Standards of FTS Data Collection. tH E. Plaintiffs Experts’ Use of the FTS Database. t-H F. Other Data. i — l 1. Smith & Wesson Warranty Card Information. i — l 2. Dealer Survey. t — H G. Calculation Methods. i — t 1. Manufacturer Practices Regression. i-H 2. Dealer Indicators. t — H 3. Traces Related to Straw Purchases. i — l 4. Problem Dealer Groups. i — l 5. Flow of Guns. i — l 6. of Guns Used in Crime. i — 1 7. Homicides and Number of Dealers. i — l XIV. Analyses of the FTS Database . XV. Analysis of Defendants’ Practices. XVI. Special Findings as to Carl Walther GmbH.■.. XVII. Special Findings as to Fabbrica D’Armi Pietro Beretta S.p.A. XVIII. Special Findings as to Browning Arms Co. and Arms Technology Inc. CO 1 — 1 XIX. Special Findings as to Ceska Zbrojovka, A.S. and CZ-USA, Inc. XX. Special Findings as to Excel Industries, Inc. XXI. Special Findings as to Braztech International, L.C.; Forjas Taurus S.A; and Taurus International Manufacturing, Inc. h-i <1 XXII. Special Findings as to Bersa S.A.; Eagle Imports, Inc.; Imports Sports, Inc.; SGS Importers International, Inc.; Haskell Manufacturing, Inc.; K.B.I., Inc.; Fratelli Tanfoglio S.n.c.; Israel Military Industries Ltd.; and Century International Arms, Inc. 518 PART THREE B Findings Based upon Plaintiffs Proposed Findings as Modified by the Court 519 I. Plaintiffs Witnesses and Contentions .519 II. Public Nuisance in New York.519 III. Defendants Contribute to the Proliferation of Guns Illegally Possessed and Used in New York.521 IV. Defendants.523 V. Evidence in the Record Demonstrated Specific Injury Suffered by Plaintiff.523 VI. Remedies Sought.524 VII. Damages of a Special Kind.526 PART THREE C Findings Based upon Joint Submission by Observers, Attorney General of the State of New York and Corporation Counsel of the City of New York as Modified by the Court 526 PART FOUR Conclusion 526 Appendices 526 Criminal Users of Handguns.527 Percent of Handguns Sold in 1996 Used in Violent Crime by 2000 By Manufacturer.528 The Majority of Recovered Handguns that were Purchased Out of State were Purchased in States with Weaker Gun Laws .529 Open Society Institute, Gun Control in the United States: A Comparative Survey of Firearms (April 2000).530 Market Share of U.S. Sales 1996-2000 By Manufacturer; Share of Young Crime Handgun Traces 1996-2000 By Manufacturer.531 Ratio of Young Crime Handgun Share to Overall Market Share 1996-2000 By Manufacturer.532 Market Share of Sales 1996-2000 By Distributor; Share of Young Crime Handgun Traces 1996-2000 By Distributor.533 Ratio of Young Crime Handgun Share to Overall Market Share 1996-2000 By Distributor.534 Dealer Indicators (1996-1998) Predict the Likelihood that a Dealer’s Sales are Recovered in Crime (1999-2000).535 Distribution Management: Countermarketing to Prohibited Customers (Manufacturers) .536 Awareness and Knowledge of Diversion to Prohibited Customers (Manufacturers).537 Distribution Management: Countermarketing to Prohibited Customers (Distributors) .538 Awareness and Knowledge of Diversion to Prohibited Customers (Distributors).539 PART ONE Summary of Case Plaintiff, the National Association for the Advancement of Colored People (“NAACP”), is suing for injunctive relief on its own behalf and that of its individual and potential members in the state of New York. The theory is one of public nuisance under New York state law. Jurisdiction is based upon diversity. Defendants are the main manufacturers, importers, and distributors of handguns in the United States. The case was tried in proceedings lasting some six weeks in March, April, and May 2003. See In Limine Rulings, Nat’l Ass’n for the Advancement of Colored People v. Acusport, Inc., e.g., 2003 WL 1609192 (E.D.N.Y. Mar.26, 2003); 2003 WL 1701079 (E.D.N.Y. Mar.31, 2003); 2003 WL 1701101 (E.D.N.Y. Mar.31, 2003); 2003 WL 21242939 (E.D.N.Y. Apr.l, 2003); 2003 WL 2003730 (E.D.N.Y. Apr.2, 2003); 2003 WL 2003750 (E.D.N.Y. Apr.4, 2003); 2003 WL 2003773 (Apr. 4, 2003); 2003 WL 2003788 (Apr. 7, 2003); 2003 WL 2003767 (Apr. 9, 2003); 2003 WL 2003793 (E.D.N.Y. Apr.9, 2003); 2003 WL 2003776 (E.D.N.Y. Apr.ll, 2003); 2003 WL 2003797 (E.D.N.Y. Apr.ll, 2003); 2003 WL 2003800 (E.D.N.Y. Apr.14, 2003); 2003 WL 2004527 (E.D.N.Y. Apr.15, 2003); 2003 WL 2003785 (E.D.N.Y. Apr.16, 2003); 2003 WL 2004530 (E.D.N.Y. Apr.21, 2003); 2003 WL 2004531 (E.D.N.Y. Apr.21, 2003); 2003 WL 2004532 (E.D.N.Y. Apr.24, 2003); 2003 WL 2005190 (E.D.N.Y. Apr.24, 2003); 2003 WL 2004557 (E.D.N.Y. Apr.28, 2003); 2003 WL 2004641 (E.D.N.Y. Apr.29, 2003); 2003 WL 2003780 (E.D.N.Y. Apr.30, 2003); 2003 WL 2004688 (E.D.N.Y. Apr.30, 2003); 2003 WL 2004725 (E.D.N.Y. May 1, 2003); 2003 WL 21135563 (E.D.N.Y. May 5, 2003); 2003 WL 21135571 (E.D.N.Y. May 7, 2003); 2003 WL 21135576 (E.D.N.Y. May 7, 2003); 2003 WL 21135579 (E.D.N.Y. May 8, 2003); 2003 WL 21135581 (E.D.N.Y. May 8, 2003). Findings of fact and law are based on the evidence presented at trial. The court was aided by the parties’ submissions of memoranda and proposed findings of fact and law, and by the Joint Submission of two of the observers, the Attorney General of the State of New York and the Corporation Counsel of the City of New York. The evidence presented at trial demonstrated that defendants are responsible for the creation of a public nuisance and could — voluntarily and through easily implemented changes in marketing and more discriminating control of the sales practices of those to whom they sell their guns — substantially reduce the harm occasioned by the diversion of guns to the illegal market and by the criminal possession and use of those guns. Because, however, plaintiff has failed to demonstrate, as required by New York law, that it has suffered harm different in kind from that suffered by the public at large in the state of New York, the case is dismissed. I. Contentions of Parties The NAACP contends that defendants are each liable for a public nuisance. Specifically, plaintiff asserts that large numbers of handguns are available to criminals, juveniles, and other people prohibited by law from possessing and using them in New York state; that their availability endangers the people of New York and interferes with their use of public space; that the defendants negligently and intentionally caused this nuisance although they were on notice (from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and other sources) that this would be the consequence of their imprudent sales and distribution practices throughout the United States; and that defendants negligently and intentionally failed to take practicable marketing steps that would have avoided or alleviated the nuisance by substantially reducing the pool of illegally possessed handguns in New York and in states where handguns were obtained for illegal transport to this state. According to plaintiff, the precautions defendants should have taken include: limiting multiple retail sales of guns to the same person; limiting relatively unsupervised sales of their new guns at gun