Why Taser is paying millions in secret 'suspect injury or death' settlements - when does 'less lethal' actually mean deadly?

December 13, 2013 - Matt Stroud, The Verge

On the day before Thanksgiving this year, international stun gun and cop-cam company Taser International, Inc. announced it had given up its fight in two major legal battles over "suspect injury or death." In a 275-word statement submitted to the US Securities and Exchange Commission, the company's chief financial officer said it would pay a total of $2.3 million in settlements to plaintiffs who had sued the company in product liability cases.

This was rare. Taser prides itself in fighting to the bitter end in any case alleging that its products do anything but save lives. Yet there it was in a financial disclosure — Taser backing down.

Taser brushed it off as a remnant of simpler times. According to the vaguely worded statement, enhanced "risk management procedures" and "revisions to product warnings" in 2009 corrected a legal vulnerability. The $2.3 million payouts would address the last lawsuits tied to that vulnerability; they would amount to housekeeping — cleaning up lingering messes that had remained on the company’s books since before 2009.

WHAT WERE THESE "RISK MANAGEMENT PROCEDURES"?

But what were these "risk management procedures"? What were these "revisions to product warnings"? What was the vulnerability? And what were these cases? Taser’s press liaison told The Verge that its SEC declaration "speaks for itself" — a clear indication that the company has no plans to say anything further about settlements unless it’s forced to.

But a little research helped to pin down procedural changes Taser made in September, 2009. And a public records search helped to narrow the possibilities down to four representative cases that may have been settled. Those cases have a few major factors in common: they involve a Taser shot at someone’s chest; they involve someone going into cardiac arrest; and they involve an accidental death.

For years, Taser has battled in court to show that its electronic control devices — its ECDs such as the X2 and the X26 — cannot kill. But if its recent settlements are any indication, the company may either be slowly backing away from that premise, or at least attempting to draw a line in time after which the company feels it's no longer liable for someone’s death.

CONTRIBUTING FACTORS

As bars were closing at about 2AM on April 19, 2008, 24-year-old Kevin Piskura was at a music venue about a block away from the Miami University campus in Oxford, Ohio. As the bar closed its doors and patrons exited, a fight broke out. Oxford Police were called. According to a civil complaint filed in 2010 by Piskura’s parents, an officer ordered Piskura to "step back or back away" from the fight. It’s not clear whether he did or not, but the officer soon pulled out a Taser ECD and shot Piskura in the chest. Piskura went into cardiac arrest; his heart stopped beating. He was taken to a nearby emergency room and soon life-flighted to a Cincinnati hospital where he died five days later. This past March, Piskura’s parents settled with the City of Oxford and the Oxford Police Department for $750,000. In October, Piskura’s parents suggested they were considering a settlement with Taser.

The Piskuras did not return calls from The Verge, and an attorney representing their case declined to comment. But Kevin Piskura’s death fits a pattern consistent to ongoing product liability cases involving Taser-related incidents in which someone was killed prior to September, 2009. The $2.3 million payouts likely stem from similar cases; these incidents occurred before Taser made its switch from "non-lethal" to "less lethal."

Regarding that: letters to medical journals and plenty of anecdotal evidence have suggested at least since 2005 that even healthy people could suffer cardiac arrest if shot near the heart with Taser’s "non-lethal" ECDs. By September, 2009, Taser changed its product warnings accordingly. Today, Taser’s ECDs are branded as "less lethal" instead of "non lethal," and its training materials warn that "exposure in the chest area near the heart … could lead to cardiac arrest."

Another ongoing cardiac arrest case against Taser involves Ryan Rich. A 33-year-old physician in Las Vegas, Rich went into cardiac arrest and died in January, 2008 after he was shot five times with an ECD, including once in the chest. That case is headed to trial in January.

A third case comes out of the Detroit suburb of Warren, Michigan, and will head to trial in May, 2014. It involves the 2009 death of 16-year-old, 5-feet-2-inch Robert Mitchell, who died in an abandoned house after being shot in the chest by a Warren police officer with a Taser ECD.

