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Ruling in Sandy Hook case could reveal gun manufacturer’s confidential marketing strategy for semi-automatic firearms

In this 2012 file photo, flowers, teddy bears, candles, balloons and a pair of angel wings left by mourners are seen at the Sandy Hook Elementary School sign. (Cloe Poisson/Hartford Courant/TNS via Getty Images) *FOR USE WITH THIS STORY ONLY*

From the day they stood together to announce their lawsuit in their Bridgeport, Conn., attorney’s office four years ago, a group of Sandy Hook parents have said the same thing — all they wanted was to learn about the marketing strategy behind the Remington semiautomatic rifle used to kill their children.

Facing what seemed liked impenetrable congressional protection for the gun industry, the odds grew longer when a state judge threw the case out. But last week’s stunning state Supreme Court ruling allowing the case to proceed has increased their chances of getting access to secret marketing documents that gun manufacturers like Remington have fought hard to protect.

“We’re not starting from a completely blank slate here. You don’t get to a marketing campaign like they have had targeting young men that wasn’t well thought out,” said Josh Koskoff, lawyer for the Sandy Hook families. “These families weren’t the target audience for Remington. The Sandy Hook shooter was their target. He was in the crosshairs of their marketing campaign, and he knew a lot about what that gun could do.”

The state Supreme Court, by a narrow margin, remanded the gun case back to Bridgeport Superior Court — a ruling that paves the way for the families to subpoena internal documents on how the gun companies have marketed the AR-15, which has become the weapon of choice for mass shooters. The gun manufacturers have closely guarded information on how they market the assault weapons.

“All we have ever wanted is to peel back the layers of this corporate entity Remington so we can find out what their goals were and objectives were in the marketing of this product,” William Sherlach said. His wife Mary Sherlach, the school psychologist, was one of 26 people gunned down in five minutes on Dec. 14, 2012, by Adam Lanza using a Bushmaster AR-15 made by Remington.

Remington and lawyers for the gunmaker have declined to comment since the 4-3 decision by the state Supreme Court.

The ruling has some politicians and experts comparing it to the tobacco cases from the 1980s, when it was revealed companies had medical data that showed cigarettes caused cancer and to the more recent lawsuits challenging Purdue Pharma’s marketing of OxyContin when company officials knew the drugs potential to become an addictive and potentially lethal drug.

“Everyone who sold tobacco products knew they were bad, but not everyone who sells guns is selling combat style weapons,” Georgia State University Professor Timothy Lytton said. “This is a lot more like the opioid crisis where the company was trying to sell a specific drug as fast as possible to a market that they knew was there.”

Lawyers for Remington have 10 days to file a motion for the state Supreme Court to reconsider its ruling. Remington would then have 90 days to decide whether to file a writ of certiorari with the U.S. Supreme Court asking it to overturn the decision, a process likely to delay the case further.

Remington officials haven’t issued a statement since the ruling was announced, so it is unclear what their intentions may be going forward.

Georgetown Law Professor Heidi Feldman said the ruling has put Remington in a legal bind.

“They don’t want the plaintiffs in this case to proceed with discovery, but on the other hand if they appeal to the U.S. Supreme Court and they accept the Connecticut court’s interpretation, then that could open them up to other significant lawsuits across the country. It’s a big gamble they could very well lose.”

If the ruling stands, it possibly has created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault weapons from legal ramifications following mass shootings.

The court ruled that the Sandy Hook families should have the opportunity to prove that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing what it knew was a weapon designed for military use to civilians such as the Sandy Hook shooter Adam Lanza and his mother, Nancy Lanza.

“We further conclude that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the (semi-automatic rifle) to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre,” Justice Richard Palmer wrote.

While the decision is based on the wording of Connecticut’s consumer protection laws, that doesn’t mean the same approach won’t be tried elsewhere, said UCLA law professor Adam Winkler.

“This is a landmark and potentially historic decision partly because it opens up Remington to discovery where for the very first time they will have to reveal documents they haven’t wanted to similar to what happened with the tobacco companies,” he said.

Winkler said the secrets the gun manufacturers may hold aren’t likely the same as the tobacco companies, who had decisive medical data that tobacco caused cancer and kept it secret for years until it was revealed in lawsuits all across the country.

“I’m skeptical at the end of the day because I don’t expect they’ll find that gun companies were having meetings thinking about finding people like Adam Lanza,” Winkler said.

Koskoff, lawyer for the families, said that finding out what Remington did or didn’t do is what discovery is all about and that his firm is ready to proceed as soon as possible. Lawyers for the families had done some preliminary discovery before the case was dismissed.

He acknowledged much of what they may get in discovery could still be sealed by the court.

“We will always do our best to make every document public, but there are protective orders that corporations, especially Remington, will try to use to keep their secrets in the dark,” Koskoff said. “But these families aren’t going anywhere, and they have the patience and the courage to see this through.”


© 2019 The Hartford Courant (Hartford, Conn.)

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