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Showing posts with label robert heston. Show all posts
Showing posts with label robert heston. Show all posts

Tuesday, May 17, 2011

Ninth Circuit Court of Appeals Upholds Jury Verdict Against TASER International, Inc., in Wrongful Death Suit

First-Ever Products Liability Verdict Upheld

San Francisco, CA (PRWEB) May 11, 2011

The Ninth Circuit Court of Appeals has upheld the first-ever plaintiff’s products liability verdict against Scottsdale based TASER International, Inc., the leading manufacturer of Electronic Control Devices (“ECDs”). TASER had sought to overturn the jury’s wrongful-death verdict claiming various errors during the trial (see the attached Memorandum Decision). However, a unanimous three-judge panel substantially rejected TASER’s appeal and affirmed the verdict. The plaintiffs are extremely gratified by the court's ruling which holds TASER responsible for the death of their son and brother, respectively, according to their attorneys, John Burton of Pasadena, California and Peter M. Williamson of Woodland Hills, California.

According to the plaintiffs' complaint, on February 19, 2005, Robert C. Heston began acting erratically inside his family's Salinas, California home. Suspecting a drug relapse, Heston's father called the police reporting his son's bizarre behavior and asked for help. Officers from the Salinas Police Department used their TASER ECDs repeatedly, ultimately subjecting Heston to 75 seconds of electrical discharges. As a result, Heston suffered a cardiac arrest. He was removed from life support and died the following day.

In their lawsuit, Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW (United States District Court for the Northern District of California (San Jose)), Heston's parents alleged that TASER ECDs are unreasonably dangerous and defective for use on human beings because they were sold without adequate testing and without sufficient warning that multiple shocks on people under the influence of drugs can cause cardiac arrest and death.

On June 7, 2008, the Heston jury found that TASER knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The jury also found that TASER International failed to adequately warn purchasers of its device of the risks associated with its use. It awarded the parents of Robert Heston $1,000,000 in compensatory damages and $5,000,000.00 in punitive damages. The jury also awarded Heston's estate $21,000.00 in compensatory damages and another $200,000.00 in punitive damages. However, it also found Robert Heston 85% comparatively negligent for the incident which ultimately resulted in his death. After post-trial motions, the trial court vacated the punitive damage awards leaving a net verdict of $150,000 to the parents of Robert Heston and $3,150 to his estate. TASER was also ordered to pay $1,423,000.00 in attorneys’ fees under the California Private Attorney’s General statute to attorneys John Burton of Pasadena, California and Peter M. Williamson of Williamson & Krauss of Woodland Hills, California who successfully represented the Heston family.

In upholding the verdict, the Ninth Circuit Court of Appeals did not disturb the jury’s findings that substantial evidence existed to prove that TASER knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The Court, however, did vacate the jury’s award of $3,150 to the Heston estate concluding that insufficient evidence was presented at the trial to support this award. The Court also vacated the award of attorneys’ fees to plaintiffs’ counsel agreeing with TASER that the trial court abused its discretion by awarding such fees under the California Private Attorney’s General statute.

Wednesday, May 11, 2011

Ninth Circuit Court of Appeals Upholds Jury Verdict Against TASER International, Inc., in Wrongful Death Suit

May 11, 2011
PRWeb

First-Ever Products Liability Verdict Upheld
San Francisco, CA (PRWEB)

The Ninth Circuit Court of Appeals has upheld the first-ever plaintiff’s products liability verdict against Scottsdale based TASER International, Inc., the leading manufacturer of Electronic Control Devices (“ECDs”). TASER had sought to overturn the jury’s wrongful-death verdict claiming various errors during the trial (see the attached Memorandum Decision). However, a unanimous three-judge panel substantially rejected TASER’s appeal and affirmed the verdict. The plaintiffs are extremely gratified by the court's ruling which holds TASER responsible for the death of their son and brother, respectively, according to their attorneys, John Burton of Pasadena, California and Peter M. Williamson of Woodland Hills, California.

According to the plaintiffs' complaint, on February 19, 2005, Robert C. Heston began acting erratically inside his family's Salinas, California home. Suspecting a drug relapse, Heston's father called the police reporting his son's bizarre behavior and asked for help. Officers from the Salinas Police Department used their TASER ECDs repeatedly, ultimately subjecting Heston to 75 seconds of electrical discharges. As a result, Heston suffered a cardiac arrest. He was removed from life support and died the following day.

In their lawsuit, Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW (United States District Court for the Northern District of California (San Jose)), Heston's parents alleged that TASER ECDs are unreasonably dangerous and defective for use on human beings because they were sold without adequate testing and without sufficient warning that multiple shocks on people under the influence of drugs can cause cardiac arrest and death.

On June 7, 2008, the Heston jury found that TASER knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The jury also found that TASER International failed to adequately warn purchasers of its device of the risks associated with its use. It awarded the parents of Robert Heston $1,000,000 in compensatory damages and $5,000,000.00 in punitive damages. The jury also awarded Heston's estate $21,000.00 in compensatory damages and another $200,000.00 in punitive damages. However, it also found Robert Heston 85% comparatively negligent for the incident which ultimately resulted in his death. After post-trial motions, the trial court vacated the punitive damage awards leaving a net verdict of $150,000 to the parents of Robert Heston and $3,150 to his estate. TASER was also ordered to pay $1,423,000.00 in attorneys’ fees under the California Private Attorney’s General statute to attorneys John Burton of Pasadena, California and Peter M. Williamson of Williamson & Krauss of Woodland Hills, California who successfully represented the Heston family.

In upholding the verdict, the Ninth Circuit Court of Appeals did not disturb the jury’s findings that substantial evidence existed to prove that TASER knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The Court, however, did vacate the jury’s award of $3,150 to the Heston estate concluding that insufficient evidence was presented at the trial to support this award. The Court also vacated the award of attorneys’ fees to plaintiffs’ counsel agreeing with TASER that the trial court abused its discretion by awarding such fees under the California Private Attorney’s General statute.

Thursday, April 07, 2011

Billings inquest: Bain's death in custody due to meth

A concerned Canadian wrote a very interesting comment on the news reports that follows below. Here's the Canadian's take on the matter:

As you reported in "Bain's Incustody Death Due To Meth", there can be no doubt the drug played a part, but to rule out the multi-stuns of the Taser as possible contributing factor, shows just how ignorant or biased this "medical expert" is. Taser shocks, especially when repeated or prolonged can cause cardiac arhythmias BUT can also lead to life-threatening metabolic acidosis.

In the only successful product liability case against Taser (Heston Vs. TI) two years ago, lawyer John Burton argued successfully that the company's scientists never tested for possible changes to blood chemistry caused by Taser shocks. The Six-Million dollar judgement is on appeal, but the point was made: Tasers can cause acidosis. Please realise Tasers cause muscle strands to twitch uncontrollably. This results in an unnatural surge of lactic acid throughout the blood stream. The acid/base balance in the blood is extremely narrow. If your PH falls fast and far enough, it can cause the muscles around the heart to cease operation, with often deadly effect.

Taser International has acknowledged this, albeit in the fine-print of the latest Training Bulletin # 17 issued quietly last May, for company insiders, Taser trainers and anyone willing to take the 40-minutes needed to download the bulletin from the company's website. Every police officer, share-holder, investor, insurer and government official who sanctions the use of Tasers should read the very long list of risks and warnings, including that of acidosis caused by Taser stuns.

A decade ago when ECDs began flooding the market, everyone was reassured by the manufacturers and the police that these new electrical devices were "safe to use on any assailant" and were "non-lethal". Within several years, especially after the related death toll began to climb, the wording was changed to "less than lethal". Somehow now, after 537 deaths in North America, proximal to Taser use, the language used to describe the devices has changed again to LETHAL. This was the conclusion of the Braidwood Inquiry in Canada. And now in the fine print, ostensibly to reduce the sting of future liabilites, Taser International is admitting the same thing-- Tasers can KILL. This is not what we were all told a decade ago. Did human physiology somehow change in the last ten years, making Tasers more deadly? Or was there a distinct lack of science applied to ensure the weapons were as safe as advertised?

And before a definitive cause of death is decided in the Bains case, the medical examiner should have the Taser involved tested independently, to ensure there is no 'output variance', because as we discovered in Canada, not all Tasers perform the same way. Eighty percent of the older model tasers tested in BC failed, after being sent to the one lab in the country equipped for such tests; eighty percent of the weapons had outputs outside of the safety allowables set by the manufacturer. Those older M26 models were pulled from service, coast-to-coast. Since there is no way of testing Tasers regularly in any police detachment in North America, how do your police or ME know for sure, if they have a defective Taser on their hands or not?

Concerned Canadian,
Vancouver, BC.


April 7, 2011
KRTV.com (Montana)

A coroner's inquest in Billings has determined that the death of Ryan Bain was not a crime.

The jury determined that Bain's death was caused by methamphetamine use.

The coroner's inquest was investigating the death of Bain after he was Tased multiple times and died later in custody.

On October 10, 2010, law enforcement authorities say Bain was seen running naked down the street and stole a van. Officers eventually caught up to him and tried to take him into custody. Officers believed he was under the influence of drugs and say he was non-compliant.

Bain was Tased multiple times and taken to YCDF where authorities say he refused to cooperate and was Tased again. He was placed in a holding cell and a short time later suffered cardiac arrest.

During the second day of the inquest, two medical doctors testifying in the inquest into Ryan Bain's death said that his death appeared to be the result of a methamphetamine overdose and not the direct result of being tasered.

A large amount of medical testimony was presented at day two of the inquest.

American Medical Rescue paramedic Robyn Harper testified saying when she arrived, Bain was essentially dead. Harper called St. Vincent Healthcare emergency room Dr. Sheldon Nelson. After 21 minutes of working on Bain, Dr. Nelson told medics they could stop CPR efforts. That was at 12:19 am. Seconds later, Harper was unplugging a monitor and was "surprised" to see that Bain had a pulse. They took to the emergency room.

St. Vincent Emergency Doctor Sheldon Nelson treated Bain when he arrived at he hospital. He told the jury there is no specific treatment plan for someone who is has taken methamphetamine and that it just has "to wear off." Dr. Nelson said Bain was comatose the entire time he saw him. However his heart rate was up, but that his blood pressure was adequate to extremely low. Bain had multiple medical test done. Dr. Nelson said he believes Bain's death was the cause of an "extremely significant overdose of meth."

Dr. Kristin Spanjian, an intensivist who oversees care at the Intensive Care Unit at St. Vincent's testified by video. The interview was conducted March 17. Dr. Spanjian says the cardiac arrest was due to "acute methamphetamine intoxication." She said the taser likely did not play a role in his death because he would have suffered cardiac arrest shortly after the incident.She went on to explain that people with severe acute meth intoxication display signs of severe acidosis, which is increased acidity in the blood. Bain had a ph of 6.9. The normal ph level is a 7.4. She said some of the factors leading to his cardiac arrest were the acidosis, the chemical reaction in his body and dehydration.

Bain's former fiancee Kalli Ackerman took the stand saying she lost contact with Bain for 45 minutes on October 10, 2010. When she saw him again at her father's house, he appeared to be fine at first and then quickly did not make sense and was hot to the touch. She tried taking him to the hospital, but Bain's mental state quickly changed and he did not recognize her and appeared to be afraid of her. She said she was begging him to get help when he took off running down an alley. That was the last time she saw Bain alive.

Friday, August 13, 2010

Man who suffered brain damage after being stunned wins $2.85M lawsuit from Taser

August 12, 2010
Jennnifer Squires, Mercury News

SANTA CRUZ -- A Watsonville man permanently injured after he was shocked with a Taser nearly four years ago won a $2.85 million settlement against the stun-gun maker this summer, the first time Taser International has settled a product liability case, according to court documents.

