UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

BRIAN BONNER, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No.: 3:06-cv-00715-MHT 

 ) 

NORINCO a/k/a ) 

CHINA NORTH INDUSTRIES CORP. ) 

et al., ) 

 ) 

 Defendants. ) 

DEFENDANT CHINA NORTH INDUSTRIES CORPORATION’S

ANSWER TO PLAINTIFF’S COMPLAINT

 Defendant China North Industries Corp. (“Norinco”) hereby responds to 

plaintiff’s Complaint, including all amendments thereto, as follows: 

 Answering the numbered paragraphs in plaintiff’s Complaint, Norinco responds 

as follows: 

PARTIES

1. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the allegations contained in paragraph 1 of the Complaint and, 

therefore, denies the same. 

2. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the allegations contained in paragraph 2 of the Complaint and, 

therefore, denies the same. 

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3. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the allegations contained in paragraph 3 of the Complaint and, 

therefore, denies the same. 

4. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the allegations contained in paragraph 4 of the Complaint and, 

therefore, denies the same. 

5. Norinco admits that it is a state-owned, limited liability company as 

defined by the laws of the People’s Republic of China and that it is an instrumentality of 

a foreign state as defined by 28 U.S.C. § 1603(b). Norinco denies the remaining 

allegations contained in paragraph 5 of the Complaint. 

FACTS

6. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the allegations contained in paragraph 6 of the Complaint and, 

therefore, denies the same. 

7. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the allegations contained in paragraph 7 of the Complaint and, 

therefore, denies the same. 

COUNT I

8. Norinco admits that it previously exported certain kinds of shotguns to the 

United States. Norinco is without knowledge or information sufficient to form a belief as 

to the truth or falsity of the remaining allegations contained in paragraph 8 of the 

Complaint and, therefore, denies the same. 

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9. Norinco denies the allegations against it contained in paragraph 9 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 9 of 

the Complaint and, therefore, denies the same. 

10. Norinco denies the allegations against it contained in paragraph 10 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 10 

of the Complaint and, therefore, denies the same. 

COUNT II

11. Norinco incorporates by reference, as though fully set forth herein, its 

responses to paragraphs 1 – 10 of the Complaint. 

12. Norinco denies the allegations against it contained in paragraph 12 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 12 

of the Complaint and, therefore, denies the same. 

13. Norinco denies the allegations against it contained in paragraph 13 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 13 

of the Complaint and, therefore, denies the same. 

COUNT III

14. Norinco incorporates by reference, as though fully set forth herein, its 

responses to paragraphs 1 – 13 of the Complaint. 

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15. Norinco denies the allegations against it contained in paragraph 15 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 15 

of the Complaint and, therefore, denies the same. 

16. Norinco denies the allegations against it contained in paragraph 16 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 16 

of the Complaint and, therefore, denies the same. 

COUNT IV

17. Norinco incorporates by reference, as though fully set forth herein, its 

responses to paragraphs 1 – 16 of the Complaint. 

18. Norinco denies the allegations against it contained in paragraph 18 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 18 

of the Complaint and, therefore, denies the same. 

19. Norinco denies the allegations against it contained in paragraph 19 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 19 

of the Complaint and, therefore, denies the same. 

20. Norinco denies the allegations against it contained in paragraph 20 of the 

Complaint. Norinco is without knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations against other defendants contained in paragraph 20 

of the Complaint and, therefore, denies the same. 

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Norinco denies that plaintiff is entitled to any of the relief requested in the 

paragraph following paragraph 20 of the Complaint. 

PREAMBLE TO ADDITIONAL DEFENSES

 Norinco, pleading in the affirmative and without prejudice to its other pleadings, 

states the following additional defenses. By asserting these additional defenses, Norinco 

does not assume any burden of proof not otherwise legally assigned to it. 

Norinco reserves the right to rely upon any of the following defenses or any 

additional defenses to the claims asserted by plaintiff, to the extent that such defenses are 

supported by information developed through discovery or by evidence at trial. 

First Defense

 Norinco denies any paragraph or any portion of any paragraph in plaintiff’s 

Complaint not previously referred to herein. 

