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Connecticut Supreme Court says Sandy Hook families can sue gun manufacturer Remington

Tribune News Service logo Tribune News Service 3/15/2019 By Dave Altimari, The Hartford Courant
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HARTFORD, Conn. - The Connecticut Supreme Court Thursday narrowly reversed a ruling by a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed.

In a 4-3 decision the court remanded the landmark gun case back to Bridgeport Superior Court and possibly 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 rifle from lawsuits.

The ruling 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.

"There is a reason why this particular consumer product is the one that is used by people who want to inflict the most damage and we have seen it time and time again since my son and his classmates were killed," said David Wheeler, whose son Ben was killed in the Sandy Hook attack. "That reason very likely potentially resides in the documents that we have been unable to look at until now."

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Family members spoke during an afternoon news conference at their lawyer's office in Bridgeport.

"This is another step in trying to figure out what went on inside Remington. Let's see the internal documents and emails of what they told their salesmen," said William Sherlach, whose wife Mary was a school psychologist at Sandy Hook Elementary School before she died in the attack. "They thought they were sheltered from everything but not here in Connecticut."

Josh Koskoff, lawyer for the families, said the court rejected the gun industry's "bid for complete immunity, not only from the consequences of their reckless conduct but also from the truth-seeking discovery process." All along, he said Remington's goal has been to expand the AR-15 market by courting "high-risk users."

"What this decision says is no one is above the law, even a gun company that is powerful or a gun industry that is politically connected and even in face of statutory protection the gun industry isn't above the law," Koskoff said Thursday afternoon. "This is a day of reckoning in board rooms of gun companies across the country."

In the 4-3 decision, justices Richard N. Palmer, Andrew J. McDonald, Raheem L. Mullins and Maria Araujo Kahn sided with the majority. Justices Richard A. Robinson, Christine S. Vertefeuille and Nina F. Elgo dissented. Elgo is an appellate court judge who participated in the case.

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

Adam Lanza used the AR-15 to kill 26 people, including 20 first-graders, at Sandy Hook Elementary School in 2012.

"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 XM15- E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre," Palmer wrote in the majority decision. "Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations,'

A Superior Court judge in Bridgeport dismissed the lawsuit in 2016, agreeing with attorneys for Remington that the lawsuit "falls squarely within the broad immunity" provided to gun manufacturers and dealers by the arms act. The lawsuit, originally filed in 2015 by nine families of victims, as well as a teacher who was injured in the shooting, also named Camfour Holding LLP, the gun's distributor, and Riverview Gun Sales Inc., the East Windsor gun shop where Nancy Lanza purchased the AR-15 right around her son's 18th birthday.

The justices ruled while Judge Barbara Bellis was correct in dismissing the lawsuit based on PLCAA, she was incorrect not to let the case proceed on the CUTPA allegations.

"Following a scrupulous review of the text and legislative history of (the Protection of Lawful Commerce in Arms Act) we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public's health, safety, and morals has long been considered a core exercise of the states' police powers." Palmer wrote.

a close up of a sign: 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* © Hartford Courant/TNS/Getty Images North America/TNS 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* Adam Lanza was 20 years old on Dec. 14, 2012, when he killed his mother in their Newtown home, shot his way into the elementary school he had attended and went on a killing spree inside two classrooms with a Bushmaster AR-15, before killing himself with a handgun.

U.S. Sen. Richard Blumenthal called the decision "a 'wow' moment in American legal history."

"It breaks open the seemingly impenetrable shield - unjust and unfair - enjoyed uniquely by the arms manufacturers. It holds them responsible, as every other industry is, for injury and death that they cause."

Blumenthal predicted the Sandy Hook case could have a similar outcome to the 46-state lawsuit he helped lead as Connecticut attorney general against the tobacco industry. Damaging revelations about cigarette companies learned during the discovery phase of the case helped drive a $246 billion settlement.

"Once we were in court and could pursue discovery, so many secrets were revealed that were so embarrassing and critical to the industry it was compelled to settle the case," he said. "There are a lot of secrets in this industry's file that now potentially could come to the fore."

Remington officials have not commented on the ruling. But legal experts said it would be surprising if the company didn't appeal the ruling to the U.S. Supreme Court.

"The Sandy Hook families have blown a very big hole in the federal immunity law that protects gun manufacturers because every state in the country has their own consumer protection laws," Georgia State Law Professor Timothy Lytton said. Lytton has written a book on the difficulty of suing gun companies.

"The U.S. Supreme Court is going to have to decide what the phrase 'applicable to the sale of an item' means in the federal statutes," Lytton said. "The Connecticut Supreme Court has crafted a fairly narrow and strategic way for this to go forward by determining that a general state consumer law counts as applicable under PLCAA and the high court must decide whether to close that loophole or let it remain open."

Legal experts said the case will come down to how the state Supreme Court will interpret two possible exceptions allowed under the arms act - whether Remington can be held liable for so-called "negligent entrustment" or whether it violated the Connecticut Unfair Trade Practices Act. Negligent entrustment is defined as "supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others."

When the lawsuit reached the Connecticut Supreme Court, gun control advocates, school officials and emergency doctors who treated victims of assault rifle fire submitted amicus briefs in favor of the lawsuit. Gun rights organizations also weighed in, including the National Rifle Association, which argued that the case stood to "eviscerate" the gun companies' legal protections.

Koskoff appealed the lower court's dismissal and sought to have the high court return the case to Superior Court in Bridgeport so "the discovery phase of this case can begin and we can start uncovering documents on how this military weapon ended up in civilian hands."

There were five justices seated for the Supreme Court hearing, which took place in November 2017. Kahn and Robinson, both newly appointed, weren't present for the hearing but were involved in the court's decision. State Supreme Court hearings normally last an hour but justices had so many questions for Koskoff that Palmer extended the hearing to allow equal time for Remington's attorney James B. Vogts and for a rebuttal by Koskoff.

Vogts and attorney Christopher Renzulli, who represents Camfour, stuck to the argument that they have used since the lawsuit was filed - PLCAA protects them from this type of lawsuit. Vogts argued the law is clear - the manufacturer of the gun used at Sandy Hook is not liable for the damage "the criminal" caused.

"There is no need for a legal re-examination of the law," Vogts said. "Under the law, the manufacturer of the gun used by the criminal that day isn't responsible legally for his actions."

Visit The Hartford Courant (Hartford, Conn.) at www.courant.com

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