However, the company did not admit to any liability for the anoxic brain injury Steven Butler, 49, suffered after being shocked.

Over objections by the company's attorneys, Judge Jeff Almquist declined Thursday to seal the court documents that divulge the dollar value of the agreement.

Almquist said there's "therapeutic value" in leaving the court's business open to the public, even though those involved in the case signed a confidentiality agreement that forbids them from discussing the settlement.

"The agreement seems to be the best that can be accomplished," Almquist said.

Butler was drunk and off his psychiatric medication in October 2006 when he refused to get off a bus and a Watsonville police officer used a Taser X-26 electronic control device to subdue him. After being stunned, Butler went into cardiac arrest and stopped breathing. It took medical personnel 18 minutes to resuscitate him and, as a result, Butler suffered a debilitating brain injury.

Butler has brain damage and no short-term memory; he also lost mobility and his motor skills decreased. He needs around-the-clock care and can't be left alone, according to court documents.

His condition is stationary, meaning there's little chance Butler will recover, Almquist said in court.

Since the injury, Butler's brother, David, has been caring for him. Part of the settlement award will be put into a special-needs trust to provide the family with more than $4,700 a month to cover medical and other costs. The payment begins in September and is guaranteed for at least 20 years.

"This resolution will allow the Butler family to comfortably care for Steve for the rest of his life," attorney Dana Scruggs, who represented the Butlers, wrote in court papers.

Other money from the award will pay old medical bills and possibly purchase a home for Butler. A significant portion of the settlement will go to the family's attorneys, who spent more than 600 hours and $250,000 preparing the case for trial.

During Thursday's hearing, Steven and David Butler sat together in the back of the courtroom. Outside of court, the brothers, thin men with matching mustaches, declined to talk about the resolution.

Another of the family's attorneys, Nathan Benjamin, said "they're very happy to have this resolved." In a declaration filed by the court, Scruggs outlined the challenges in taking on the stun-gun company.

Taser International claimed Butler had several pre-existing cardiac and health conditions that contributed to his injury. However, Scruggs said most of the scientific and medical research about the adverse effects of electric shock from a stun gun is directly or indirectly financed by the company.

At the time of Butler's injury, the company had never lost a lawsuit.

Attorney John Burton, who won a lawsuit against the city of Salinas and Taser International on behalf of the family of Robert C. Heston Jr., helped with case. Heston died after being stunned multiple times by a police officer armed with a Taser in February 2005. The Heston case, in 2008, marked the first time a stun-gun victim had won a product liability trial against Taser International.

The legal team assembled for the Butler case compiled investigation, discovery, pleadings and research that filled 11 banker's boxes. They were prepared to go to trial in the spring, but the case was postponed and then settled.

Tuesday, July 13, 2010

Is excited delirium killing coked-up, stun-gunned Miamians?

July 13, 2010
By Gus Garcia-Roberts, Miami New Times News

"And then all of a sudden he broke out in a great flame of anger, stamping with his foot, brandishing the cane, and carrying on like a madman." — The Strange Case of Dr. Jekyll and Mr. Hyde

It was as if he were two people. Most of the time, Xavia Jones was a mellow, caring father to his daughter, Catherine. He was an ex-con determined to self-improve, a CNN junkie who studied after work at the Miami Beach Convention Center to earn union certification.

But more and more often, something terrible was taking hold of the lanky Opa-locka native whose skin was inked with "Immortal," "Outlaw," and "Thug Life." Xavia's live-in girlfriend, Carrie, would find him hiding behind the couch, a sweating, convulsing fugitive from invisible corrections officers or other unknown enemies. And he'd burst into evil spells, slapping Carrie and pulling her hair, threatening to kill her for cheating on him, his face a dark slate. "He could be a very good friend," Carrie says, "or the next moment he could be scared and paranoid, thinking everybody in the world was after him."

And then one Friday night after work in January 2008, Xavia permanently entered his own private horror show. Sitting on a couch among friends in a Coral Gables condo, sweating, twitching, and blasted on lines of coke and a half-dozen beers, he hugged himself and pleaded, "Oh, please, Jesus, give me the strength not to do this."

Then he began growling, screaming, and running in and out of the apartment like a man on fire.

At 2 a.m., Coral Gables cops found him lying in the middle of traffic-clogged U.S. 1, screaming, "God is coming to take me!" As an officer edged toward him with gun drawn, Xavia's eyes gleamed as he dared him: "Kill me, kill me, shoot me, shoot me."

One of the four cops present would later say Xavia's threatening posture made it "unsafe to approach." So Sgt. Jesus Garcia unloaded his Taser four times into the writhing man. It "seemed to have no effect." So another officer, Scott Selent, hit him with five more electrical bolts. This time, Xavia "kind of locked up, almost like he was a board," the police would later recall.

As the electricity coursed through Xavia's muscles, the cops slapped cuffs on his wrists, dragged him to the sidewalk, and set him facedown on the pavement. "What the heck is going on?" one officer asked.

"Fuck you, motherfucker," was the answer. As soon as Xavia said it, his body went limp and a white liquid trickled from his mouth.

Xavia Jones was the fifth person to die after being hit with a police stun gun in Miami-Dade, according to a December 2008 study by Amnesty International, ranking it seventh of all counties in the United States. Fifty-two people died in Florida after being hit by the 50,000-volt department-issued Tasers, second only to California's 55.

But the electricity didn't kill Xavia, according to Miami-Dade County associate medical examiner Erik Mont. The official cause: "excited delirium syndrome, associated with cocaine use."

The symptoms were all there, wrote Mont: "agitation, excitability, paranoia, aggression, great strength, numbness to pain, and sudden death."

In fact, in all five county cases of death following tasing, the medical examiner's office named excited delirium as the cause of death. According to the 2008 Amnesty International study, 111 of the nation's 334 post-Taser deaths were blamed on excited delirium.

The bizarre syndrome, first diagnosed in Miami, transforms its typically sane victim into a slobbering, raging, supernaturally strong menace hell-bent on self-destruction. It could be ripped straight from the pages of The Strange Case of Dr. Jekyll and Mr. Hyde, Scottish scribe Robert Louis Stevenson's 1886 archetypal tale of split personality. In the novella, the gentle Dr. Jekyll drinks a potion to become the murderous, hideous Mr. Hyde. In this real-life affliction, the spark is cocaine.

Excited delirium appears to be inflicting Miamians at an especially alarming rate. Since 1989, the Miami-Dade medical examiner's office has declared 38 people dead of the syndrome. In the past decade alone, that number is 28, compared to five during that time in Broward County.

The Miami victims were predominantly male. Twenty were white or Hispanic; 18 were black. They included a hairdresser, a truck driver, and an attorney. Thirty-six of them had cocaine in their system. The other two were diagnosed schizophrenics.

Among the cases: the crack-addicted former lawyer who ran around Liberty City, screaming that somebody was trying to kill him. He broke into an abandoned house and began beating the walls, and himself, with a stick when he was tased. He died in handcuffs soon after.

Then there was the 35-year-old Northwest Miami-Dade father who for a full day had been "acting paranoid" and was unable to recognize his children, his wife later told cops. Police showed up after he ran into noontime traffic, and he stopped breathing one to two minutes after being handcuffed.

Perhaps the strangest rampage was that of the Key Largo vacationer from Homestead who jumped on the hood of a moving vehicle and rode it for a mile, ransacked a toll booth after chasing away the collector, and climbed in and out of an unlocked van before bursting into an occupied houseboat and hiding in the bathroom. When cops showed up, he swam to a small island, where he was finally apprehended and expired in plastic cuffs and leg restraints.

While Miami-Dade seems to be far outpacing more populated counties throughout the nation in the number of excited delirium cases, critics from the American Civil Liberties Union and the families of victims believe there's a reason the syndrome resembles overwrought fiction: because it is.

The syndrome is not listed in textbooks or recognized by the American Medical Association or the American Psychiatric Association. It has been met with skepticism as it has spread to the United Kingdom and Canada: A police psychologist in Canada recently made headlines when he testified that excited delirium is a "mythical... dubious disorder" used to justify the use of stun guns, and the Canadian Medical Association Journal has termed it a "pop culture phenomenon."

It is police, not excited delirium, causing at least some of the deaths, critics charge. Of 35 excited delirium death reports the Miami-Dade medical examiner's office made available to New Times, 23 of the subjects died after struggling with police officers. Besides the five tasing incidents, they were hogtied, headlocked, and pepper-sprayed. All were unarmed.

"It's overused by medical examiners across the country to hide brutal murders by law enforcement," says Ronald J. Kurpiers, an attorney who recently challenged the diagnosis in a U.S. Supreme Court lawsuit against West Palm Beach Police officers. "It's bullshit."

As for Xavia Jones's bereaved girlfriend, Carrie, she tells their 5-year-old daughter, Catherine, that Daddy died of a heart attack. "When she gets older," Carrie explains, "I'll tell her the whole story."

Asked if she thinks the police killed Xavia, Carrie scoffs. "I can tell you that he wouldn't have died if they weren't there."

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Four decades before Robert Louis Stevenson is said to have scrawled his nightmare-inspired tale of rampage in a three-day cocaine-fueled writing spell, a horse and carriage pulled on to the manicured grounds of the McLean Asylum for the Insane in Somerville, Massachusetts. The coach had traveled 40 miles, and the 31-year-old woman whom orderlies struggled to extricate had "contended violently" the entire way.

She would be immortalized in scientific literature only as "E.A.P.," and she "attack[ed] wildly and discriminately all who approached her."

Her condition that day in July 1847 was a mystery. She was an Army wife, and her husband was away fighting the Mexican-American war. She didn't drink, so the asylum director, Luther V. Bell, ruled out she was suffering from the withdrawal mania delirium tremens. The normally reasonable woman had simply blown a fuse, it appeared, during tea with friends.

McLean Asylum was an opulent place, later home to the notably unstable such as Sylvia Plath, Rick James, and Ricky Williams. The patients ate lobster, and the psychiatric methods were relatively modern. But director Bell broke his own rule and tied E.A.P. to her hospital bed. For the next 16 days, she remained "highly excited" even as she was leeched and administered opium. She rarely slept and "recognize[d] no one."

Then E.A.P. contracted diarrhea. The next day, she simply died.

Bell observed 40 such befuddling cases of unexplained sudden mania from 1836 to 1849, with 30 of them ending in death. The "exhaustive mania" spurned him to publish an October 1849 study in the American Journal of Insanity.

He described the typical afflicted patient as uncomprehending and "suspicious," with dilated eyes and a "pinched-up... florid and greasy" face. "Oftentimes [the] sensation of danger will exhibit itself in the patient attacking any one who approaches him with a blind fury,'' Bell wrote. "If held, he will struggle with the utmost desperation, irrespective of the number or strength of those who may be endeavoring to restrain him... At the expiration of two or three weeks, your patient will sink in death."

The minority that weren't killed by exhaustive mania, wrote Bell, "emerge[d] in a state of absolute recovery at once."

While he noted that "almost every one" of those with the mysterious affliction was strapped to his bed, the doctor was clearly perplexed as to treatment options. He could only cautiously recommend small doses of opium and wine.

The affliction would become known as Bell's mania. Other early 20th-century scientists performed their own studies on similar lethal spells they called "psychotic furors" and "restraint psychosis." And more than a century after the mystery at the gilded asylum, director Bell's findings were revisited in a place he likely could not have imagined: the cocaine-flooded streets of 1980s-era Dade County.

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As the Victorian upper crust had treasured its cure-all opium, Miamians doted on their chic white powder at the height of the disco era. "Cocaine was thought to be an open secret, a wonder drug that nobody ever died from," says Dr. Charles A. Wetli, who took his post as Dade County's second-in-command coroner in the late 1970s. Meanwhile, his office processed two overdoses a week.