shows; requiring retailers to conduct anti-straw-purchaser training and to take precautions to prevent that common circumvention of the law (a “straw purchase” being purchase by a person legally entitled to purchase a gun for one obviously not so entitled, such as a felon or youth); cutting off sales of their new guns to retailers that sell a disproportionate number of handguns traced by ATF, usually because of the connection of the guns to criminal activity; requiring retailers to maintain properly stocked, protected, and run establishments; insisting that a retailer not operate under various names to avoid surveillance as an unusual source of traced guns; inspecting retail outlets to see that they are managed appropriately to avoid any overt connection to criminal elements; and taking other inexpensive and effective steps to stop their new guns from being diverted from the legal to the illegal market. Plaintiff contends that it suffered injury different in kind from that experienced by the community at large as a result of the public nuisance caused by defendants. Defendants individually and collectively contend that they make and sell handguns in full compliance with all applicable laws of the United States, the state of New York and its municipalities, and other states, and with extensive regulation by ATF; that they conduct their individual businesses responsibly, going well beyond the dictates of the law and good practice in protecting against illegal diversion of handguns to criminals; that plaintiff improperly seeks to hold them responsible for the acts of criminals they cannot control, including those who violate the law by illegally diverting handguns to illegal use; that some of the steps proposed by plaintiff would interfere with law enforcement; that nothing about any individual defendant’s conduct or omissions or the conduct or omissions of the industry as a whole caused the diversion of handguns to criminals or caused a public nuisance in the state of New York; and that, since the problem of crime touches all citizens, the plaintiff NAACP has not proved that it or its members have suffered harm from the alleged public nuisance different in kind from whatever harm is experienced by others in New York. II. Factual Background There are, generally speaking, three tiers in the merchandising structure of the gun industry’s sale of handguns: (1) manufacturers and importers, (2) wholesale distributors, and (3) retail dealers. Entities or individuals in each of the three tiers are licensed by the ATF. Because distributors and retail dealers are classed in the same licensing category, they commonly are referred to collectively as Federal Firearms Licensees (“FFLs”). Entities and individuals in all three tiers must comply with all federal, state and local laws and regulations. Each gun manufactured in or imported into the United States must have a unique serial number that identifies the manufacturer. Manufacturers, distributors, and retailers must keep acquisition and disposition records of all firearms (identified by serial number) bought and sold or otherwise leaving the company’s control. ATF has the capability to “trace,” or to determine a handgun’s chain of sale, by individual serial number. Traces are initiated in the main from requests by law enforcement agencies to ATF based on the serial number of handguns recovered in connection with criminal investigations. The tracing process works essentially as follows: Upon receipt of a trace request from a law enforcement agency, ATF contacts the manufacturer identified by the serial number. The manufacturer’s records will point to the gun’s distributor, who is then queried. That distributor’s records will reveal the retail dealer. When asked to respond by ATF, the retailer’s records will indicate the consumer to whom the handgun was sold. The progress and results of the trace are recorded and retained by ATF in a complex database called the Firearms Tracing System, or FTS database. To aid it in its work, ATF also maintains a second and independent database, called the Firearms Licensing System (“FLS”), which contains records of FFLs kept pursuant to the Gun Control Act of 1968 and other controlling laws and includes, among other data, an FFL’s name, number, and application history. This scheme, tracing millions of guns involved in criminal investigations over recent years, is of great assistance to local and national law enforcement. In the instant case major portions of these large and detailed databases were made available to experts for both sides as part of the civil discovery process. It was the basis of statistical and other analyses by all parties. Plaintiffs experts contended, and defendants’ experts denied, that the traces can be utilized in conjunction with other readily available information by manufacturers and distributors acting cooperatively to identify which retail dealers sell a relatively high number of guns traced in connection with criminal investigations, and thus, in the larger statistical sense, linked to probable criminal conduct. III. Law Plaintiffs case is based on the New York law of public nuisance. The term “public nuisance” means the private interference with the exercise of a public right. In order to establish a defendant’s liability for public nuisance, a plaintiff must prove each of three elements by clear and convincing evidence: 1. the existence of a public nuisance — a substantial interference with a right common to the public; 2. negligent or intentional conduct or omissions by a defendant that create, contribute to, or maintain that public nuisance; and 8. particular harm suffered by plaintiff different in kind from that suffered by the community at large as a result of that public nuisance. First, an interference with a public right occurs when the health, safety, or comfort of a considerable number of persons in New York is endangered or injured, or the use by the public of a public place is hindered. To be substantial, an interference with a public right must be real and appreciable, not imagined or petty. The circumstances to be considered in deciding whether such a nuisance exists include the nature of a defendant’s business; the nature and degree of the danger to the public; whether the conduct is prohibited or permitted by statute, ordinance, or administrative regulation; whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect; and how, if at all, the danger could be reduced. Second, a defendant must have acted intentionally or negligently, and its tortious conduct or omissions must have created, contributed to, or maintained the alleged public nuisance. Intervening criminal actions do not break the chain of causation if a defendant could reasonably have expected that intervention. In an action for injunctive relief, individual defendants may be held liable for tortious conduct creating in the aggregate a public nuisance. Third, even if a public nuisance exists, and a defendant’s actions or failures to act