"TURNER COLLAPSED 37 SECONDS AFTER THE DEVICE WAS ACTIVATED."

Darryl Turner’s case is a fourth possibility. Turner was 17 years old in March 2008 when he got into an argument with his boss at the North Carolina Food Lion grocery where he worked as a cashier. According to a complaint later filed by Turner’s parents, the argument escalated to shouting and Turner’s boss eventually called 911. A police officer from the Charlotte Mecklenburg Police Department arrived and asked Turner to "calm down." When the teenager refused, the officer pointed his Taser ECD at Turner’s chest. Turner began to step toward the officer, so the officer "held down the Taser’s trigger, causing the device to continue emitting an electrical current, until Turner eventually collapsed 37 seconds after the device initially was activated." Paramedics soon arrived to find Turner handcuffed and unconscious. He was pronounced dead at the scene.

In an uncommon outcome, Turner’s family was awarded a massive payout in 2011. Taser appealed. In November of this year, an appeals court issued its opinion that Taser should remain liable for Turner’s death, but that the jury’s award needed to be reconsidered. "We have no doubt that Turner had significant value to his parents," the appeals court’s decision read. But the court couldn’t agree with a "reasonable level of certainty" that the boy’s life was worth $6.15 million. The parties are scheduled to head back to court in 2014 to haggle over that figure. Unless, that is, Taser has decided to cut its losses and settle out of court.
ON THE RECORD

Taser International is very good about keeping records. In addition to its Axon Flex on-body police camera that allows officers to record interactions with suspects, the company also collects data every time a Taser ECD is fired. But it’s up to police departments — and up to Taser International — to decide how much of that information is revealed publicly.

The company takes a similar approach in the courtroom.

Taser typically insists on keeping its legal settlements — such as those referenced in its recent $2.3 million payout — secret. Rarely are the terms made public. But it happens occasionally. One Northern California case involved a drunk man off his psychiatric meds who was shot with a Taser ECD after refusing to get off a bus. He went into cardiac arrest. An emergency crew was able to resuscitate him on scene, but after going 18 minutes without a breath, the man suffered a crippling brain injury. He would require a caregiver from that point forward.

After a long legal battle, Taser agreed to settle that case. As per usual, it demanded that the settlement agreement be kept secret. The defendants in the case agreed. But eventually it was revealed that the company had settled for $2.85 million. The settlement figure was only made public after a probate court judge made the unusual decision to disclose the dollar amount in open court.

THERE WAS, THE JUDGE SAID, "THERAPEUTIC VALUE" IN MAKING THE INFORMATION PUBLIC

A report from the San Jose Mercury News later explained the judge’s reasoning. There was, the judge said, "therapeutic value" in making the information public.

Whether or not a judge makes similar decisions about Taser’s recent settlements, it’s clear that the company has decided to settle cardiac arrest cases as quietly as possible because it has maintained for years that its weapons are effective, non-deadly alternatives to firearms. If too much attention focuses on Taser-related deaths, there’s a risk that police departments might choose to sidestep the controversy altogether and opt against Taser's products.

There’s a lot at stake on both sides. For Taser, its NASDAQ-traded stock value is on the line. And for those engaged in open legal battles over Taser-related deaths involving cardiac arrest and factors such as "excited delirium" ("a euphemism for ‘death by Taser’") — as well as those who may literally find themselves facing down a Taser ECD in the future — the value of an open settlement may amount to more than mere therapy. It could amount to life or death.

Report: taser one of 3 factors in man's death

October 23, 2008
By Janice Morse, Cincinnati.com

A ruling has been issued in the case of an intoxicated man who died days after Oxford police used a Taser to subdue him. In a report released today, Hamilton County Coroner O'dell Owens' office said the manner of death for Kevin Piskura, 24, was "undetermined," meaning investigators have not classified his April 24 death as homicide, suicide, accidental or natural.