So Wetli, also a University of Miami pathology professor, co-authored a scientific paper about "death caused by recreational cocaine use" — a revolutionary concept at the time. But it was more difficult to explain an influx of strange cases that began showing up on his gurney: subjects who had raged wildly before sudden death. Cocaine was found in their systems, but not enough to cause overdose.

Wetli noted a profile. "It only happened in chronic users of cocaine, and predominantly in males," he says. "It's as if they're impervious to pain — to pepper spray, to batons, to numchucks. You spray them with pepper spray and they just sort of look at you."

Wetli and UM colleague David A. Fishbain found seven such cases — six in Miami-Dade and one in Palm Beach County — that had occurred during a 13-month period in 1983 and 1984. The resulting study pioneered excited delirium.

The death cases read like classics of the syndrome: The female drug trafficker, the only woman in the study, who suddenly jumped out of a moving car. "You're trying to kill me. Please don't kill me. I have children," she begged of her boyfriend, who was driving, as she dove out the passenger-side door. She died after several police officers "subdued" her with handcuffs and ankle restraints.

Or the 26-year-old man who fought with his boyfriend, stripped naked, and "ran about the apartment smashing a variety of objects," lacerating himself, before expiring in restraints at the hospital.

And the cocaine freebaser who "began running down the street yelling and screaming unintelligibly." He stole and fired a police officer's gun after being tackled. Cops struck him twice on the head with a heavy flashlight, but the medical examiner didn't find lethal injuries.

In five of the seven cases, the subjects died in police custody. Wetli and Fishbain didn't know why excited delirium caused death, but they posited it might have had something to do with the increasing purity of street cocaine. Their only recommendation was that cops and paramedics "be aware of the potential for sudden death" in crazed subjects.

But if Wetli was treading on shaky ground, his biggest case would call into question whether he was stretching the evidence to fit his theory.

For a decade, the bodies turned up in flop motels, parking lots, and alleyways throughout inner-city Miami. They were often naked from the waist down and all showed signs of recently having had sex. They were all black women. Most were prostitutes and chronic cocaine users.

Cops and medical examiners were stumped by the 32 corpses found from 1980 to the turn of the next decade. But it wasn't the work of a subtropical Jack the Ripper, declared Dr. Wetli. Autopsies "have conclusively showed that these women were not murdered," he told the now-defunct Miami News in 1988. Instead, he hatched a brazen theory that would come to provide ammunition for modern-day debunkers of excited delirium.

Wetli posited that a female offshoot of the syndrome, involving the combination of sex and years of cocaine use, had caused the serial deaths. "My gut feeling," Wetli told New Times in 1989, "is that this is a terminal event that follows chronic use of crack cocaine affecting the nerve receptors in the brain."

"For some reason," he expounded to the Miami News, "the male of the species becomes psychotic [after chronic cocaine use] and the female of the species dies in relation to sex."

But in 1992, police announced they had found a serial killer responsible for the deaths: 36-year-old Charles Henry Williams. Wetli's boss, chief examiner Joseph Davis, exhumed the bodies for re-examination and found evidence of asphyxia. Williams died of an AIDS-related illness before he could face the mounting evidence against him, which included physical links, accounts from escaped victims, and a pattern that showed that when he was in prison, the deaths ceased.

Wetli's apparent missed call 20 years ago casts doubt on excited delirium today, says Nashville attorney and National Police Accountability Project member Andrew Clark. "He's one of the guys who coined excited delirium, and he misapplied it to the work of a serial killer," Clark says. "How do we know his colleagues aren't making a similar mistake?"

Today, Wetli, who is in private practice in New Jersey, initially downplays his theory. He had to make a diagnosis so that the bodies could be buried, he says. But then it becomes clear he still believes that death-by-sex might have killed those women 20 years ago. "It's certainly a possibility," he says. "The guy never went to trial, so we'll never know. The police had a commendable theory in suspecting him. But believing in something, and proving it, is another story."

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University of Miami's brain bank, located on the fourth floor of a drab building in downtown Miami, is all cramped quarters, depressing lighting, and towering filing cabinets. It has about as much evil-lair feng shui as a small-town library.

But this — if you believe critics — is where neurology professor Deborah Mash, Dr. Wetli's heir as the world's leading expert on excited delirium, bends over brain samples, presumably with a hunchbacked assistant by her side, and concocts the science fiction that is gaining acceptance throughout the world.

"She's just a charlatan," California attorney John Burton, who has turned taking on Taser into his career, says of Mash. "She's not a medical doctor, and she has no business opining on cause of death."

But the 56-year-old, dark-eyed neurologist, who wears pantsuits and a skeptical smile, doesn't act the villain when she meets with New Times. She calls a reporter "silly boy" in a chirpy drawl and commiserates with the anger she attracts. "Everybody's pointing fingers. Nobody's happy," she says of excited delirium deaths. "And the problem for medical examiners is that they have no anatomic cause of death. You're running around manic one minute, and the next minute you're dead."

It's not the first time Mash has been called a junk scientist. She made headlines in the 1990s when she championed the use of an organic African hallucinogen called ibogaine as a "vaccine" for cocaine dependence. Stonewalled from government funds, she opened an ibogaine clinic on the Caribbean island of St. Kitts, and she says she's still continuing her research on the drug through private funding.

Mash has met similar resistance with excited delirium. The ACLU says it's used to "whitewash clear cases of police abuse," as spokesperson Eric Balaban puts it.

Founder of UM's groundbreaking Excited Delirium Education, Research and Information Center, Mash probably hasn't helped matters by providing paid expert testimony to Arizona-based Taser, International. The $2 billion company, which distributes stun guns to 40 countries, has successfully fended off dozens of wrongful death and product liability lawsuits.

Taser, which insists its guns are nonlethal, has become an enthusiastic lobbyist for excited delirium. Its reps distribute books about the subject at conferences for medical examiners and police chiefs, send information to medical examiners processing in-custody deaths, and even recently circulated a ready-made statement for police departments to use when somebody dies after being tased: "We regret the unfortunate loss of life. There are many cases where excited delirium caused by various mental disorders or medical conditions, that may or may not include drug use, can lead to a fatal conclusion."

The company has gone so far as to successfully sue medical examiner's offices, such as the one in Akron, Ohio, for listing Taser as a cause of death.

As stun guns have proven virtually unassailable in court, governments across the nation have adopted them en masse. In 2005, a Miami-Dade County grand jury recommended Taser use even in non-life-threatening situations. The finding cited excited delirium repeatedly, endorsing the use of Tasers "as a nonlethal method to incapacitate individuals" believed to be in the throes of the mania.

You could say the company appreciates Mash's work. "She's doing really cutting-edge research all on her own," says Taser spokesperson Steven Tuttle, "and it's very fascinating stuff."

In a 2009 deposition for a civil case against Taser, Mash admitted to earning $16,000 from Taser for excited delirium testimony the year before. In the court interview, she claimed to have forgotten how much the company paid her in previous years, and she recently refused to tell New Times how much Taser has paid her since. "I haven't done my taxes," says Mash, co-owner of an $868,000 North Bay Village house with ex-husband, former Miami-Dade Democratic Party chair, and mayor of the village, Joe Geller. The neurologist adds that Taser has never funded her research.

Mash insists she has testified only as an expert on excited delirium and has no opinion on the safety of stun guns. "Who cares about the Taser?" she squawks. "I don't care about the Taser, and I'll tell you why. Excited delirium was happening before the Taser. Excited delirium was happening in the 1800s, in Bell's institutionalized psych patients. If it happened with pepper spray, you'd say, 'Oh, it's the pepper spray that's killing them.'"

The same goes for restraints, hog ties, and baton strikes, Mash says. But the bottom line: "We have some cases where there were no police involved, and they still died."

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London native Matthew Kahn came to South Beach, along with his boyfriend and three other friends, seeking to celebrate the turning of the millennium in debaucherous fashion. The 28-year-old got his hands on a bag of crystal meth and snorted it away. And then, his partner Dale later told cops, he simply went "mad."

In the early morning of January 3, 2000, Matthew ripped apart the bathroom in a guest room at the Clay Hotel on Española Way, slicing and bruising himself in the process. Just before 10 a.m., paramedics found him in the throes of continuous seizures. He died in the South Shore Hospital emergency room, with only about a tenth of the amount of cocaine or meth in his system needed to cause overdose.

The English tourist's death is one of about five in Miami-Dade's recent history that Dr. Mash has reason to tout. There were no cops involved, no struggle, and no blunt trauma. Matthew, like those Massachusetts asylum patients of scientific lore, simply expired.

The same is true for a 36-year-old bail bondsman named Nathaniel Blash, married father to two teenagers, who was found dead, wearing only boxer shorts and jewelry, lying face-up under an SUV on NE 53rd Street, with cocaine in his system and no signs of injury.

And 29-year-old Marlon Sankar, a clean-living truck driver who apparently turned to cocaine in his distress over a breakup. Authorities found him lying nude and bleeding in his Miami Springs front yard after he tore apart his bathroom with his bare hands. (One simple theory for all of the destroyed bathrooms: that's the most common place to use drugs.) Marlon claimed he had been robbed and beaten — which was later determined to be untrue — and he died suddenly at Jackson Memorial Hospital.

And 41-year-old Roosevelt Baker, who on a hot July afternoon was sprinting in and out of a South Miami RaceTrac gas station and yelling incoherently when he collapsed dead before police arrived.

In this handful of cases, neither family members nor lawyers contested Dr. Mash's cocaine-induced syndrome. It seems there was nothing else there to cause death.

As a police report put it in the case of 29-year-old Stephen Daugharty, who collapsed after running through his Homestead neighborhood while screaming that someone was trying to kill him: "His father said that he had a good heart, but he loved drugs more than life."

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Even as the controversy has raged, Mash has spent the past decade studying patterns in the dissected brains of cadavers diagnosed with excited delirium. And she claims she is close to solving the mystery of why the disputed syndrome causes death.

Mash now believes certain people are genetically predisposed to excited delirium. Cocaine, methamphetamine, or in some cases, unmedicated mental illness is the spark that causes the "electrical event" transmitted from the brain to the heart.

"It's almost like a jack-in-the-box," Mash says of those prone to excited delirium. "The springs are fully wound. You can walk around your whole life like this and you're not going to pop your cork. But if you start smoking crack, and you've been hitting the crack pipe for a number of years, and then one day — dun-dun-dun — you have full-blown excited delirium."

The brain goes into hyperthermia, sizzling like bacon at temperatures of 105 degrees or higher, causing extremely sudden cardiac arrest, which is why many sufferers tend to rip off their clothes or seek shade under vehicles. "Medical examiners have described cases," Mash says, "where paramedics get to the scene and the room is trashed, there are ice cubes everywhere, and the subject is dead. That tells me that person was trying to cool down."

Mash believes some people might suffer "flicker episodes" — nonfatal spells — of excited delirium. If true, that could explain the flashes of strange behavior Xavia Jones exhibited months before being tased in Coral Gables, and it might even solve the mystery of those briefly afflicted patients at the 19th-century McLean Hospital who snapped out of their madness as quickly as they had been smitten by it.

However, there's still no way to identify those cursed with excited delirium until it's too late, Mash says. She responds it's "not [her] job" to give advice to cops or paramedics who encounter somebody in the throes of excited delirium. And she becomes glib when asked how people can protect themselves from dying of the syndrome: "Yeah, don't do drugs. If you're at risk for excited delirium — of course, we don't know who you are — no methamphetamine or cocaine for you. Start with that. And if you're a psychiatric patient, please keep your medicine compliant."

But Miami-Dade Fire Rescue paramedics have taken an unprecedented step in battling the body count: They are now equipped with excited delirium survival kits, designed to stop brains from hitting the griddle.