created, contributed to, or maintained it, a private plaintiff must show that it has suffered a special injury before a successful claim for public nuisance will lie. That is to say, the NAACP or its members must have suffered harm in New York different in kind from the harm experienced by members of the community at large. Differences in degree do not suffice. There must be differences in “kind” under New York law. This requirement is peculiar to public nuisance claims raised by a private plaintiff; it apparently does not apply to a suit brought by a governmental entity such as the Attorney General for the State of New York, or by the Corporation Counsel for the City of New York or the United States Attorney for the Eastern District of New York, all of whom are present in this case as “observers,” but not as “parties.” IV. Procedures Because this equity case is of major public interest affecting large numbers of people, an advisory jury was empaneled. A searching questionnaire and voir dire produced a highly intelligent jury. Its diverse members represent a cross section of the community experienced in the heterogeneous conditions of life in New York. It sat for six weeks examining technical statistical and other studies with the aid of qualified experts from the fields of statistics, merchandising, and criminology; large data sources; extensive video depositions; government reports; and other proof. Ultimately the jury advised that some defendants were not hable, but it could not agree on the liability of others. One of the jury’s key difficulties was expressed in its first note indicating an inability to reach a decision. It wrote: “We, the members of the jury, cannot reach a unanimous decision as to whether any particular harm was suffered by plaintiff.” (emphasis added). Under the Federal Rules of Civil Procedure, the ultimate decision on liability in a case where an advisory jury is empaneled must be made by the court with explicit findings of fact and law. See Fed.R.Civ.P. 52(a) (2003). “The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points” which occur in it, require a finding by the court on each of the elements of the plaintiffs cause of action. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154, 2 L.Ed. 60 (1803). V. Conclusions of Fact and Law A. Nuisance and Its Causes and Prevention Plaintiff did establish by clear and convincing evidence the first two of the three elements it was required to prove as to defendants. See Part Three A, XVI-XXII, infra as to specific defendants. It proved that the criminal possession and use of handguns in New York causes many unnecessary deaths and much unnecessary injury, with relatively greater adverse effect on the NAACP and its members. Its witnesses and proof were more credible and probative than that produced by defendants. The evidence at trial demonstrated that the manufacturers and distributors — marketing tiers one and two — can, through the use of handgun traces and other sources of information, substantially reduce the number of firearms leaking into the illegal secondary market and ultimately into the hands of criminals in New York. A responsible and consistent program of monitoring their own sales practices, enforcing good practices by contract, and the entirely practicable supervision of sales of their products by the companies to which they sell could keep thousands of handguns from diversion into criminal use in New York. This supervision and control if voluntarily undertaken would be consistent with that of other industries involved with dangerous products. It would not interfere with criminal law enforcement at any level of government, but would be welcomed by all law enforcement agencies. Careless practices and lack of appropriate precautions on the part of some retailers lead to the diversion of a large number of handguns from the legal primary market into a substantial illegal secondary market. This deflection results in the use of a great number of handguns in connection with increased criminal activity. These inappropriate actions by retailers include “straw sales” — that is, as already noted, sales to a person authorized to buy at retail but buying on behalf of one not so authorized, such as a felon or youth — and many repeat sales (sale of a number of handguns to the same person over a relatively short period of time) or multiple sales (sale of a number of handguns to the same consumer or straw purchaser at the same time). This and other unsafe conduct alleged and proved by plaintiff can be blocked through contract between retailers and distributors, and between distributors and manufacturers. The flow of guns into criminal hands in New York would substantially decrease if manufacturers and distributors insisted that retail dealers who sell their guns be responsible — e.g., that they not sell at gun shows, but sell from the equivalent of a store front with a supply of stocked guns; that they not sell under a variety of names; that they protect against theft; that they train and supervise employees to prevent straw sales (which are often notoriously obvious to the seller); and that they take other appropriate and available protective action. That the industry has improved its practices in recent years was demonstrated by defendants. The number of individuals and entities licensed to sell firearms at the distributor or dealer level, FFLs, has been sharply reduced, making supervision by the ATF, manufacturers, and distributors easier. The industry has begun to produce literature and training in conjunction with the ATF to help retailers reduce straw sales. Some individuals and companies have recognized the need for the more effective and conscientious merchandising techniques that would save lives, particularly in urban areas. These steps are late, too few, and even now insufficiently embraced by most individual defendants to eliminate or even appreciably reduce the public nuisance they individually and collectively have created. Members of the industry continue to fail to take many obvious and easily implemented steps, such as requiring retailers to avoid multiple or repeat sales to the same customers. Such steps are an effective way of checking illegal handgun diversion as revealed by the fact that Virginia, which was a major supplier of illegal handguns to New York, almost immediately largely choked off that supply when it enacted a law limiting multiple sales to the same person. Such a limitation could readily be instituted by contract in industry-wide practice and would substantially reduce the stream of illegally possessed handguns flowing into New York. The industry as a whole has not adopted a responsible approach to limiting sales and supervising its retail outlets for two main reasons: (1) some members of the industry believe that a unified, well-organized voluntary attempt to limit diversion of guns to criminals would be the equivalent of a public recognition of its failures to take such steps in the past with an