When family members and survivors of the shooting at Sandy Hook Elementary School filed suit against Bushmaster in December 2014, it seemed a lot like a lost cause. After all, a 2005 federal law called the Protection of Lawful Commerce in Arms Act (PLCAA) was designed to prevent people from holding gun manufacturers accountable for wrongful deaths. Even last week, when a Connecticut judge shot down a motion to dismiss the suit, experts said she was just delaying an inevitable dismissal later down the line.
But then last Tuesday, that same judge, Barbara Bellis, of Connecticut's Superior Court, issued another ruling that determined the suit would be more than symbolic. Specifically, she said the discovery process could begin immediately and set a tentative trial date for April 3, 2018. A jury hearing the case would be historic, but Katherine Mesner-Hage, an attorney for the plaintiffs, says that getting the gun company to open its books for discovery is arguably just as huge.
That's because she and her co-council have constructed a creative PLCAA exemption, claiming, in essence, that the gun Adam Lanza used in the Sandy Hook massacre was specifically marketed as a killing machine. As part of discovery, they'll dig through the gunmaker's internal company memos and try to prove that the company was negligent.
I spoke to Mesner-Hage about how the gun industry became so protected from civil suits, what she and the other lawyers for the Sandy Hook survivors hope to find in discovery, and how their legal strategy is similar to the one used against Big Tobacco in the 90s.
VICE: What are you hoping to find in discovery that will be such a big deal?
Katherine Mesner-Hage: We're looking for documents, and we're looking to depose key people at Remington especially, but also at the distributor and the retail level. We're asking for internal memos about how to market the AR-15 and how to market specifically the patrolman's carbine, which is the one that Adam Lanza used.
We want to depose the head of marketing. We want to talk to the people at the company who are making the decisions about marketing. That's how we build our case, although the marketing speaks for itself on one level. This is our chance to kind of peel back the curtain and see what's really going on. One of the things about discovery in general is that you don't know what you're looking for before you start.
Has any other case against a gun company gotten to the discovery stage since PLCAA was passed? What are the broader implications of this recent decision?
I can't think of any case that's gotten to the point in which discovery was open in the post-PLCAA era. For the most part, the answer is no. You get thrown out on a motion to dismiss. A handful of cases, or less, have gone all the way. I'm not sure if you know about the case in Wisconsin that got a verdict in 2015.
The one where two officers were shot?
Yes, exactly, the Badger case in which someone got a weapon through a straw sale. That's when you buy a gun for someone who can't have one. And if the store has reason to know they're participating in a straw sale, that can give rise to a cause of action that is not barred by PLCAA. So, random trivia, but the lawyer representing the gun store in that case is representing Remington in our case.
Wow. Let's talk about your strategy: Is yours the first case to consider the marketing materials of the gun companies a cause for action?
Yes. That definitely doesn't have any post-PLCAA predecessor. And certainly nothing has gotten to open discovery. So I think it's safe to say some extremely passionate, articulate Democratic representatives and senators speaking out against the bill and describing exactly how unprecedented it was and how it would shut the courthouse doors to so many deserving plaintiffs. But they were outnumbered.
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