Sandy Hook families targeting guns take page from tobacco litigation

Now, families of the victims from the massacre at Sandy Hook Elementary School hope to replicate the tactic: using litigation as a means to pry open the gun industry, employing the discovery process to unearth internal communications and examine the practices behind marketing and selling powerful firearms like the one used in the attack.

“We can find out what the Remington defendants have tried every step of the way to block in discovery,” said David Wheeler, whose 6-year-old son, Ben, died at Sandy Hook, about the gunmaker that was among the companies named in the lawsuit.

Joshua D. Koskoff, a lawyer for the families, described the discovery stage as “really the most important thing we’ve been waiting to do.”

The ruling last month — allowing the families to maneuver around the vast federal protections shielding the gun industry from some lawsuits — arrived more than six years after the gunman stormed into the elementary school in Newtown, Connecticut, killing 26 people, including 20 first-graders.

Gun companies are protected from most legal action when their weapons are used to commit a crime, as stipulated by Congress in 2005. The families tested a novel strategy to pierce those protections by focusing on the marketing for the AR-15-style Bushmaster used by the gunman in the attack.

In the lawsuit, the families assert that the weapon used in the massacre was marketed in a way — with militaristic and hypermasculine slogans — that specifically reached out to troubled young men like the one who carried out the attack.

The families’ aim, according to past legal filings, is to compel the companies to turn over troves of documents in hope that the records will bolster the case, like those discussing strategies for branding and promoting the weapon, including product placements in video games and marketing it as a good gift for family members.

Financial documents filed by Remington with the Securities and Exchange Commission show that increasing sales of the Bushmaster AR-style rifles was one of the company’s highest priorities in 2009. That year, a Remington executive’s bonus was tied to implementing a plan for the company to hit specific sales targets for the Bushmaster weapon like the one legally purchased by the gunman’s mother. The executive exceeded the company’s target for 2009.

The recent court decision offered a moment of triumph for the Newtown families, who still face new struggles and daily reminders of their loss. Newtown was shaken again by the recent suicide of Jeremy Richman, whose 6-year-old daughter, Avielle, was among the Sandy Hook victims.

It remains unknown exactly what records will be excavated in the Sandy Hook case, but hundreds of miles away in Florida, Fred Guttenberg took notice.

He is pursuing his own legal action, in his case against the parent company of Smith & Wesson, which made the weapon used in the attack at the Parkland, Florida, high school where his 14-year-old daughter, Jaime, was killed.

The development in Connecticut has emboldened him in his own effort.

“They’re concerned and they should be concerned,” Guttenberg, whose daughter was one of 17 people killed at Marjory Stoneman Douglas High School, said of the gun industry.

By bringing a lawsuit against the companies that manufactured and sold the weapon used by the gunman, legal experts said, the families were pursuing a familiar strategy that had led to the revelation in other industries — the tobacco business, car manufacturers and pharmaceutical companies — of dishonest practices and a disregard for the well-being of customers and the public.

“There are just so many product liability cases that have unfolded in similar ways,” said Carl Tobias, a law professor at the University of Richmond. “They dug and dug and dug and found out what actually happened,” he added. “Discovery is the tool.”

Remington and the other companies named in the lawsuit, along with others in the gun industry, have mounted a vigorous defense.

They counter that federal law shields the companies from these kinds of claims when their weapons are used in a crime. Remington has asked the state court to delay any ruling in anticipation of an expected appeal to the U.S. Supreme Court.

Lawyers for the gun companies did not respond to requests for comment.

The discovery process is a portion of the case where lawyers amass evidence, drawing from depositions with the sworn testimony of executives, experts and others, written questionnaires submitted to the other side and documents that the opposing side is compelled to turn over.

The volume of lawsuits against tobacco companies prompted the release of documents — from the discovery process during suits as well as disclosures from corporate whistleblowers — that showed the companies had known far more than they had publicly acknowledged about the harmful effects of their products and the addictive nature of nicotine. The information led to a shift in society’s impressions of tobacco.

Now, large volumes of documents about cigarette companies are available online; one archive maintained by the University of California San Francisco has 90,111,026 pages, much of it coming from lawsuits.

“It stripped away all credibility of anything the industry might say,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids and a leading figure in the litigation against tobacco companies.

But just as other plaintiffs have drawn lessons from tobacco litigation, so have other industries. Myers said it was very likely that the gun companies had studied the tobacco companies’ shortcomings.

“What became clear from the tobacco industry documents: There was a brazenness in believing they could keep these documents from the public eye,” Myers said. “They wrote down things that careful people would not write down.”

The Sandy Hook gun lawsuit has attracted intense interest because, unlike other legal battles over weapons, it has not been clobbered by the protections enshrined in federal law.

In a 4-3 ruling, the Connecticut Supreme Court agreed with a lower court judge’s decision to dismiss most of the families’ claims, yet also found that federal law did not prevent the families from bringing a lawsuit based on wrongful marketing claims under Connecticut state law.

The National Shooting Sports Foundation, a trade association representing the firearm industry, said the ruling was “at odds with all other state and federal appellate courts that have interpreted the scope” of the federal protections.

Scott Wilson, president of the Connecticut Citizens Defense League, a Second Amendment rights organization, criticized the ruling. “I think it’s a miscarriage of justice,” he said. He also disputed the depiction of the semi-automatic rifle as a combat weapon too dangerous or complicated for civilians.

But advocates of gun control and others welcomed the ruling as an indication that the federal protections were not impenetrable.

“Any industry needs robust oversight,” said Alla Lefkowitz, deputy director of affirmative litigation at Everytown for Gun Safety, an organization that advocates stricter gun measures. “I’m not aware of any other industry that has this kind of protection and I think it’s particularly inappropriate for any kind of industry to have this kind of protection.”

The victory is not clear cut. The case has languished for years in court; legal experts believe it is still years from being resolved, and could likely return to the state Supreme Court and even advance to the U.S. Supreme Court.

Still, Guttenberg was forward-looking. “We’re not going to continue being victims,” he said. “We’re going to fight. We’re going to get this somehow or another fixed.”

This article originally appeared in The New York Times.