implied responsibility for thousands of avoidable deaths, and (2) a strong ideological sense of individuals and organizations associated with the industry — particularly the National Rifle Association and its members — that any limits on merchandising by statute or private initiative, even though lives would be saved, imposes an unacceptable circumscription of the right of individuals to bear arms. Some manufacturers have attempted to control irresponsible handgun sales and to reform the industry; they have largely abandoned these efforts, surrendering to potential boycotts and other forms of pressure brought on these two grounds. In short, the NAACP has demonstrated the great harm done to the New York public by the use and threat of use of illegally available handguns in urban communities. It also has shown that the diversion of large numbers of handguns into the secondary illegal market, and subsequently into dangerous criminal activities, could be substantially reduced through policies voluntarily adopted by manufacturers and distributors of handguns without additional legislation. B. Failure to Prove a Special Kind of Harm Plaintiff did not establish by the required clear and convincing evidence that it suffered the special kind of harm required under New York Law to establish its private cause of action. The NAACP proved that its members and potential members — now predominately African-Americans — did suffer relatively more harm from the nuisance created by defendants through the unnecessary illegal availability of guns in New York. It failed, however, to show that its harm was different in kind from that suffered by other persons in New York. All organizations and persons in this state are guaranteed the equal protection of the law. All are entitled to law enforcement that provides as much equal protection as is practicable from criminally caused death and injury through the use of handguns. While the NAACP has shown that more prudent and easily available merchandising practices on the part of the defendants would have saved many lives in the past — and would save many in the future — in New York, its hurts are no different in kind from those of other New Yorkers. Like their fellow countrymen, NAACP members and potential members are “hurt by the same weapons;” when shot by illegal handguns they, like others, “bleed.” William Shakespeare, The Merchant of Venice act 3, sc. 1. The fact that the NAACP and the rest of the community can and would be better protected against handgun violence by relatively cheap and simple responsible policies of manufacturers and distributors of handguns is not decisive. Ironically, the demonstration that all New Yorkers would gain from this method of reducing a dangerous public nuisance prevents the NAACP from obtaining relief under New York law on the ground that it suffers a special kind of harm from irresponsible handgun marketing. C. Culpability for Violent Urban Crime Were it shown that the government was giving inadequate protection against gun violence to neighborhoods of a predominantly African-American population, a suit would lie against the municipality on equal protection or other grounds. See City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); DeMuria v. Hawkes, 328 F.3d 704 (2d Cir.2003) (holding allegations that police officer provided two residents with different standard of police protection than that typically afforded municipality’s residents supported equal protection claim). There is absolutely no such showing here, and in any event the defendants could not be deemed responsible for gun violence under such a theory. Nor is the line of cases in which an individual corporation is deemed to be in effect a municipality for these purposes applicable. See Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). There is no suggestion that the defendants had any direct control over or relationship with New York’s criminal milieu. Defendants vehemently and with some indignation deny that they are responsible for the bulk of criminal conduct and violent crime in urban areas. Their position is understandable, based on the record. The probability of being exposed to violent criminality involving handguns is so much a product of the incredibly complex skein of family and friends, neighborhood and socio-economic status, and expectations and luck, that the gun industry can understandably contend that its contribution to gun crime is relatively slight. Yet it remains appreciable as well as largely avoidable. The defendants, viewed in the broadest sense, are less culpable than some other elements of society, but their culpability nevertheless cannot be ignored. In the twenty year period between 1979 and 1998, there were just under 300,000 firearm homicides in the United States; handguns were involved in countless more non-fatal injuries and other criminal activity. In the years between 1990 and 2000, on average 662,000 incidents of violent crime were committed nationally with handguns each year. While defendants are justified in disclaiming liability for all these violent crimes and the resulting injuries and deaths, that is hardly a justification for failure to take elementary steps that the evidence demonstrated would have saved the lives of many people unnecessarily lost to handgun violence, and could save the lives of myriad more. The power of the gun industry to reduce deaths from their products is estimated to run into the thousands in any decade. The well supported testimony of plaintiffs expert Lucy Allen was that after increased restrictions on firearms dealers took effect in 1993-1994, a statistically significant relationship between the number of dealers subsequently going out of business in a state and the decline in handgun homicides in the states to which traced handguns originating in that state flow supported the conclusion that approximately 1500 additional homicides would have occurred in the year 2000 had the excluded dealers remained in business. This case reflects the conjunction of three main elements of American societal organization that historically have cooperated in the interest of the welfare of our people: (1) voluntary non-profit, religious, and other private associations of involved members of the community, here the NAACP seeking to limit the possession of handguns by criminals threatening the safety of New York urban residents on the one hand, and on the other organizations of gun owners bent on limiting control over their lawful possession of firearms; (2) government, here federal, state, and local, through statutes and exercise of regulatory and police power to limit illegal possession and use of handguns; and (3) private entrepreneurial structures, here manufacturers, importers, and distributors of handguns, who control the flow of their product to retailers. These three main components of American organizational life have failed to protect adequately against urban gun violence in different ways. Voluntary non-profit, religious, and