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Gunmaker Could Face Searching Discovery in Sandy Hook Case (1)

Nov. 14, 2019, 9:51 AMUpdated: Nov. 14, 2019, 2:53 PM

Remington Arms Co. is headed back to a trial court in Connecticut to defend claims related to the 2012 Sandy Hook massacre, and documents and witness depositions will play a major role in how the case and future litigation against gun manufacturers play out.

The U.S. Supreme Court declined to hear the company’s challenge to a Connecticut Supreme Court ruling allowing the plaintiffs—families affected by the mass shooting—to move forward with claims that Remington marketed a semiautomatic rifle to civilians as a militaristic, offensive weapon.

The company is likely to try figuring out what information the plaintiffs may uncover during pretrial discovery and come up with a strategy for keeping that information out of the plaintiffs,’ and the public’s, hands. The outcome of discovery will dictate Remington’s willingness to consider settling and, ultimately, whether plaintiffs in other gun-violence cases will want to spend the money to litigate such legally difficult cases, lawyers and legal scholars say.

“Where this goes depends on what is revealed and produced,” said Adam Skaggs, an attorney at the Giffords Law Center to Prevent Gun Violence in San Francisco. The discovery phase “could prove quite significant,” he said.

He and others said Remington’s inclination to settle the Sandy Hook case depends on what’s contained in the documents and deposition testimony. In cases involving tobacco, opioids, and even potentially Juul Labs Inc. e-cigarettes, “it’s those certain documents—that’s what makes a difference,” plaintiffs’ attorney Tom D’Amore, of Portland, Ore., said.

The tobacco industry “stood strong” and won cases for two or three decades, he said. Then “terrible documents” came out, and “they weren’t able to deep-six all of them,” he said.

‘Multiple, Multiple Experts’

Discovery here will include numerous depositions of Remington employees and “multiple, multiple experts,” including marketing experts and gun experts, said D’Amore, whose practice focuses on catastrophic-injury cases. He also participated in a gun-death case that settled.

In any consumer or deceptive trade practices case about advertising, “you explore how the ads were designed, who was the audience, what message did the company want to convey, and did the company conduct any market research or message-testing to understand whether the ads resonated with viewers,” Molly J. Bowen, a plaintiff-side attorney with Cohen Milstein Sellers & Toll PLLC in Washington, said in an email.

“Large companies are generally not guessing when it comes to advertising—they typically employ sophisticated analysis to make sure their ad budget is well-spent,” she said.

Professor Adam Winkler of the UCLA School of Law, whose scholarship focuses on the Second Amendment and gun policy, said the documents at play here would likely include Remington’s marketing plans, internal deliberations, and thought processes.

And, Skaggs predicted, “the defendants are going to fight every discovery request to the bitter end.”

Depending on what the documents contain, Remington and its affiliates might be inclined to settle, Winkler said.

On the other hand, they might be reluctant to do so, he said. “The plaintiffs have a tough case.”

“We are confident that Remington will prevail at trial,” Mark Oliva, a spokesman for the National Shooting Sports Foundation, said in an emailed statement. “Nothing in Remington’s advertising of these products connotes or encourages the illegal or negligent misuse of firearms, or that Mrs. Nancy Lanza, who lawfully purchased the firearm two years prior to the incident, or [Sandy Hook shooter] Adam Lanza himself, saw or were influenced in any way by any advertisement.”

“We continue to feel sympathy toward the Sandy Hook victims, as NSSF is headquartered in Newtown, but Adam Lanza alone is responsible for his heinous actions,” Oliva said.

Future Cases

The documents that come out in the discovery process and the eventual outcome of the case will be more significant drivers of other suits than the Supreme Court’s decision to stay out of the dispute, Winkler said. “The Newtown families scored a major victory” by avoiding the court’s review, but “they have a long way to go,” and the process is very expensive, he said.

If they’re successful, that will encourage others to sue gunmakers, but they could lose their cases and a lot of money along with them, he said.

Depending on how Sandy Hook goes, it “opens the door a crack to proceed in the civil justice system,” but it’s “a stretch to call it a tsunami,” he said. Arguments to the Supreme Court that the case represents an existential threat to the gun industry and the Second Amendment were overstated, he said.

States’ consumer protection laws vary in strength, he said. Some states have their own immunity laws, which are in some cases stricter than the federal one, he said.

Several attorneys who represent gunmakers didn’t respond to comment requests.

Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board. Everytown for Gun Safety advocates for universal background checks and other gun control measures.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloombergenvironment.com; Steven Patrick at spatrick@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com