The new protocol was dreamed up by Miami-Dade chief medical examiner Dr. Bruce A. Hyma — an unabashed excited delirium bible-thumper and member of the Mash-founded UM research center — and fire-rescue officials. "We discussed how we can maybe abort this cycle and somehow save some lives," Hyma says. "The long and short of it is, if we can minimize the amount of physical exertion when this whole process starts, we can mitigate the amount of overheating that leads to death."

The plan, which has been in effect since 2007: First, a police officer tases the manic subject. Next, rescue workers quickly administer a nasal hit of Versed, a knockout drug commonly used on patients before surgery. Last, the subject is injected with iced saline to keep his or her temperature down. "The key is that when one of these events occurs," Hyma says, "it [should] be recognized as a medical emergency, not as a domestic altercation or a civil disturbance."

Hyma believes Miami-Dade is the only county to have such an approach in action, although "maybe others have copied it now and are using it." Hyma offers the unverified claim that 19 of 20 manic subjects hit with the Versed-and-saline cocktail have survived. One hitch: Because they lived, there's no way to prove those survivors were suffering from excited delirium in the first place.

Hyma hopes counties across the nation soon follow Miami-Dade's lead. Then comes the day, naturally, when paramedics are equipped with Tasers. Which is further gloom and doom for the civil rights set. Amnesty International's Jared Feuer sounds fatigued when told of the innovative approach: "So, wait, they tase them and then drug them?"

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"Right in the midst there lay the body of a man sorely contorted and still twitching." —Dr. Jekyll and Mr. Hyde

It's apparent Linda Lewis misses being a mother. She attempts to gorge a reporter on soda, offers to make him lunch, and sternly advises him against speeding on his way back to Miami. Her Lantana home is a shrine with photos of her son, Donald Lewis, who lost his life at the age of 38 on the side of a road in October 2005. Every so often, she picks one up and shakes it. "Does this look like a drug addict to you?" she demands. "He could have been a model!"

The pictures display a John Mellencamp song come to life: shirtless and handsome, with an American flag tattoo on his bicep and a big, beef-eating smile.

It's clear there were two Donalds. There was the one Mom knew, the hard-working screen installer who made $40,000 a year, doted on his teenage son, and grew husky on her home-cooking.

Then there's the one police officers knew: arrested upward of 60 times on drug-possession and petty charges, one of those crackheads who swear to go clean but never do.

On October 19, 2005, Mugshot Donald won the battle for good. That's the day West Palm Beach cops found him writhing and incoherent along 45th Street, wrestled him to the ground, hogtied him, and then struggled in vain to revive him when he suddenly went limp.

A Cops TV crew captured some of his grunted final words: "The cops are killing me... Mother, I love you. Father, I love you. Jesus, I love you."

The Palm Beach medical examiner's ascribed cause of death: "sudden respiratory arrest following physical struggling restraint due to cocaine-induced excited delirium."

What's really happening in the unaired footage depends upon whom you ask. To Dr. Mash, Donald's paranoia and imperviousness to pain — he withstood chokeholds and hard knees to the back and neck from four large male police officers — would appear to be classic excited delirium. But to Linda Lewis, who forced herself to watch the video only once, those same methods used on an unarmed, handcuffed man mean something altogether different. "Excited delirium didn't kill my son," she says. "The police killed my son."

Lewis filed an excessive force suit against the City of West Palm Beach and the five officers on the scene. Dr. Michael Baden, former New York City chief medical examiner, testified that Donald had in fact died of "asphyxia caused by neck compression."

A federal judge ruled the police were protected from the lawsuit by "qualified immunity," and an Atlanta appeals court upheld the decision. This past February, the U.S. Supreme Court dismissed the suit without explanation.

But if excited delirium has become legal Kevlar for police departments and Taser International in wrongful death suits, a few bullets have recently pierced the vest.

In June 2008, a California jury ordered Taser to pay $6.2 million to the family of Robert Heston, who died after being stunned by Salinas Police, despite the company's defense that he had died of excited delirium. Attorney John Burton argued that the company should have known its guns could cause cardiac arrest, and issued a proper warning to police. Though the penalty was later reduced to $1 million, it was the first time Taser had lost in court.

And this May, the City of Fort Worth, Texas, paid a $2 million settlement to the family of 24-year-old Michael Patrick Jacobs, who died after being tased by cops last year. The settlement came with no admission of guilt, but an unprecedented step by Taser spoke volumes. The company issued a bulletin to police departments advising officers to avoid tasing people in the chest.

Taser spokesperson Tuttle, who maintains that his stun guns have still never been proven to be lethal, downplays that development. "The one thing we've always recommended is that the back would be a great shot because there's more nervous tissues and more muscles back there. We're going to have more problems if people aren't using it where we recommend it for maximum effectiveness."

The courtroom batterings of Taser and excited delirium do nothing for Linda Lewis, who has begged for "just an apology" from the officers involved in her son's death. There is no further recourse in her lawsuit against the City of West Palm Beach. Says her attorney, Ronald Kurpiers: "The police literally got away with murder."

Sunday, April 11, 2010

British Columbia government wants Taser legal challenge of inquiry results tossed

April 11, 2010
By James Keller, The Canadian Press

VANCOUVER, B.C. — Taser International's fight to quash a public inquiry report that concluded the controversial weapons can kill lands in a Vancouver courtroom on Monday.

The British Columbia government will ask the court to toss the weapon manufacturer's legal challenge of the findings from commissioner Thomas Braidwood's report from the first phase of a public inquiry prompted by the death of Robert Dziekanski at Vancouver's airport.

The 550-page report released last year found that a jolt from a Taser could be fatal, and the weapons' use should be restricted.

Arizona-based Taser, which has a long history of litigation against any suggestion the stun guns are unsafe, responded with a blistering legal challenge alleging bias on the part of Braidwood, the inquiry's lead lawyer and a medical expert involved with the proceedings.

The province has now filed its own equally biting reply, calling Taser's petition "offensive and abusive."

"The only evidence of any bias is that the petitioner (Taser) says the conclusion is wrong," the province said in a document filed with the B.C. court.

"That is, the petitioner believes that the case that the Taser is harmless is so overwhelming that the commissioner's contrary findings themselves give rise 'to a reasonable apprehension of bias.' This is an extraordinary attempt to use judicial review to conduct a collateral attack."

Monday's hearing will deal with the government's motion to dismiss the legal challenge.

The B.C. government ordered a two-part public inquiry after Dziekanski's death in October 2007.

RCMP were summoned after the would-be immigrant became agitated and began throwing furniture in the arrivals area of the airport. He was confronted by four officers and stunned multiple times with a Taser.

The first phase of the inquiry was held in 2008, when Braidwood examined Taser use in general by law enforcement agencies in British Columbia.

While his report from that phase raised concerns about Tasers and recommended changes to how they're used, Braidwood also said they are a necessary tool for police.

The commissioner then undertook months of hearings last year examining Dziekanski's death specifically, and a final report from that phase is expected to be made public by the summer.

Last August, Taser filed a petition with the B.C. Supreme Court asking that Braidwood's first report be thrown out and that he be prevented from using any of his findings - which include that Tasers can kill - in his report into Dziekanski's death.

The petition alleged Braidwood made conclusions that weren't supported by the evidence, and that Taser was denied the right to fully participate.

"Was the process by which that conclusion was reached a fair one? We say it was not," Taser's lawyer, David Neave, said in an interview.

"The company is concerned that the principles of fairness were not followed."

The B.C. government contends Taser had no legal right to participate, but was nonetheless given "extraordinary" involvement as a courtesy.

Furthermore, the province argues Braidwood's report can't be subject to judicial review because the first phase of the inquiry was a "study commission" the role of which was to make policy recommendations to the government, not to determine facts or assign blame.

"Taser was afforded every opportunity to make submissions to the study commission," the province's said in a court filings for the pending case.

"What Taser cannot do is control the way the submissions are weighted and assessed."

It's not clear how much difference the case will make to how the weapons are used in Canada, regardless of whether the report's conclusions are thrown out or allowed to stand.

The RCMP has already significantly restricted its policies on how the weapons should be used, and the B.C. government has adopted all of Braidwood's recommendations.

But Taser has a long history of aggressively defending its weapons in court.

Last year, the company sent out a news release boasting it had successfully won its 100th dismissal of a liability lawsuit, however, the company cannot claim a perfect legal record. In 2008 a California jury ruled the weapon was at least partially responsible for the death of a man who died in police custody.

The company is quick to contact media organizations about stories on deaths that may be linked to use of their weapons, and when a state medical examiner in Ohio ruled that three men's deaths were in part caused by the effects of Tasers, the company sued.

Taser eventually won, and in May 2008 a judge ordered the medical examiner to delete any references in the autopsy findings that suggested the stun guns were to blame.

Sunday, January 10, 2010

Did Court Deal Fatal Blow to Tasers for Police?

January 10, 2010
New America Media, Commentary, Raj Jayadev and Aram James

In what is being heralded as a landmark decision, the United States Court of Appeals for the Ninth Circuit recently declared that police officers could be held liable for using a Taser without proper cause. And in making their determination, the court also set new legal parameters on how law enforcement is to use Tasers, stating, "The objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public." The federal finding substantially changes the landscape of Taser usage, and may signal the end of Tasers for law enforcement agencies who are now more vulnerable to civil and criminal action then ever before.

The decision, which has already caused law enforcement agencies to re-evaluate their Taser policies, stems from a case involving a Coronado police officer, Brian McPherson, who tased unarmed 21-year-old Carl Bryan during a traffic stop for a seatbelt infraction in Southern California. After being pulled over, Bryan was standing outside of his vehicle, wearing only boxer shorts and tennis shoes. He was 20 to 25 feet from the officer, and when tased, fell face first to the ground, fractured four teeth, and had to get the Taser prongs removed with a scalpel. Bryan went on to sue the Coronado Police Department, and the federal appellate court was making a determination if McPherson had immunity to the lawsuit as an officer. The court ruled in favor of Bryan.

And while any regulation on Taser use is a move forward from the status quo, which repeatedly has left civilians tased for innocuous circumstances, and the decision acknowledges some of the inherent dangers of the weapon, it falls short in a most critical way. The instruction is based on a false premise that Tasers “fall into the category of non-lethal force” as stated in Judge Wardlaw’s written opinion. By denying the lethality of Tasers, the court mistakenly treats Tasers as an intermediary weapon, like a baton, when it should be treated as a deadly weapon, like a firearm.

According to Amnesty International, there have been more than 350 deaths due to Tasers. In San Jose, which was the first city to arm every one of its officers with the weapon in 2004, there have been six Taser-involved deaths, more than a death a year since its inception. Currently, the city is facing a $20 million lawsuit from the family of one of the more recent victims, Steve Salinas. The unarmed Salinas was tased to death in his motel room in 2007. Like Bryan, Salinas’s ultimate tasing originated from a minor starting point: police were called to the scene due to allegedly loud noises emanating from the room. Salinas, who was naked at the time, died in the room shortly after the police arrived.

The growing body count attributed to Tasers refutes the commonly accepted advertisement from its leading manufacturer, Taser International, that Tasers are a non-lethal option for officers. Furthermore, the unreliability of the weapon to bring down its target makes it dangerous even for officers who may be in a situation requiring deadly force. According to a San Jose Mercury News study of the San Jose Police Department use of Tasers in 2007, Tasers in dart mode are only effective 70 percent of the time in bringing down their target, and in stun mode only 60 percent of the time.

The Taser consequently is left in a state of limbo. Its capacity to unintentionally kill leaves it too dangerous to use in non-lethal circumstances, say when an officer would use an intermediate weapon, such as pepper-spray or a control hold. Yet, due to its unpredictability to subdue a target, using a Taser would not be a gamble an officer would want to bet on if his or her life were in jeopardy.