other private associations have failed in reducing the proclivity of youngsters in some communities to be drawn into violent lawlessness. Individual family structures, peer pressures, and neighborhood controls have also been less than fully successful in this respect, often for reasons beyond their immediate control. Government has failed to provide the socio-economic stability, work, and education that might reduce criminal propensities. Some contend that the federal and state governments are also at fault for failing to exercise more control over handgun sales. See, e.g., Open Society Institute, Gun Control in the United States: A Comparative Survey of State Firearm Laws (April 2000); Mona A. Wright, Gar-en J. Wintemute, & Frederick P. Rivara, Effectiveness of Denial of Handgun Purchase to Persons Believed to Be at High Risk for Firearm Violence, 89 Am. J. Pub. Health 88-90 (1999). It would, however, require a form of political myopia to ignore the effect of strong differences of opinion among substantial articulate portions of the population — particularly urban vs. rural — on governmental gun control and related policies. Cf The Federalist No. 10 (James Madison) (foreseeing factional differences that must be resolved through compromise not completely satisfactory to any of the factions’ strong opposing views). Private manufacturers and distributors of handguns have failed to take minimum circumspect steps to limit leakage of their guns into criminal hands. The evidence showed that the portion of the FTS data available to the industry together with other on hand information could be used by defendants to substantially reduce sales of guns to “bad apple” dangerous retailers or to insist that such merchants change their practices. The huge amount of relevant data available as a result of the opening up of the ATF’s trace request databases in federal discovery practice in this case may not be ignored — as the defendants argue it should be. Obviously the raw data itself is of little value without analysis and theory— “the data alone would be worthless without a theory to give them meaning.” James Gleick, Isaac Newton 153 (2003). Neither the ATF’s data bases nor the analyses of the plaintiff’s experts are perfect. Together they do give us a picture only slightly out of focus of the merchandising practices of defendants that enormously increase the probability of unnecessary deaths caused by criminals using the guns they sell. Plaintiffs experts, contrary to the caviling of defendants’ experts, have produced “a practical formula for calculating ... a hybrid sequence of equations and measurements,” id. at 155, that tell us what we need to know with accuracy sufficient to the enterprise. See Falise v. Am. Tobacco Co., 258 F.Supp.2d 63, 67-68 (E.D.N.Y.2000) (approval of statistical analysis and experts’ opinions based partly on estimates and lack of full randomly selected data in compliance with Daubert requirements). Prudent merchandising practices voluntarily adopted could have, and could in the future, save the lives of many people who have been, or will be, killed by handguns irresponsibly merchandised by defendants. The evidence demonstrated that there is, in the reduction of dangers from handguns, no inconsistency or necessary conflict in the aims and actions of these three groups — government, industry, and private associations — whose affinity and cooperation should be congenial. Each can help reduce criminal use of handguns without jeopardizing its own integrity: the government by more effective enforcement of adequate gun laws; industry by controlling its own members through contract and other devices to help ensure that its handguns are not diverted to an illegal market for criminals; and private organizations by helping to reduce criminal and careless conduct of those it can influence. Personal responsibility of all these and of potential criminals — however influenced — is the ultimate touchstone. Vehement differences of opinion concerning the role of guns in our society and the proper function of each element of society in promoting that role do not excuse private industry from exercising its responsibilities to the public at large. In the end, “there is nothing to do except to ... declare what fair and reasonable men, mindful of the habits of life of the community, and of the standards of justice and fair dealing prevalent among them, ought in such circumstances to do.... ” Benjamin N. Cardozo, The Nature of the Judicial Process 142-43 (1921); see also Plato, Laws, in John Bartlett, Familiar Quotations 96a (14th ed. 1968) (“And this ... is the very highest ... right idea ... whereby you may live your life well or ill.”); cf. Harold Hongju Koh, Lecture, A World Drowning in Guns, 71 Fordham L.Rev. 2333 (2003). A free people and its institutions do not need the government to require them to do what they know they ought to do to prevent unnecessary violence from handguns, nor is industry prevented from monitoring itself by any rule of law. Cf. Jacob M. Schlesinger & Thaddeus Herrick, Will the Industry Police Itself?, Wall Street J., May 21, 2003, at A1 (voluntary measures taken by other industries). But cf. William Lee Miller, Lincoln’s Virtues: An Ethical Biography 387 (2002) (“Think of the rationalizations, the resistance, the difficulty of winning even small victories over the tobacco industry, at the time of this writing. And tobacco is a much less egregious evil, and is a much smaller industry, than was slavery. And its harmful effects are differently distributed across the population.”); James B. Jacobs, Can Gun Control Work? (2002) (skeptical of any controls that will reduce gun violence). PART TWO Findings of Law This case raises a number of perplexing issues in addition to the question- of ultimate liability: 1. Does the NAACP have standing to bring an action sounding in public nuisance for injunctive relief against gun manufacturers, importers, and distributors? Does the court have personal and subject matter jurisdiction? 2. Is this action barred by prior decisions of the New York state courts and the Court of Appeals for the Second Circuit? If not, can the New York substantive common law of public nuisance live within the interstices of a fairly comprehensive federal and state statutory scheme for controlling gun sales? 3. How can and should an advisory jury and the verdict of that jury be treated in an equitable action? 4. What is the burden of proof on a private plaintiff like the NAACP in a public nuisance action arising under New York substantive law brought in a federal court in the state of New York based on diversity jurisdiction? 