Judge Orders New Trial in KMart's Sale of Gun

Judge Orders New Trial in KMart's Sale of Gun

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SALT LAKE CITY (AP) -- A federal judge has ordered a new trial in the suit against KMart over the sale of a gun to a schizophrenic Park City man who used it to commit suicide.

U.S. District Judge Ted Stewart ruled Monday that one of the jurors who levied a $3 million judgment against Kmart in September 2001 had outside knowledge about the outcome of a similar lawsuit in Florida.

Stewart said the man did not tell other jurors exactly what he had learned, but suggested he knew something that reflected poorly on Kmart's actions in other cases.

"The fact that one juror had this extremely prejudicial extraneous information during deliberations and failed to disclose it to the court is alone sufficient to require a new trial based on juror misconduct," Stewart wrote.

Following a nearly two-week trial, the jury ordered Kmart to pay Ryan Tait Eslinger's parents $1.5 million in general and $1.5 million in punitive damages.

The jurors found that Kmart was 100 percent responsible for the 19-year-old man's death, agreeing with Philip and Sandra Eslinger's claims that Kmart wrongfully sold their son the shotgun in May 1996. Ryan Eslinger killed himself with the weapon the following day.

At a January 2002 hearing on the misconduct issue, the juror testified that it was not until he returned home the final night of the trial that he learned about the Florida case, in which Kmart was found liable for selling a drunken man a gun that he used to shoot and paralyze his girlfriend.

Nicholas Oliver said he logged onto the Internet to catch up on post-Sept. 11 news, as well as media coverage of the Utah case and other Kmart cases. Oliver said he conducted the research "mainly to find out what the news was saying about what we had decided."

Stewart said he didn't find Oliver's testimony to be credible, especially in light of testimony from two other jurors that Oliver talked at least twice during the trial about having outside knowledge related to Kmart.

Philip Eslinger was out of town and unavailable for comment on the judge's ruling. Sandra Eslinger died last summer.

Kmart attorney Rodney Parker was unavailable for comment Tuesday. The company maintained that the sale was lawful and store employees had no way of knowing about Eslinger's condition.

The plaintiffs contended that the clerk who sold the shotgun-- a high school acquaintance of Eslinger's -- completed the transaction without seeking proper identification. They also contended the medication Eslinger was taking would have made him appear drunk.

(Copyright 2003 by The Associated Press. All Rights Reserved.)

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