The Bryan case, where the subject is unarmed and charged with a minor infraction or misdemeanor, is more the rule then the exception according to recent studies. In a Houston Chronicle study of Taser use by the Houston Police Department in a two-year span, officers deployed the weapon more than 1,000 times, but in 95 percent of those cases the subject was unarmed. The study also found that more than 50 percent of the Taser incidents escalated from relatively common police calls, such as traffic stops, disturbance and nuisance complaints. In more than a third of the incidents, no crime was charged or prosecuted.

In October 2009, in a tacit admission of the inherent dangers of Tasers, Taser International began telling police agencies to avoid firing the devices at suspects' chests. In a revision of their usage manual, they write, "Should sudden cardiac arrest occur in a scenario involving a Taser discharge to the chest area, it would place the law enforcement agency, the officer, and Taser International in the difficult situation of trying to ascertain what role, if any, (the device) could have played.”

It was a tactic reminiscent of the tobacco industry putting warning labels on cigarette packs. The action does not change the harm of the product, but rather is intended to create a layer of insulation from civil action.

In June 2008, a jury in the U.S. District Court for the Northern District of California ordered Taser International to pay $6.2 million in damages to the family of Robert C. Heston. Heston, of Salinas, Calif., had died after being hit by Tasers by Salinas police officers. Shortly after the decision, Taser International stocks plummeted, hitting its lowest numbers in a year. The jury, however, did not fault the police department, finding that Taser International did not instruct the officers properly on how to use the weapon. Having lost a major civil action, and knowing that other lawsuits would follow, Taser International scrambled to fend off civil action by deploying a revised usage policy.

But it is impossible to create a safe policy for an inherently unsafe weapon, just as it is impossible for the tobacco industry to create a safe way to smoke cigarettes.

And criticism has even come from the law enforcement community itself. Ray Samuels, former Newark police chief, turned down the offer to bring Tasers into his city in 2005. In explaining his position, which he has gone on to share with other city administrations that are considering the weapon, he wrote, "What scared me about the weapon is that you can deploy it absolutely within the manufacturer's recommendations and there is still the possibility of an unintended reaction. I can't imagine a worse circumstance than to have a death attributed to a Taser in a situation that didn't justify lethal force."

The decision of the Ninth Circuit Court of Appeals should send a clear message to the police and the cities that they work for that civil action is now a reality every time the Taser is drawn.

Raj Jayadev is director of Silicon Valley Debug. Aram James is a retired Santa Clara County public defender and a co-founder of San Jose’s De-Bug Legal Advocacy Clinic.

Thursday, December 03, 2009

EDITORIAL: Taser trouble - stun guns are taking a toll

Salt Lake Tribune Editorial

The autopsy results are in. But, despite the definitive findings the verdict is still out on the weapon that killed Brian Cardall.

Cardall, a promising research scientist and Utah native, died from "ventricular fibrillation following conducted energy weapon deployment ... ." In other words, death by Taser.

Here's what happened. In June, Cardall, 32, was returning to Arizona after visiting Utah when he experienced a manic episode brought on by his bipolar disorder. He pulled his car to the side of the road, got out, removed his clothes, and began flagging down vehicles on State Road 59 outside Hurricane.

Cardall's wife gave him medication, called the police, informed the dispatcher of her husband's psychotic condition and the fact that it would take a while for the medicine to take effect. But Cardall ran out of time.

Just 42 seconds after Hurricane Chief of Police Lynn Excell and officer Ken Thompson arrived at the scene, Thompson claims, a confused Cardall, who refused to get on the ground as ordered, stepped toward the officers. Thompson fired his Taser, striking a naked and unarmed Cardall in the chest over the heart. When the Flagstaff resident attempted to rise, Thompson gave him a second jolt. Within minutes, Cardall was dead, one of about 350 Americans to die after a Taser deployment since 2001.

Had the incident occurred 20 years ago, before Tasers came on the market, Cardall, who weighed just 156 pounds, would have been physically taken to the ground and handcuffed. He may have suffered bumps and bruises, cuts and scrapes. The police officers would have risked same. But nobody would have died.

Cardall's family says the officer used excessive force, a claim rejected by investigators, who determined that Thompson adhered to both his department's use-of-force policy and Utah law. No charges were filed. And, because the policy and not the officer was at fault, none was deserved.

Thompson certainly didn't mean to kill Cardall. In fact, along with officers in 14,200 police, military and corrections agencies in 44 countries, Thompson had been taught that the Taser can prevent physical altercations that cause injury, and negate the need for deadly force. That it saves lives. As a result, Tasers have become the "nonlethal" weapon of choice in law enforcement circles. But that could change.

In the months since Cardall's death, Taser International, which manufactures the stun guns, lost a wrongful-death lawsuit, a first. A California jury determined that the company failed to adequately educate police about the risk of cardiac arrest from using the weapon.

Plus, the Arizona-based company recanted its long-standing advice to aim at center body mass, and advised police not to shoot suspects in the chest.

And, the American Medical Association determined that Tasers can do more harm than good. In a report issued the same month Cardall died, the AMA said "Tasers are used too frequently ... and may contribute to the death of suspects directly or indirectly." The group said more research is needed to determine if Tasers are safe for use on suspects in altered states, like Cardall.

The next move belongs to police departments, which should change their policies regarding Taser use. Tasers should be used sparingly, a weapon of next-to-last resort, until all of the evidence is in.

Monday, November 23, 2009

TASER International's 100th Lawsuit Dismissal Won on Summary Judgment

Comments received on this post as follows:

Notice the case was thrown out, "without prejudice", meaning that it can be re-filed in the future. And it was all "based on available evidence in 2003", a time when the company probably claimed it had no idea that their products could cause death.

The above comment is inaccurate. The case was dismissed with prejudice; summary judgment was granted; it cannot be refiled.

It is important to note that despite Taser's inference to the contrary, the Court said that the ruling was not inconsistent with any of the rulings in the prior Heston case where Taser lost. Specifically, here the Court did not rule against the Plaintiffs based on their theory of how Rosa died, but only as to the knowability of their theory at the time he died.


November 23, 2009
CNN

Landmark Ruling in U.S. District Court for the Northern District of California in the Ninth Circuit

SCOTTSDALE, Ariz., Nov. 23, 2009 (GLOBE NEWSWIRE) -- TASER International, Inc. (Nasdaq:TASR), a leading provider of technology solutions and the market leader in electronic control devices (ECDs), announced that on November 20, 2009, the United States District Court for the Northern District of California entered an order and judgment for TASER International in the arrest-related-death lawsuit entitled Rosa v. TASER International, et al. granting TASER International's motion for summary judgment. Plaintiffs were represented in the Rosa case by California attorneys: John C. Burton, Peter M. Williamson, John F. Baker, and Peter T. Cathcart. Plaintiffs filed their lawsuit in 2005, and aggressively litigated their case for 4 years. The medical examiner had determined cause of death was from the methamphetamine Mr. Rosa ingested.

The Court noted that "California courts require that plaintiffs present evidence of 'general recogni[tion] and prevailing best scientific and medical knowledge' to meet the 'known or knowable' element of a strict liability claim." In addition, the court noted that the "evidence is insufficient as a matter of law to raise a triable issue as to 'knowability' of the risk,... [and] insufficient to create a triable issue as to whether TASER should have known of the risk."

The Court also noted that "TASER has developed a comprehensive warning system in which every ECD sold or distributed is accompanied by a training CD/DVD and operating manual to be used by TASER-certified instructors," and that Defendant's expert Dr. Raymond Fish "unequivocally rejects the theory that ECDs on humans decrease respiration and cause dangerous acidosis."

In granting TASER's motion for summary judgment, the Court stated that TASER International's assertions "are well-taken" that there are no genuine issues of material fact with regard to whether, "the alleged propensity of ECDs to cause metabolic acidosis was known or knowable on December 30, 2003, when the ECDs in question were shipped from TASER to its distributor; [and]... TASER's warnings with respect to the dangers posed by application of its ECDs were adequate..."

"It is important to note that this case was brought by the same plaintiff's counsel, using fundamentally the same liability theory as the Heston case in 2008," and "it is ironic that this case is won in the same week as TASER filed its opening appellate brief in the 9th Circuit Court of Appeals in the Heston case," said Doug Klint, President and General Counsel of TASER International. "Studies published since the Heston trial have largely disproven the acidosis theory, demonstrating that the exertion effects associated with TASER(R) ECD discharges are lower than several other physical force tactics. We believe the findings from the court in this most recent case is an important landmark for both law enforcement and the Company. TASER International will continue to aggressively defend all litigation filed against the Company and will seek all recoverable costs from plaintiffs."

Saturday, November 21, 2009

The Taser Attorney

Woodland Hills, CA: California attorney Peter Williamson is fast becoming Taser International’s worst nightmare. Over the last decade and more, the makers of the controversial handheld electroshock gun have been the target of dozens of lawsuits, ranging from product liability to police misconduct and wrongful death. However, Williamson and his co-counsel John Burton are the first attorneys to obtain a favorable verdict on behalf of a plaintiff.

In a David and Goliath case suit against Taser International this September, a jury ordered to the company to pay $153,000 to the family of Robert Heston. Heston, who was high on methamphetamine at the time, died after police fired at him 25 times with taser-electroshocks in an attempt to subdue him.

The Heston jury found that Taser International failed to warn police about the potential cardiac arrest risks associated with the use of the weapon.

As many as 70 other taser victims have attempted to sue Taser International, but few, if any, even came to trial before the Heston case.

The Taser International legal team frequently employed the Daubert Challenge, which essentially gives a judge the power to determine who may or may not be considered an expert witness. Because there was so little scientific data available regarding tasers, the tactic successfully eliminated the vast majority of potential plaintiff experts.

Attorney Williamson says that Taser International, once apparently immune from civil suits, is beginning to show cracks in its once-impenetrable walls. He spent thousands of hours preparing for the Heston case.

“We are totally attuned to all the research that is coming out,” says Williamson. “I actually have my Google news alert set to ‘taser’. So everyday I get a compendium of stories from all over the country – every death case, every incident of taser firing so we really keep tabs on what is going on.”

Williamson now focuses the largest part of his practice on taser complaints. Since he began working on the Heston case in 2005 he has built a considerable and formidable body of knowledge on everything from ventricular defibrillation to metabolic acidosis. Perhaps most important of all, he has a rolodex full of expert contacts.

“I don’t want to sound immodest, and I really think we are at the forefront of this litigation,” says Williamson. “I know who most of the players are in this country. I know most of the scientists are. I know the medical doctors, I know the experts.”

Taser International called the Heston verdict a fluke and claimed that the jury’s decision was a sympathy vote. “That’s comical,” says Williamson. “This guy was high on methamphetamine and acting crazy. But obviously we didn’t think he should have been tasered 25 times.”

Peter Williamson is a name partner with the firm of Williamson & Krauss in Woodland Hills, California. He obtained his Bachelor’s Degree from Rutgers University and his Juris Doctor from Southwestern University School of Law in Los Angeles.

Sunday, November 01, 2009

Tasers: Deadly or useful devices?

November 1, 2009
Jerry Mitchell, Clarion Ledger

Hundreds of Americans, including several in Mississippi, have died after being shocked with high-voltage stun guns touted as a nonlethal way to subdue suspects.

But world-renowned pathologist Michael Baden of New York City warns these high-voltage devices "can be a deadly weapon - just like a gun."

Since 2001, more than 351 people have died after being shocked with stun guns, according to information gathered by Amnesty International. The group has called for these weapons to be restricted or suspended until further research can be done.

As recently as June, officials from Taser International, the largest manufacturer of these stun guns, declared the Taser incapable of causing death, saying just because the devices were used on people who later died doesn't prove the Tasers caused the deaths.

But earlier this month, Taser officials advised law enforcement officers for the first time to avoid shooting the weapons at a suspect's chest because of the controversy over whether they affect the heart.