5. Has plaintiff proved facts suggesting that the conduct of defendants, individually or collectively, created a public nuisance in the state of New York and caused it harm of a kind different than that suffered by others? I. Standing and Jurisdiction A. Standing The question of whether the NAACP has standing to bring and maintain this action has already been answered in the affirmative. See Nat’l Ass’n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446 (E.D.N.Y.2002); see also In re Colt’s Mfg. Co. No. 02-3083 (2d Cir. March 16, 2003) (mandate). There is an actual case or controversy. See U.S. Const. Art. Ill; Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Plaintiff NAACP has established that it possesses standing in its own right: (1) it has suffered concrete, on-going injury in fact; (2) there is a causal connection between the injury suffered and the conduct of the defendants; and (3) it is probable that the injury would be substantially redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Warth v. Seldin, 422 U.S. 490, 495, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The NAACP has further established representational standing to pursue this action on behalf of its members and constituents: (1) its members can meet the requirements to show standing in their own right; (2) the interests sought to be protected are germane to its purpose; and (3) no participation in the suit by the individual members is required. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The NAACP has not, after trial, met its burden of proof on the quasi-standing element of its public nuisance claim — that is, the requirement in public nuisance suits brought by non-governmental persons that plaintiff demonstrate “‘special’ or ‘peculiar’ injury ... different in kind, and not just degree, from that sustained by the community.” Wheeler v. Lebanon Valley Auto Racing Corp., 303 A.D.2d 791, 755 N.Y.S.2d 763, 765 (2003) (citing 532 Madison Ave. Gourmet Foods v. Finlandia Ctr. Inc., 96 N.Y.2d 280, 727 N.Y.S.2d 49, 750 N.E.2d 1097, 1104-05 (2001)). This does not mean, however, that the NAACP and its members have failed to demonstrate injury in fact for jurisdictional purposes. To the contrary, the NAACP and the African-American community that it represents suffer great harm from the illegal use and possession of handguns and have standing. B. Subject Matter Jurisdiction Diversity jurisdiction exists. See 28 U.S.C. § 1332 (2003); Nat'l Ass’n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 458, 461-62 (E.D.N.Y.2002). The NAACP is organized under the laws of the state of New York and has its principal place of business in Maryland. While the NAACP has members in all fifty states, the District of Columbia, and overseas, the case has been limited to the harm suffered by New York members and by the NAACP in its operations and activities in New York. The case was tried according to this limitation, and the court has borne it in mind when assessing the evidence presented. The defendants are citizens of many states and several foreign countries, but none is a citizen of either Maryland or New York. The requirements for complete diversity are therefore satisfied. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Airlines Reporting Corp. v. S and N Travel, Inc., 58 F.3d 857, 862 (2d Cir.1995). C. Personal Jurisdiction Personal jurisdiction in diversity cases is determined in accordance with the law of the forum state, here New York, subject to federal due process constraints. See, e.g., Savin v. Ranier, 898 F.2d 304, 306 (2d Cir.1990); Arrowsmith v. United Press Int’l, 320 F.2d 219, 223 (2d Cir.1963); Cut-Co Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). It exists over those defendant gun manufacturers, importers, and distributors in the instant case not already dismissed for lack of personal jurisdiction. See N.Y. C.P.L.R. 302(a)(3) (2003) (providing for jurisdiction over defendants who commit a tortious act outside of New York that causes injury within New York). The court’s exercise of this jurisdiction comports with federal due process. See Nat’l Ass’n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 458, 462 (E.D.N.Y.2002); Nat’l Ass’n for the Advancement of Colored People v. A.A. Arms., 2003 WL 21242939 (E.D.N.Y. Apr. 1, 2003). Numerous motions to dismiss and renewals of motions to dismiss for lack of personal jurisdiction have been made by defendants. Those defendants allege that the evidence presented has shown that their participation in the national and New York gun markets and impact, if any, on the alleged public nuisance are insufficient to meet the standards set by the New York long arm statute and federal due process. A number of defendants for which this is the case were dismissed on de minimis grounds. See Nat’l Ass’n for the Advancement of Colored People v. A.A. Arms., 2003 WL 21242939 (E.D.N.Y. Apr. 1, 2003); Nat’l Ass’n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446 (E.D.N.Y.2002); Nat’l Ass’n for the Advancement of Colored People v. Acusport Corp., 2001 WL 282923 (E.D.N.Y. March 16, 2001); Nat’l Ass’n for the Advancement of Colored People v. Acusport Corp., 2000 WL 1789094 (E.D.N.Y. Dec.7, 2000). With the exception of those defendants who have previously contested this court’s exercise of personal jurisdiction over them, defendants concede that personal jurisdiction exists. II. Potential Bars A. Effect of the Hamilton Litigation and People of the State of New York v. Sturm, Ruger & Co. Two prior actions against members of the handgun industry are of particular relevance to the case at bar: (1) the Hamilton litigation, an action brought by individual victims of handgun violence and their representatives and tried before this court on a theory of negligence; and (2) People of the State of New York v. Sturm, Ruger & Co. (“Sturm, Ruger ”), a suit brought by the Attorney General for the State of New York in the New York state courts on a public nuisance theory. See Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 41, 46 (2d Cir.2000); Hamilton v. Beretta U.S.A. Corp., 95 N.Y.2d 878, 715 N.Y.S.2d 213, 738 N.E.2d 360 (2000); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001); Hamilton v. Beretta U.S.A Corp., 264 F.3d 21 (2d Cir.2001); Memorandum and Judgment, Hamilton v. Beretta U.S.A. Corp. No. 95 CV 49 (E.D.N.Y. Sept. 17, 2001); People of the State of New York v. Sturm, Ruger & Co., et al. Index No. 402856/00 (N.Y.Sup.Ct. Aug. 10, 2001) (Sturm, Ruger I); People of the State of New York v. Sturm, Ruger & Co., — A.D.2D -, 761 N.Y.S.2d 192 (2003) (“Sturm, Ruger IF). The effects on the instant case of decisions of the New York courts and the United States Court of Appeals for the Second Circuit in these other actions lie somewhere in the area between stare decisis and res judicata. Neither doctrine consists of hard and fast, mechanically applied rules; both require a court to exercise judgment, fairness, and comity in their administration. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205, 76 S.Ct. 273, 100 L.Ed. 199 (1956); Strubbe v. Sonnenschein, 299 F.2d 185, 188-89 (2d Cir.1962); Restatement (Second) of Judgments ch. 1, intro. (“A measure of intuition and discretion ... is required in administering the law of res judicata .... ”). 