However, the report lists three factors that contributed to Piskura's death: a heart rhythm problem that deprived his brain of oxygen; acute alcohol intoxication and recent physical exertion; and "recent history of application of conductive electrical device," apparently referring to the Taser.

Piskura, a resident of Chicago and a Miami University graduate, was visiting Oxford. After he was Tased, Piskura was taken to McCullough-Hyde Memorial Hospital in Oxford, and then to University Hospital in Cincinnati, where he died.

It's unclear from the report whether any of the factors played a bigger role than the others. Owens could not immediately be reached to answer questions.

The Enquirer previously reported that Piskura's blood-alcohol level was 0.319, a near-fatal level, when a police officer zapped him with a Taser during a struggle outside an Oxford bar on April 19.

Officials said Piskura was fighting with bouncers and police at the time. A probe by the Butler County Sheriff's Office concluded earlier this year that Oxford Police Officer Geoff Robinson did not use excessive force or violate police procedures when he used the Taser on Piskura.

In a document the Enquirer obtained today, Butler County Prosecutor Robin Piper concluded that any question as to whether Officer Robinson would face criminal charges was moot because the officer's actions complied with department policy and were reasonable.

Piper's report, dated Oct. 7, also recounts previously unreported details about the incident. The report was written after his staff reviewed surveillance videos, the video produced by the Taser itself, witness statements and other records.

Around 2 a.m., Brick Street Bar bouncers were escorting Piskura out of the bar. When Piskura's friend, Steven Smith, attempted to intervene, bouncers escorted him outside, too. Smith and the Brick Street staff began fighting.

Patrolman Robinson "happened upon the situation while on routine bicycle patrol...he immediately dismounted and attempted to intervene to quell the disturbance." Robinson said he yelled to get the group to stop fighting. But Piskura "entered the fray, disregarding Robinson's presence and verbal commands. Robinson then increased his use of force by trying to physically push Piskura away from the others. At that moment, Patrolman Robinson faced the dilemma of single-handledly responding to what was now two groups of men fighting. Patrolman Robinson stepped back and warned the group to stop fighting or the Taser would be deployed."

Brick Street staff and Smith ceased fighting. But "the heavily intoxicated Piskura continued to fight with two Brick Street employees."

Smith had told investigators that Piskura was "out of his mind, blackout drunk," and later tests on Piskura at McCullough-Hyde Memorial Hospital showed Piskura's blood-alcohol level was more than quadruple Ohio's legal limit for driving.

In accordance with Oxford police procedure, Robinson yelled: "Taser! Taser! Taser!" Then he deployed the Taser on Piskura's torso.

"The few witnesses that contradict Patrolman Robinson's statement do so in ways that are not credible, given the evidence," the report states. "For example, some witnesses reported either seeing firsthand or hearing secondhand that Kevin Piskura had been Tased anywhere from three times to as many as six times. This is demonstrably false, as clearly illustrated by the video from the Taser's on-board camera and the firings report from the manufacturer, Taser International. Both pieces of evidence indicate a single activation of hte Taser, for approximately 11 seconds."

The Taser's camera showed Piskura "on the ground, rolling over several times during deployment -- a possible sign of the Taser's less-than-full effect."

"Another witness alleged that Kevin Piskura was (Tased) in the back as he was trying to crawl away from the scene. This allegation is conclusively contradicted by the majority of other witness statements. Additionally, Patrolman Robinson's sergeant observed the marks from the Taser's probes on Piskura's chest."

Reports from McCullough-Hyde hospital and the Hamilton County Coroner's Office also confirm the Taser's barbs left marks on Piskura's chest. "The Taser was not deployed to Piskura's back and was not deployed more than once," the report states.

By shouting, then pushing, then deploying the Taser, Patrolman Robinson "followed the preferred course of action even though the (Oxford police department's) policy allowed him to skip the use of lower levels of force if the circumstances render their use not 'feasible.'" Therefore, Piper concluded, Robinson complied with department policies and questions of possible criminal charges against him were rendered moot.