The company has never said Tasers are risk-free, said Taser spokesman Steve Tuttle. "But we've found the Taser is the safer response to resistance when compared to traditional use of force, such as batons, nightsticks, punches and kicks."

Yet at least five people have died in Mississippi after law enforcement officers used Tasers on the suspects reportedly resisting arrest or causing a disturbance.

Tuttle notes in these and other such cases authorities have concluded the devices weren't to blame.

In a number of wrongful death lawsuits, pathologists testifying on behalf of Taser have said people died of "excited delirium" - a term popularized in the 1980s to explain sudden deaths associated with cocaine.

A 2006 report co-published by the Justice Department described this state as one of extreme excitement and agitation, hostility and exceptional strength, along with a life-threatening rise in body temperature.

Tuttle cited a case involving a man in Philadelphia who was naked and high when he was shocked with a Taser. The man later died. "He was overheating, overdosing on cocaine," he said.

But last year, Taser lost its first case at trial when a California jury ordered the company to pay the family of Robert Heston $1 million in actual damages and $5.2 million in punitive damages after Salinas police shocked him multiple times with the weapon on Feb. 20, 2005.

The jury cleared the officers of any liability and concluded Heston, who was high on meth, was 85 percent responsible for his own death. That means Taser will have to pay 15 percent of the $1 million but all the punitive damages.

Baden said to accept the Taser industry's contention these more than 351 deaths "are really the result of excited delirium that occurs independent of Taser use and coincidentally at the same time as Taser use requires the willing suspension of disbelief. Many of my colleagues do accept this contention. I do not."

Excited delirium isn't recognized by the medical community in general or the psychiatric community in particular, he said. "It is a diagnosis that remains limited to deaths in official custody."

He recently examined a case in which 21-year-old Baron Pikes was stunned by a Taser after he tried to run from police in Winnfield, La., in January 2008. Pikes' death was ruled a homicide, and then-officer Scott Nugent is charged with manslaughter.

Baden concluded Pikes' death "was directly caused by the cumulative effects of approximately nine 50,000-volt electroshocks from a conductive electric weapon administered during an approximately 30-minute time period after he had been handcuffed."

According to the coroner's report, Pikes stopped twitching after the seventh time he was shocked.

Winnfield police said Taser officials had told them multiple shocks didn't affect a person.

Tuttle said that while "Taser International stands behind the safety of its life-saving technology," there needs to be "clear use-of-force policies, stringent oversight and recurrent certified training."

Lamar County Sheriff Danny Rigel, who has equipped all 41 of his deputies with Tasers, said proper training is critical. "It's a tool. You don't just give a gun to an officer and say, 'Go fight crime.'"

Rigel keeps four Taser instructors on his staff.

Training includes getting shocked - something he said he also went through. "It lets you know what the effects are," Rigel said.

Tasers now record the time, date and duration of the use of the device, Tuttle said.

Mississippi has seen cases where authorities tortured people with stun guns.

In April, William and Jeffrey Rogers - a father and son who were Tippah County sheriff's deputies - went to federal prison for shocking inmate Jimmy Hunsucker Jr. repeatedly with a Taser.

Hunsucker, who had been arrested on a DUI charge in June 2007, had allegedly cursed and threatened deputies. Deputies used the Taser on him until he lost control of his bowels.

In another case in February 2006, 40-year-old suspect Jessie Lee Williams Jr. was beaten to death in the booking room of the Harrison County jail. Several burns caused by a Taser were found on his body, according to testimony.

Former jailer Ryan Teel is serving a life sentence in federal prison for charges related to Williams' killing.

Seven states have banned the weapons, but in Mississippi civilians can obtain one without a permit or background check.

"To the extent it has become a potentially deadly device, I think it's something the Legislature may look at placing restrictions on," said state Rep. Percy Watson, D-Hattiesburg.

Justice Department officials have warned against multiple shocks by the Taser but found "no conclusive medical evidence within the state of current research that indicates a high risk of serious injury or death from the direct effects of (Taser) exposure."

Tuttle pointed to several studies showing the use of Tasers reduced the number of the shootings by officers.

Rigel said he can vouch for the fact the devices save lives.

"I know of three different instances where we prevented 'suicide-by-cop,'" said Rigel, who took office in 2004. "We were able to take each subject into custody with no harm to him."

Tasers have reduced the number of brutality claims as well as workers' compensation claims, too, Rigel said, "because you don't have to fight people to take them into custody."

Tuesday, August 18, 2009

Shocking: Taser producer files suit against Inquiry recommendations

August 18, 2009
By Am Johal, rabble

Taser International seems to have a greater interest in moving product than it does in improving the safety of its devices or acknowledging the role of its patented devices in killing people. In its haste to file legal challenges, the company is trying to silence its critics and create its own regulatory policy regime.

The question is, will governments, courts and the international human rights system stand up to this rogue corporation?

In a bizarre, American-style legal and public relations intervention, Taser International filed a lawsuit last week against the recommendations of the Braidwood Inquiry.

Taser International is using hardball American public relations tactics to grow its company, despite clear evidence of human rights implications associated with use of their device. Much of this is happening with the full support of Canadian and American policing agencies. The Canadian media's failure to criticize Taser International on these matters effectively is a reflection of Canada's underdeveloped public sphere.

The 18-month inquiry, completed in July 2009, concluded that tasers can cause death in specific circumstances, particularly to those with underlying health conditions and when there are multiple uses of the weapon on the same person. The inquiry was initiated after the high profile death of Robert Dziekanski at the Vancouver Airport, where he was approached by four RCMP officers and tasered repeatedly.

On Friday, David Neave, an attorney for Taser International in Canada said, "We provided ... more than 170 studies, periodicals (and) reports with respect to the safety of the device and use-of-force questions. All of that information clearly indicates that when the device is used properly there is not cardiac effect. For reasons unknown to us, that information did not wind its way into the report."

According to Taser International, the taser is used by 350,000 police officers in over 12,750 offices in 45 countries. The weapon has been deployed in the field approximately 547,000 times. Another 680,000 human volunteers have been exposed to the taser, largely during police training.

Justice Braidwood and the inquiry wrote a 556-page report over an 18-month period. For the manufacturer of conducted energy weapons to conclude that certain information was not included is nothing more than a public relations intervention.

By using American-style legal intervention in Canada over delicate public policy matters, Taser International is pursuing an offensive strategy that dehumanizes the victims -- those who have died as a result of the weapon being approved without rigorous, independent studies to verify its safety. Taser International, by using legal maneuvers, is also attempting to place a chill on critics of the device.

Taser International recently announced the release of a new model of taser that can fire multiple shots even though multiple uses have been implicated in deaths. Taser International has also released personal tasers in the United States that can be bought in hot pink or leopard print. In Canada, the taser is a prohibited weapon, but is unregulated and sold on the retail market in the U.S.

In June 2008, Taser International lost its first product liability claim in the United States. Taser was forced to pay $6.2 million related to the death of a California man who was hit multiple times by police.

At the time, Doug Klint, vice president and general counsel of Taser International, said, "Certainly, this was a tragedy for the [Robert Heston] family as well as for the officers involved. We however do not feel the verdict is supported by the facts including the testimony of the world-class experts who testified on our behalf with scientific and medical evidence. Our commitment to continue to defend our life-saving products and to support law enforcement remains unchanged."

Since 2001, there have been over 300 deaths in the U.S. associated with taser use and 25 in Canada. A significant number of those deaths involved either prolonged use of the taser or multiple uses. In over 20 of these cases, coroners have listed tasers as a contributing factor in the deaths. Only about 10 per cent of the deaths involved individuals who were carrying weapons.

Last year, Dalia Hashad, director of Amnesty International's domestic human rights program said, "Science paid for by Taser International should not be trusted. There is an open scientific question on the safety of this device. They are an unknown quantity in many areas and need to be studied further before they are unleashed on the public. We have to start talking about whether force is necessary or not in specific questions, rather than whether a gun or a Taser should be deployed."

An RCMP led study found that 'usage creep' of the device was widespread and altered its process for using the device higher up its 'use of force' spectrum.

Justice Braidwood was appointed the sole commissioner under B.C.'s Public Inquiry Act. The Braidwood Inquiry found that if tasers do contribute to death, the most likely cause is ventricular fibrillation likely caused by the weapon's electrical current leading to "a chaotic rhythm of the heart's two ventricles." In this state, the heart can beat 200-300 beats per minute, the individual can lose consciousness in 5-10 minutes and die within 10 minutes.

It is also possible that the taser can induce spasms in the muscles of respiration that can interfere with an individual's ability to breathe.

There are still outstanding questions and a lack of evidence to prove that tasers are safe weapons. The hundreds of people who have died after being tasered around North America should give obvious cause for concern.

Unfortunately, for some corporations like Taser International, the bottom line has a greater value than human rights.

Most importantly, the legal action by Taser International should not be used as a pretext to prolong the implementation of recommendations related to taser use, both provincially and nationally. Nor should it be used by policing agencies to advance a policy agenda on tasers that does not meet the test of the public interest.

Am Johal is a rabble columnist and the founder and Chair of the Impact on Communities Coalition.

Saturday, February 07, 2009

Lawsuit pushes some to question use of tasers

February 7, 2009
By Rebecca Catalanello, St. Petersburg Times

Tasers are getting a second look by some law enforcement agencies that have come to rely on the stun guns as an alternative to more lethal force, according to a federal judge ruling on a California case.

But Hillsborough deputies and Tampa police say they remain convinced of the instrument's merits despite the questions raised in the lawsuit about risks associated with Taser.

"From our perspective, it appears that Taser has reduced injuries and saved lives," said Tampa Police Department spokeswoman Andrea Davis.

Last week, U.S. District Judge James Ware ordered Taser International to pay $1.4 million in attorney fees to the family of a man who died after being shocked several times. The judge noted that the case is causing officers around the globe to rethink how they use the weapon.

Robert C. Heston died in June 2005 after being jolted repeatedly by Salinas, Calif., police during an arrest. Last year, a jury in the case handed Taser its first product liability lawsuit defeat, ruling that the company did not do enough to warn officers of the risks associated with the gun.

"The notoriety of Plaintiff's first-of-its kind verdict, in some circumstances, has prompted a number of TASER customers and prospective customers to consider the risk of repeated and prolonged Taser electric charges on individuals in an excited or delirious state," Ware wrote in the order, signed Jan. 30.

In Hillsborough County, where a man died last year after being shocked by a Taser three times, sheriff's spokeswoman Debbie Carter said the California case so far has had no effect on how deputies are trained to use Tasers.

Roney Wilson, 46, died Sept. 11, after deputies shocked him three times. Wilson had barricaded himself in his mother's truck in Plant City and smashed out the windshield when his family called 911 for help.

A medical examiner on Wednesday said Wilson's cause of death was "agitated delirium," a controversial diagnosis frequently associated with Taser-involved deaths. But Dr. Leszek Chrostowski couldn't say what role the Taser played.

In the California case, a jury concluded that repeated electrical shocks from a Taser caused so much acid to build up in Heston's body it sparked cardiac arrest.

Taser International should have known about the danger, the jury said, and warned officers.

Asked for response to Ware's decision, company spokesman Steve Tuttle sent this e-mail: "Our insurance company has indicated that it will appeal the latest ruling concerning the attorney's fees."

The judge noted in his order that Taser still hasn't adopted a warning that addresses the risks of metabolic acidosis.

Peter Williamson, the attorney for Heston's family, said the case makes it clear law enforcement should not rely solely on the information about Tasers provided by its publicly traded Arizona manufacturer.

"You have to take what Taser says with a grain of salt because they filter everything through a very specific lens," Williamson said.

Though the jury's Heston verdict stands, a judge threw out its $5.2 million award in punitive damages in October. The company issued a press release then saying it would keep pursuing other legal channels in the Heston verdict, including an appeal.