Second Defense

 Plaintiff’s claims are due to be dismissed, or in lieu thereof the return of service of 

the Summons and Complaint quashed, on the following grounds: (a) lack of jurisdiction 

over the person; (b) lack of jurisdiction over the subject matter; (c) improper venue; (d) 

insufficiency of process; (e) insufficiency of service of process; and (f) failure to state a 

claim upon which relief may be granted. 

Third Defense

 Plaintiff’s claims are barred in whole or in part by the applicable statute of 

limitations. 

Fourth Defense

 Plaintiff’s claims are barred by laches, waiver, and/or estoppel. 

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Fifth Defense

 The alleged injuries to plaintiff were caused, in whole or in part, by plaintiff’s 

own contributory negligence. 

Sixth Defense

 Plaintiff assumed the risk of injury. 

Seventh Defense

 The dangers and/or defects of which Plaintiff complains were open and obvious 

and should have been observed by Plaintiff in the exercise of reasonable care. 

Eighth Defense

 Plaintiff failed to heed the warnings provided by Norinco. 

Ninth Defense

 At the time of plaintiff’s alleged injuries, the subject product was changed, 

altered, modified, or otherwise in a condition different from the condition of such product 

at the time it entered the stream of commerce. 

Tenth Defense

 The alleged injuries to plaintiff were proximately caused by the misuse, abuse, 

alteration, and/or failure to properly utilize, maintain, or care for the subject product by 

persons other than Norinco. 

Eleventh Defense

 The alleged injuries to plaintiff were caused in whole or in part by acts or 

omissions of another or others over whom Norinco neither exercised nor had any right of 

control, for which Norinco is and was not responsible, and whose conduct Norinco had 

no duty or reason to anticipate or control. 

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Twelfth Defense

 There is no causal relation in fact between the alleged injuries sustained by 

plaintiff and any conduct of Norinco in connection with the design, manufacture, 

marketing, or maintenance of any product. 

Thirteenth Defense

 Plaintiff’s alleged injuries were caused by intervening and superseding causes 

which had no relation in fact to any conduct of Norinco in connection with the design, 

manufacture, marketing, or maintenance of any product. 

Fourteenth Defense

 Plaintiff is barred from recovering any damages because there was no practical or 

technically feasible alternative design that would have prevented the harm alleged by 

plaintiff without substantially impairing the usefulness or intended purpose of the subject 

product. 

Fifteenth Defense

 Plaintiff’s breach of warranty claims are barred because plaintiff failed to give 

timely notice of any alleged breach of warranty to Norinco; plaintiff did not reasonably 

rely upon any alleged warranty; plaintiff failed to satisfy all conditions precedent or 

subsequent to the enforcement of such warranty; the warranty was appropriately 

disclaimed, excluded, or modified; and, moreover, the doctrine of caveat emptor would 

apply because the subject product was used when purchased by plaintiff. 

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Sixteenth Defense

 Plaintiff’s claim for punitive damages violates, and it is therefore barred by, the 

Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United 

States of America on grounds including, but not limited to, the following: 

 a. It is a violation of the Due Process and Equal Protection Clauses of 

the Fourteenth Amendment of the United States Constitution to impose punitive 

damages, which are penal in nature, against a civil defendant upon the plaintiff satisfying 

a burden of proof which is less than the “beyond a reasonable doubt” burden of proof 

required in criminal cases; 

 b. The procedures pursuant to which punitive damages are awarded 

may result in the award of joint and several judgments against multiple defendants for 

different alleged acts of wrongdoing, which infringes upon the Due Process and Equal 

Protection Clauses of the Fourteenth Amendment of the United States Constitution; 

 c. The procedures pursuant to which punitive damages are awarded 

fail to provide a reasonable limit on the amount of the award against defendant, which 

thereby violates the Due Process Clause of the Fourteenth Amendment of the United 

States Constitution; 

 d. The procedures pursuant to which punitive damages are awarded 

fail to provide specific standards for the amount of the award against defendant, which 

thereby violates the Due Process Clause of the Fourteenth Amendment of the United 

States Constitution; 

 e. The procedures pursuant to which punitive damages are awarded 

result in the imposition of different penalties for the same or similar acts, and thus violate 

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the Equal Protection Clause of the Fourteenth Amendment of the United States 

Constitution; 

 f. The procedures pursuant to which punitive damages are awarded 

permit the imposition of punitive damages in excess of the maximum criminal fines for 

the same or similar conduct, which thereby infringes upon the Due Process Clause of the 

Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth 

Amendment of the United States Constitution; 

 g. The procedures pursuant to which punitive damages are awarded 

permit the imposition of excessive fines in violation of the Eighth Amendment of the 

United States Constitution; 

 h. An award of punitive damages to plaintiff in this action would 

constitute a deprivation of property without due process of law; and 

 i. The procedures pursuant to which punitive damages are awarded 

permit the imposition of an excessive fine and penalty. 