1. Background a. Hamilton The Hamilton litigation was initiated by a complaint filed in January 1995. Relatives of six people killed by handguns, as well as one injured survivor and his mother, have sued twenty-five handgun manufacturers for negligence. They claim that the manufacturers’ indiscriminate marketing and distribution practices generated an underground market in handguns, providing youths and violent criminals like the shooters in these cases with easy access to the instruments they have used with lethal effect.... After a four-week trial, the jury found negligent fifteen of the defendants; nine of them were found to have proximately caused injury to one or more plaintiffs. Damages were found only in favor of plaintiff Steven Fox and his mother, Gail Fox, against American Arms, Inc. (.23% liability), Beretta U.S.A. Corp. (6.03% liability), and Taurus International Manufacturing, Inc. (6.8% liability). Hamilton v. Accu-Tek, 62 F.Supp.2d 802, 808 (E.D.N.Y.1999). Judgment was entered in accordance with that verdict. Defendants appealed to the Court of Appeals for the Second Circuit. Because of the novelty and difficulty of the state law issues presented, the Second Circuit certified two questions to the New York Court of Appeals: (1) “[wjhether the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture”; and (2) “[w]hether liability may be apportioned on a market share basis, and if so, how.” Hamilton v. Beretta U.S.A Corp., 222 F.3d 36, 41, 46 (2d Cir.2000). The New York Court of Appeals answered both certified questions in the negative, holding that on the particular facts of the case the evidence as presented at trial did not support the imposition of a duty of care on the defendant gun manufacturers and that market share liability was inapplicable because guns are not fungible products: Tort law is ever changing; it is a reflection of the complexity and vitality of daily life. Although plaintiffs have presented us with a novel theory — negligent marketing of a potentially lethal yet legal product, based upon the acts not of one manufacturer, but of an industry — we are unconvinced that, on the record before us, the duty plaintiffs wish to impose is either reasonable or circumscribed. Nor does the market share theory of liability accurately measure defendants’ conduct. Whether, in a different ease, a duty may arise remains a question for the future. Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001); see also Hamilton v. Beretta U.S.A. Corp., 95 N.Y.2d 878, 715 N.Y.S.2d 213, 738 N.E.2d 360 (2000). Accordingly, the judgment was reversed and the case dismissed. See Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir.2001); Memorandum and Judgment, Hamilton v. Beretta U.S.A. Corp. No. 95 CV 49 (E.D.N.Y. Sept. 17, 2001). The Hamilton case, while an action against members of the handgun industry and providing some insight into the issues currently presented, is readily distinguished from the case at bar. Plaintiffs in Hamilton were individuals seeking compensation for damages to themselves arising out of specific incidents of gun violence, not an organization suing on behalf of itself and its members as a private quasi-attorney general. Hamilton was tried on claims of negligence rather than on a theory of public nuisance. b. People of the State of New York v. Sturm, Ruger & Co. In June 2000 the Attorney General of the State of New York sued certain gun manufacturers and wholesalers in New York Supreme Court, New York County. See People of the State of New York v. Sturm, Ruger & Co., et al. Index No. 402856/00 (N.Y.Sup.Ct. Aug. 10, 2001). Sought was “an abatement of an alleged public nuisance arising from the manufacture and distribution of handguns that are unlawfully possessed and used in New York.” Sturm, Ruger I at 1-2. The State Supreme Court granted defendants’ motion to dismiss the complaint for failure to state a cause of action in August 2001. See id.; N.Y. C.P.L.R. 3211(a)(7) (2003). That decision was affirmed by the Appellate Division, First Department on the Attorney General’s appeal in June 2003. See People of the State of New York v. Sturm, Ruger & Co., — A.D.2D -, 761 N.Y.S.2d 192 (2003). Shortly before trial was scheduled to commence in the instant case, defendants requested that this case be stayed pending the resolution of Sturm, Ruger, arguing that abstention in deference to the New York state courts was appropriate under Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) or Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The motion was denied in February 2003. See Nat'l Ass’n for the Advancement of Colored People, 2003 WL 1049011, at *1-*5 (E.D.N.Y. Feb.24, 2003). Important differences between Sturm, Ruger and the instant action include: (1) the timing and status of the proceedings; (2) the identity and nature of the plaintiff; (3) the defendants named; and, critically, (4) the evidence alleged or presented. The complaint in Sturm, Ruger was filed almost a year after the NAACP’s action was initiated. The New York state complaint is in a number of respects general; the form that the requested injunctive relief might take is not specified. Defendants’ motion to dismiss in the state action for failure to state a cause of action was heard and decided before answers or discovery. Sturm, Ruger was brought by the Attorney General of the State of New York on behalf of the people of New York in its capacity as parens patriae. The case stands on a different footing from one brought by a private associational plaintiff on behalf of itself and its members. The proof offered will necessarily vary somewhat from that offered by an organization or an individual claiming a public nuisance that causes it special harm. Most, but not all, of the defendants in Sturm, Ruger were also named by the NAACP in its previously filed complaints. The NAACP also, however, tried claims against a number of additional defendants. The verdict sheet in the instant action listed sixty-eight defendants, almost triple the number of entities involved in the motion to dismiss in Sturm, Ruger. The Appellate Division, First Department, premised its decision to uphold the Supreme Court’s dismissal of the complaint in Sturm, Ruger on the availability of only that ATF trace data obtained during discovery and trial of the Hamilton case. See, e.g., People of the State of New York v. Sturm, Ruger & Co., — A.D.2d -, 761 N.Y.S.2d 192, 200 (2003) (“There is no reason to believe that the level of knowledge flowing from the instant trace requests today is any greater than it was when Hamilton was decided.”). It did not take into account the critical factor that, as a part of federal discovery practice in the instant action, much more extensive and more recent data from the ATF databases was released to the parties than was available during Hamilton, or has ever before been available in any litigation. Furthermore, since the trial of Hamilton four years ago, the development of a greater understanding of the ATF database and additional scientific studies of the handgun industry and criminal handgun use have led to more sophisticated analyses of trace data. Not only are different factual transactions at issue in the instant action than in Hamilton or in Sturm, Ruger as decided by the Appellate Division, there is an enormous amount of additional evidence and greater understanding of the evidence concerning those transactions. 