In his most recent order, Judge Ware noted that police in Australia cited the Heston case in its move to develop policies on how to handle people showing characteristics associated with "excited delirium."

And Taser is being reconsidered in other places.

Some police agencies in Canada pulled the weapon off the street and ordered testing after a Canadian Broadcasting Corporation investigation aired in September showing some Taser models delivered more volts than the manufacturer said was possible.

In Las Vegas, the Police Department recently ended its practice of shocking officers during Taser training after getting complaints of injuries. Three employees filed lawsuits, and the agency's former sheriff stated in a court document that he believes Taser downplayed the risk of the guns in order to sell them to police.

Tampa Police Department attorneys are aware of the California case, but like Hillsborough, they expect no changes in how officers use the gun, spokeswoman Davis said. The agency's use of the Taser since 2005 has lowered the number of police shootings from 18 between 2002 and 2004 to 13 since 2006, she said.

Both Hillsborough and Tampa have written policies that bar officers from "repeatedly drive stunning" subjects in most cases. That means they shouldn't press the gun directly against a person's skin repeatedly.

In a preliminary review of the Wilson death, sheriff's administrators found no fault with the deputies' actions after they shocked him three times.

Chrostowski, the medical examiner, said Wednesday that Wilson was in a state of agitated delirium before deputies arrived. He said Wilson's stress at being detained while in that physical state contributed to his death.

Williamson, the Heston family attorney, said the key is how the Taser is used on a person in that state. One shock of the Taser should be enough, he said.

"We don't have a problem with the Taser being used," Williamson said, "but not multiple applications."

Wilson's family has retained attorney Mary Jo Meives of Hollywood. She declined comment, pending her review of the medical examiner's report.

Thursday, February 05, 2009

Judge awards $1.4M to lawyers in Taser lawsuit

February 5, 2009
The Associated Press

SAN JOSE, Calif — A federal judge has ordered Taser International to pay $1.4 million to lawyers for the family of a Salinas man who died after police officers repeatedly shocked him with stun guns.

U.S. District Court Judge James Ware last week ordered the Scottsdale, Ariz. company liable for attorneys fees accrued by the family of 40-year-old Robert Heston. In June, a jury held Taser responsible for Heston's 2005 death and awarded his family $6 million.

Jurors found that Taser did not inform officers the device could be harmful if used repeatedly. Heston died a day after officers used Taser devices as many as 30 times while trying to subdue him.

An autopsy showed that Heston died from methamphetamine intoxication, an enlarged heart and the Taser shocks.

Tuesday, December 23, 2008

Taser death: Taser International guilty as charged

December 23, 2008
By Jane Mundy, lawyersandsettlements.com

Salinas, CA: Robert Heston senior won his lawsuit against Taser International, but at a terrible cost. "I have a picture of my son under the Christmas tree and I miss him," says Mr. Heston, whose son was Tasered to death in 2005. "It is hard on all of us this time of year—we are a close family. You always think you are going first but when the kids go it takes a toll on you." And Mr. Heston has been in the hospital with heart problems on several occasions--he thinks it stems from anxiety over his son's death.

Mr. Heston remembers vividly that horrific day when his son—also named Robert—was Tasered repeatedly; Mr. Heston says his son was tasered about 30 times. "I guess the police kept doing it because they thought they didn't have full control over Robert—they couldn't handcuff him. But Robert couldn't put his hands up because he couldn't move." Mr. Heston explains that the police officers tried to pry Robert's hands from under his torso to handcuff him but he was paralyzed—so they Tasered him some more!

"The cops got off scott free," says Mr. Heston. "We lost the case against the cops but won against Taser. Policies need to be changed about Tasers; when they first came out the police had no idea what they could do to people because it was put on the market by Taser International as non-lethal, but we all know that isn't true now, after the fact."

"Losing Robert was devastating," says Mr. Heston's son-in-law, Kirk Kasner. "Since Robert's death I have done a fair amount of research and in my opinion, most law enforcement is not trained sufficiently—police officers get far more firearms training than they do Taser training. They have a preconceived notion the Taser is safe; they think Tasering someone repeatedly is harmless."

Kasner believes Taser International has downplayed the hazards and he questions their studies, mainly because a new product should be tested to failure—i.e., under what circumstances will it fail and how does it fail, not by testing a product to prove it is safe, as the weapons company has done.

The Court Case

Kasner says the case against Taser International was successful because the Heston family had exceptionally competent counsel—attorneys John Burton and Peter Williamson--and the jury pool was another reason. The San Jose area is a technology hub and the jurors had a good grasp of the technology—initially there were 3 engineers. A lot of the case concerned the product liability issues. "When it came right down to it, Taser had not been forthcoming with the true safety concerns of the weapon and they downplayed it to the police officers," Kasner explains. "And I believe if law enforcement had greater respect for the equipment and were more conservative with their applications, there would be fewer fatalities."

At the same time, Kasner believes Tasers do have a place within law enforcement; in the right setting there is potential. "But police officers are trained based on Taser's information and if that information is false, the snowball runs downhill," he says. "Taser is the root of training and policy and the police departments use their policies."

But their policies left the company open on liability issues and that is the main reason why the Heston family won the case.

"Taser claimed you could shoot each other with a Taser all day long but my brother-in-law died before the last discharge from the Taser was cycled (started and stopped)," says Kasner. "The trigger was pulled, my brother-in-law was shot with another 50,000 volts and it is possible, given that 3 officers were firing, that he was shot with 150,000 volts at the same time. Our lawyers have a chart that shows the cycling of the weapons which clearly shows the minute the first weapon was discharged and the last minute, and the sequence in the timeline of the event.

I can't find any fault in the jury, even though they acquitted the police officers; they stepped in and represented the community. But they found Taser International guilty.

What bothered me most throughout the proceedings was that there has been more response form other countries on this Taser issue than there has been from the US and our legislature. Look at the Canadian media—they are pursuing Taser aggressively and there are public inquiries. In the US, I think Taser has sold its story so well that we believe it. And many Americans see people who are Tasered to death as addicts and drunks—they are invisible to society. The only people who give a damn are the family members.

Taser has developed this Teflon image that nothing bad is going to stick to them—they sue coroners and medical examiners, they sue researchers that make findings contrary to their claims; they do personal litigation against individuals.

If not for my father-in-law pursuing this lawsuit, eventually somebody else would beat Taser. All he wants is justice. Nobody apologized from what happened that day, except at the end of the court case. The police officers gave condolences, but Taser said 'obviously we disagree with the ruling'…"

Friday, December 05, 2008

Zapping Taser - A SURPRISE PLAINTIFFS WIN HIGHLIGHTS A SCIENTIFIC MYSTERY: WHY DO SOME PEOPLE DIE AFTER BEING SHOCKED REPEATEDLY WITH STUN GUNS?

December 2008 Issue of California Lawyer

By Shahien Nasiripour and the Center for Investigative Reporting

Robert and Betty Lou Heston of Salinas were used to violent outbursts from their 40-year-old son. Robert C. Heston had assaulted both of his parents from time to time, once shoving his father to the ground, and in another incident hitting his mother in the face with such force she developed a black eye. His parents attributed the behavior to his addiction to methamphetamines.

On February 19, 2005, Heston, high on meth, physically attacked his then 66-year-old father, knocking him over and dragging him around by one arm. He then punched holes in the ceiling, claiming there was a gunman in the attic. After his father locked him out of their house, he broke a window to get back in. The senior Heston called 911. He thought authorities would lock up his son for a short while, but at least he'd be away from drugs.

Salinas police officers came and left without taking any action. Robert C. Heston wasn't breaking any laws, they said. But the domestic disturbance escalated, and Heston's parents soon called 911 again, this time begging for help. When officers arrived a second time, Heston attacked them, pulling a live outdoor lamp from the wall and throwing it in their direction. In response, five officers shot Heston with Taser stun guns, which are designed for each discharge to deliver a 50,000-volt shock for five seconds. He fell down. During one 74-second span Heston was shocked 25 times, his family says; for much of that time he was lying facedown in the living room. He soon began turning blue, and officers saw that he had no vital signs. Heston was eventually revived and taken to a Salinas hospital, but serious damage had already been done: His heart had stopped beating for at least 13 minutes. He died the next day when disconnected from life support. The medical examiner who performed the autopsy attributed Heston's death to cardiac arrest due to his "agitated state associated with methamphetamine intoxication and applications of Taser."

In the months that followed, Heston's parents expected an apology from police, but it never came. Instead, they received an unsolicited call from Evelyn Rosa, the mother of a Seaside man who had died in 2004 after a similar scuffle with police involving Tasers. Rosa asked the Hestons if they needed a good attorney, and she passed along the numbers of John Burton and Peter M. Williamson, two Southern California lawyers who were representing the Rosa family. Within weeks the two lawyers were representing the Hestons as well.

Last June a San Jose federal jury found that Taser International, manufacturer of the Taser stun gun, was 15 percent liable for Heston's death (Heston v. City of Salinas, No. C 05-03658 (N.D. Cal. 2008)). The jury determined that Taser International knew or should have known that "prolonged exposure" to its stun gun could lead to cardiac arrest, and also that the company had failed to warn Salinas police of that risk. The failure to warn, it found, was a "substantial factor" in causing the police officers to administer a prolonged shock. The jury awarded the Hestons $1 million in wrongful death damages, and it assessed $5.2 million in punitive damages--later struck as a matter of law--against Taser International. The verdict was the company's first courtroom loss, coming after 70 dismissals and settlements.

"It was only a matter of time before they'd lose," Burton says. "If it wasn't us, it would be someone else."

Soon plaintiffs attorneys in law offices around the country were asking how two small-firm practitioners could win a jury verdict against a company that for years had proved invincible to product liability challenges. How had Burton and Williamson broken through Taser International's considerable scientific and legal defenses?

Chief among those defenses had been the company's explanation for deaths associated with stun-gun shocks, which Taser attributes to a phenomenon it promotes as "excited delirium." Burton and Williamson decided to attack the company's theory with their own experts. But to get their experts before a jury, they first had to convince the court that alternative causation theories for Taser-related deaths couldn't be dismissed as junk science.

For 25 years sole practitioner Burton, now 55, has made a practice out of police-misconduct and excessive-force litigation. His law office in a converted Pasadena home consists of himself, a receptionist, a paralegal, and his wife, Sandy. Burton has close-cropped gray hair and a thick goatee, and he is apt to wear Hawaiian shirts to the office. He sports tattoos, speaks directly, and is prone to swearing.

Williamson, 54, is more reserved, choosing his words carefully. His wins include six- and seven-figure settlements in police-misconduct cases, among them a $2 million verdict he and Burton secured in a police shooting case against Ventura County. Williamson is one-half of Williamson & Krauss, a two-person law office in Woodland Hills with limited support staff. In the courtroom, the pair complement each other--the gruff Burton and the dispassionate Williamson.

"We're true believers in the cause," says Williamson, who knew even as a teenager he wanted to practice law, after reading a book by F. Lee Bailey. "It's a righteous way to earn a living. We're not chasing ambulances; we're really doing something that's important."

So is Taser International, say the company and its supporters in law enforcement. Founded in 1993 by brothers Rick and Thomas Smith, the Scottsdale, Arizona-based company manufactures stun guns, intended to be nonlethal alternatives to firearms. The brand name is derived from a loose acronym for the title of a 1911 adventure novel, Tom Swift and His Electric Rifle.

In its first year of sales, Taser became the largest stun-gun manufacturer in the United States, according to court documents filed in Heston. The company's most popular products, the pistol-shaped M26 and X26, are used by more than 13,000 law enforcement, correctional, and military agencies around the world. (Taser products have been brought to market in at least 64 countries.) Taser also manufactures a shotgun model for use in crowd control, and a consumer model for self-defense that comes in various colors.