Seventeenth Defense

 With respect to plaintiff’s demand for punitive or exemplary damages, Norinco 

specifically incorporates by reference all standards of limitations regarding the 

determination and enforceability of punitive damages awards, including but not limited 

to, those standards of limitation which arose in BMW of North America v. Gore, 517 

U.S. 559 (1996), Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 

(2001), and State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). 

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Eighteenth Defense

 Punitive damages awards in Alabama are not governed by any specific or 

adequate standards, are not based upon rational distinctions, do not serve any legitimate 

state interest, are necessarily vague and arbitrary, and therefore are in violation of the 

Due Process and Equal Protection provisions of the Fifth, Eighth, and Fourteenth 

Amendments to the United States Constitution, as well as those of Article I, Sections 1, 6, 

and 22 of the Alabama Constitution. Therefore, plaintiff cannot recover punitive 

damages. 

Nineteenth Defense

 Plaintiff’s claims for punitive damages are barred by sections 6-11-20 and 6-11-

27 of the Alabama Code. 

Twentieth Defense

 Norinco affirmatively pleads and avers the protections afforded it by section 6-11-

21 of the Alabama Code. 

Twenty-First Defense

 Any verdict or judgment rendered against Norinco must be reduced by those 

amounts that have been or will be, with reasonable certainty, paid to replace or indemnify 

plaintiff, in whole or in part, for any past or future claimed economic loss, from any 

collateral source such as insurance, social security, worker’s compensation or employee 

benefits programs. 

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Twenty-Second Defense

 All or some of plaintiff’s medical expenses have been paid by plaintiff’s medical 

insurance carrier, or some other form of insurance, and plaintiff is not entitled to recover 

said medical expenses pursuant to section 6-5-522 of the Alabama Code. 

Twenty-Third Defense

 Plaintiff’s claims against Norinco are barred to the extent the Protection of Lawful 

Commerce in Arms Act, 15 U.S.C. §§ 7901-03, applies to this action. 

WHEREFORE, Norinco requests that plaintiff’s Complaint, and all claims 

alleged therein, be dismissed with prejudice, that Norinco be awarded its costs, 

disbursements, and attorney’s fees incurred in the defense of this action, and that Norinco 

be granted any other relief to which it may be entitled. 

Non-Jury Trial

 Pursuant to 28 U.S.C. § 1441(d), this action “shall be tried by the court without 

jury.” 

s/ James C. Barton, Jr. 

James C. Barton, Jr. (BAR014) 

Bar Number: ASB-0237-B51J 

Email: jbartonjr@johnstonbarton.com 

s/ Alan D. Mathis 

Alan D. Mathis (MAT052) 

Bar Number: ASB-8922-A59M 

Email: adm@johnstonbarton.com 

Attorneys for defendant 

China North Industries Corp. 

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JOHNSTON BARTON PROCTOR & ROSE LLP 

Colonial Brookwood Center 

569 Brookwood Village, Suite 901 

Birmingham, Alabama 35209 

(205) 458-9400 

(205) 458-9500 (FAX) 

OF COUNSEL 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served by first 

class mail, postage prepaid, on this 6th day of December 2007 upon the following: 

 

David J. Hodge, Esq. 

PITTMAN, DUTTON, KIRBY & HELLUMS, P.C. 

2001 Park Place North 

1100 Park Place Tower 

Birmingham, Alabama 35203 

Nick Wooten, Esq. 

WOOTEN & CARLTON, P.C. 

P.O. Drawer 290 

Lafayette, Alabama 36862 

Todd M. Higey, Esq. 

 ADAMS and REESE LLP 

 2100 3rd Avenue North, Suite 1100 

 Birmingham, Alabama 35203 

 

 

 s/ Alan D. Mathis 

 Of Counsel 

W0623930.DOC

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