2. Stare Decisis and the Rule of Erie Under the rule of Erie, New York common law governs this case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Nat’l Ass’n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 454 (E.D.N.Y.2002). The court is bound to apply New York law of public nuisance as explicated by the New York Court of Appeals, the highest court in the State of New York and therefore the authoritative interpreter of New York law. It is required to apply that law “as interpreted by New York’s intermediate appellate courts” unless it finds “persuasive evidence that the New York Court of Appeals, which has not ruled on this issue, would reach a different conclusion.” Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir.1999); see also Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 84 (2d Cir.1991); Grand Light & Supply Co. v. Honeywell, Inc., 771 F.2d 672, 678 (2d Cir.1985); Entron Inc. v. Affiliated FM Ins. Co., 749 F.2d 127, 132 (2d Cir.1984) (“We believe, however, that the court’s reasoning in Miller is incorrect and that the New Jersey Supreme Court would reach a different conclusion.”). A “federal court is bound to apply the law of the state as found by an intermediate appellate court in the absence of ‘more convincing evidence of what the state law is.’ ” Strubbe v. Sonnenschein, 299 F.2d 185, 188 (2d Cir.1962) (quoting Fidelity Union Trust Co. v. Field, 311 U.S. 169, 178, 61 S.Ct. 176, 85 L.Ed. 109 (1940)). A determination of state law cannot be made mechanically; “a federal court is bound to consider all relevant factors.” Strubbe, 299 at 188-89 (2d Cir. 1962) (citing Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205, 76 S.Ct. 273, 100 L.Ed. 199 (1956)); see also West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940) (“It is the duty of the [federal courts] in every case to ascertain from all the available data what the state law is and apply it....”). This court is obligated to apply New York public nuisance law as announced and interpreted in the Appellate Division, First Department’s decision in People of the State of New York v. Sturm, Ruger & Co., — A.D.2d -, 761 N.Y.S.2d 192 (2003) and in the many other public nuisance claims that have faced the New York courts. That law will be determined in the context of all pertinent considerations. To the extent that there are inconsistencies in this body of law, the weight of the precedent will govern. Also controlling are the decisions of the New York Court of Appeals and those of the Court of Appeals for the Second Circuit in the Hamilton litigation. See Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001); Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36 (2d Cir.2000); Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir.2001). 3. Res Judicata [16] Plaintiffs claim is not barred as a matter of res judicata by the decision of the New York Supreme Court in People of the State of New York v. Sturm, Ruger & Co., No. 4502586/00 (N.Y.Sup.Ct. Aug. 10, 2001) or the affirmation of that decision by the Appellate Decision, First Department, in People of the State of New York v. Sturm, Ruger & Co., — A.D.2D -, 761 N.Y.S.2d 192 (2003). As a preliminary matter, the Attorney General for the State of New York and the Corporation Counsel for the City of New York take the narrow procedural position that defendants, because they did not raise the issue of res judicata in their answers to plaintiffs Fifth Amended Complaint, are now barred from asserting it. Res judicata is an affirmative defense that a defendant, if intending to rely on, generally should raise in its responsive pleadings. See Fed.R.Civ.P. 8(c) (2003). The court may, however, freely grant leave to amend pleadings “when justice so requires.” Fed.R.Civ.P. 15(a) (2003). The grant or denial of leave to amend lies within the discretion of the trial court, but is “limited when there is ‘undue delay, bad faith or dilatory motive’ on the part of the moving party, and ‘undue prejudice to the opposing party.’ ” Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46-47 (2d Cir.1983) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Plaintiff has suffered no prejudice, and there is no evidence of bad faith or dilatory motive on the part of defendants. The effects of Sturm, Ruger on the instant matter have been actively litigated. See Nat’l Ass’n for the Advancement of Colored People v. A.A. Arms, 2003 WL 1049011, at *4 (E.D.N.Y.2003) (denying defendants’ motion for an interim order of stay and stating, “[T]hese proceedings ... are not parallel to or duplicative of the state court proceedings in Sturm, Ruger & Co. A decision affirming or reversing the New York Supreme Court’s decision on the motion to dismiss in Sturm, Ruger & Co. would likely have little, if any, impact on the instant case.”); see also Mandate, In re Various Gun Manufacturers and Distributors No. 03-3025 (2d Cir. March 27, 2003). It should also be noted that, because of plaintiffs filing of amended complaints and the motion, discovery, and trial schedule set by the court, answers to the most current complaint (the Fifth Amended Complaint) were not prepared and filed until the beginning of October of 2002, at which point the instant consolidated cases had been on-going for over three years and a trial date in this complex litigation was scheduled for little more than a month away. The answers therefore played only a minor, if any, role in notifying plaintiff of the issues defendants would litigate. In fact, it was not plaintiff who asserted that defendants had waived the defense of res judicata, but observers the State of New York and the City of New York by a joint submission made after the parties’ final submissions had been received. In a case of this importance to society, to bar defendants from raising res judica-ta on procedural grounds represents too constrained a notion of procedural propriety. It would ignore a fundamental relationship between state and federal courts addressing essentially the same issue. Defendants’ answers are deemed amended to assert the affirmative defense of res judicata. On the merits of the defense, however, defendants’ argument is rejected. Federal courts must give preclusive effect to a state court decision where preclusive effect would be given by the courts of that state. See Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); 28 U.S.C. § 1738 (2003). The doctrine of res judicata in New York means that once a final decision on the merits is issued on a claim, all other claims among the parties or their privies arising out of the same transaction or series of transactions are barred. See O’Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d