The Taser M26 and X26 produce electrical shocks that are delivered either through firing darts that remain connected to the gun with insulated wires, or by pressing the stun gun against the subject's body. The stun guns have a range up to 35 feet. When the darts attach to skin or clothing, they create a circuit through which electrical current passes at 19 pulses per second, essentially causing a person to lose body control. According to company cofounder Rick Smith, "[I]t is not the voltage which is dangerous, but rather the current [amperage] that measures both effectiveness and potential danger."

According to Taser's press kit, each shock results in an "immediate loss of the person's neuromuscular control and the ability to perform coordinated action for the duration of the impulse." The shock can be prolonged by either holding down the trigger or pulling it repeatedly. Taser's medical experts contend that such shocks do not affect the heart or other vital organs.

According to the company, its products have saved thousands of lives and reduced injuries to both officers and suspects. As a result, the company claims it has saved law enforcement agencies millions of dollars in workers' compensation claims and settlements arising from excessive-force allegations.

"We've revolutionized law enforcement, and personal safety as well," says Taser spokesperson Steve Tuttle, adding that more than 4,700 agencies across the country now arm all their patrol officers with Tasers.

By all accounts, Tasers are extremely popular with police departments. Company statistics show the stun guns are used about 490 times per day--incapacitating, over the years, more than 1.3 million people. The Cincinnati chief of police, in a 2005 internal newsletter, called Tasers the "only instrument to revolutionize an aspect of policing in the past 35 years."

But there's a serious downside. Since 2001, Amnesty International has recorded more than 340 deaths in North America following police use of Tasers. The United Nations Committee Against Torture last year declared the use of Tasers a form of torture that can kill. The government of British Columbia is currently holding a public inquiry into the safety of the devices, prompted by the Taser-related death of a Polish man at Vancouver International Airport in 2007.

In the past five years, more than 110 lawsuits have been filed against Taser International alleging wrongful death or personal injury. At least 10 of those involving police officers injured during Taser training were settled by the company, according to a 2007 Bloomberg News report; Taser refuses to disclose the precise number of suits it has settled. About 40 product liability suits are pending, Tuttle said in November.

The company has responded aggressively to the accusations. In 2005 it sued an electrical engineer who authored a peer-reviewed study that concluded Taser shocks are powerful enough to kill. That same year, it sued Gannett Co., parent company of USA Today and the Arizona Republic, Taser International's hometown paper, for libel (the suits were dismissed). In May the company persuaded an Ohio judge to order a county medical examiner to remove Taser's name from three autopsies that found the stun gun had contributed to the subjects' deaths. A similar suit against a medical examiner is pending in Indiana.

"Some medical examiners did not understand ... the effect of electricity delivered into the human body and were not aware of the extensive medical studies confirming the safety of the Taser device," says Douglas Klint, executive vice president and general counsel of Taser International. "This ignorance resulted in autopsy errors" mistakenly linking Taser shocks to injuries and deaths.

According to Klint, most of the product liability suits naming the company are part of litigation filed against law enforcement agencies for excessive use of force. Specifically, he says, the suits allege a failure to warn that serious injury or death may result from Taser shocks. But as it turns out, the question of what Taser shocks actually do to the human body is a matter of great legal and medical controversy.

Taser's own experts rely on a theory that the deaths and injuries result not from the shocks but from a state of "excited delirium" in the subjects, a controversial and much-disputed conclusion. Excited delirium is described in a 2006 report on Taser policy and training that was copublished by the Police Executive Research Forum and the U.S. Department of Justice as a "state of extreme mental and physiological excitement, characterized by extreme agitation, hyperthermia, epiphoria, hostility, exceptional strength, and endurance without fatigue."

Klint explains, "Plaintiffs confuse temporal use of the Taser device with causation for subsequent unrelated injuries or death. The fact that a Taser device was used on someone who later died is mistakenly taken as evidence of causation."

The excited-delirium syndrome was first described in 1849 by Dr. Luther Bell, who was trying to diagnose what provoked the otherwise-unexplainable sudden deaths of patients. It gained popularity during the cocaine epidemic of the 1980s, when medical examiners around the country were trying to explain sudden deaths associated with cocaine and crack-cocaine abuse.

The American Medical Association, however, does not recognize excited delirium. Nor is the phenomenon listed in the Diagnostic and Statistical Manual of Mental Disorders--the chief psychiatric reference used by U.S. mental health professionals--or in the International Classification of Diseases manual.

Critics contend the syndrome is used by police agencies to cover up deaths caused by the use of excessive force. Indeed, because excited delirium is not recognized by the medical community, the International Association of Chiefs of Police advises police departments to use other, more specific terms to explain a subject's in-custody death.

But excited delirium remains central to Taser International's public relations message, and to its defense strategy in court. The company sends out pamphlets to medical examiners and coroners explaining the condition, and the Institute for the Prevention of In-Custody Deaths offers training courses, some of them sponsored by Taser, to help law enforcement officers recognize its symptoms.

Burton and Williamson's toughest challenge in the Heston case was to counter Taser's excited-delirium theory. The company had scores of medical experts who had produced reports and testified that its devices could not cause a person's death. The attorneys had to offer a new theory-and locate experts who could survive Taser's anticipated challenge to the admissibility of their opinions under Daubert v. Merrell Dow Pharms., Inc. (509 U.S. 579 (1993)), the U.S. Supreme Court case that raised the scientific standards for admissible testimony. It was an ambitious undertaking, and a gamble.

"We talked for months about this," Williamson says. "Our simplification of the cause of death was key. If we got bogged down in minutia, we'd confuse the jury. We'd lose the case." First, though, they had to get their theory into court.

Prior to the Heston verdict, Taser had successfully argued that plaintiffs' experts weren't qualified to opine on Taser-related deaths because none of them had published any peer-reviewed studies on Taser stun guns. Critics countered that all the significant research had been funded by Taser. In fact, the company has been so successful at bringing Daubert challenges that in the past five years only one other wrongful death case against it has reached a jury (Taser won).

"We file Daubert motions when appropriate against plaintiffs' experts and move for summary judgment whenever possible," says Klint. "We will appeal any adverse judgment. It is very expensive and very difficult to sue Taser."

But Heston played out differently. At a pretrial hearing last April on Taser's motion to exclude the plaintiffs' experts, the company argued that Heston had been in the throes of excited delirium when he died. No fewer than ten expert reports on Heston's death offered by Taser had concluded that the cause was "excited delirium brought on by his acute and chronic methamphetamine usage," according to testimony by Mark W. Kroll, the head of Taser's Scientific and Medical Advisory Board, who is also a company board member and a paid company consultant.

However, the plaintiffs' expert, Dr. Mark R. Myers, a Pasadena-based cardiac electrophysiologist, was prepared to testify that Taser's stun guns produced Heston's death under several alternative causation theories, including vasovagal reaction, metabolic acidosis, and respiratory acidosis.

Taser's lead attorney--Mildred K. O'Linn, a partner at Manning & Marder, Kass, Ellrod, Ramirez in Los Angeles--petitioned U.S. District Judge James Ware to either exclude the opinions and testimony or conduct a formal Daubert hearing. O'Linn argued that Myers lacked the requisite qualifications and experience, and that his causation theories were not supported by scientific evidence. Without Myers's testimony, O'Linn told the court, "Taser['s defense] is done, because plaintiffs' counsel has simply failed to produce anyone who could testify as to causation in this matter."

Michael Brave, Taser's national litigation counsel, added that Myers wasn't qualified to testify because he had "stated in his deposition that he was not an expert in the field of electronic control devices, Taser devices, or the effects of Taser devices." Indeed, Myers had based his conclusions in part on published studies of the effects of Tasers on pigs.

O'Linn argued that citing animal research failed to pass muster under Daubert. "There is direct legal authority that says animal studies do not directly correlate to human effects," she told Judge Ware.

"That's something you can tell the jury about," Ware responded. "It does seem to me that many breakthroughs in science have been based upon animal studies, and so I won't reject the idea that animal studies can inform opinion with respect to the effect in human beings, especially since I know that pig studies are regularly used for studies of the effect of the devices in human beings."

After denying O'Linn's motion, Ware told her, "You can criticize [Myers] up one side and down the other, and call in contrary witnesses to show the unreliability of his opinion. But it does seem to me that if he has a basis, weak though it may be, I have to allow him to express it even though it's tantamount to saying you can get brain tumors from standing under a tree--and I'm not sure that you're in that far-fetched an area."

The causation theory Burton and Williamson eventually presented to the jury focused on the intense muscle contractions produced by Taser shocks. Muscle contractions produce lactic acid; that's why Taser shocks can be dangerous when applied repeatedly. Because subjects don't have control over those muscle contractions, they can't slow down their movements or increase oxygen intake--as an athlete might--to counter the buildup of lactic acid. Too much lactic acid in the body produces acidosis, and critical proteins start to break down. Cardiac arrest can result. Untreated, it kills within minutes.

Heston was shocked 25 times in a span of 74 seconds, the plaintiffs contended. Muscle contractions from those repeated 50,000-volt discharges, they argued, led to his cardiac arrest. Dr. Myers noted in correspondence to Burton that Heston's blood readings showed severe metabolic acidosis. "Our theory was the secret to our success," Burton says. "Everybody understands the concept. We distilled something that was very complex into something that was very simple."

Taser International contended that Myers's acidosis theory was simply wrong, and "wholly lacking in scientific support and reliability." It countered his responses to questions during deposition with the opinions of its own expert, Kroll--an electrical engineer with patents for numerous electrical medical devices but no medical degree.

At trial, the company cited studies showing that people being shocked by a Taser continue to breathe. Brave says that subjects actually breathe heavier and deeper, which, he contends, counters any acid buildup. "A Taser discharge helps respiration," Brave says, citing several company-funded studies. "Exercise is far more harmful to you."

In court Burton and Williamson argued that because the studies Taser cited most had been paid for by the company, the medical experts who conducted those studies--and their findings--were tainted.

Taser originally told Ware that it would present testimony by 15 experts from around the country. Burton and Williamson objected that the plaintiffs were being asked to bear unreasonable costs to depose all of those experts. So Ware ordered Taser to pay the plaintiffs' costs for deposition.

Ultimately, neither side was able to conclusively show what causes Taser-related deaths.

Dr. Zian H. Tseng, a cardiac electrophysiologist and professor at UC San Francisco Medical Center, conducted his own Taser study, which is awaiting publication in a peer-reviewed medical journal. "It's difficult to prove definitively that the Taser was a direct cause of death," says Tseng. "But there's a lethal risk--a small risk, but a lethal one. They should be used cautiously and judiciously. Without that knowledge [of the potential risks], they're going to be used irresponsibly."

"Until there's been enough testing of Taser applications on heart rhythm, opinions are speculative," says Keenan Nix, a plaintiffs attorney at the Atlanta office of Morgan & Morgan, who has a pending case against a hospital following the death of a man shocked repeatedly with a Taser. "There is a temporal link. When you have folks dropping like flies within moments of a Taser application, there is a commonsense causal connection. What we're finding is that the number of experiments regarding the connection between the Taser and heart rhythm is sparse." Nix recently dismissed Taser as a defendant in what he described as a "business decision."

Still, Myers is convinced there's a causal link in the Heston case. "All people with methamphetamine intoxication do not die of the methamphetamine or of 'excited delirium,' " he wrote in his review of Taser's experts. "In the [Heston] case the only significant adverse physical stimulus was from the Taser applications. Are we really expected to believe that the Taser has no physiologic effects when delivered in the manner of this case? If so, then if the police had simply waited outside for 5 to 10 minutes, this man would have died spontaneously. I could not explain such a death."

Burton and Williamson were able to offer the jury alternative causation theories to explain Heston's death. But this was a product liability suit: Its two principal causes of action were negligence, and strict liability for injuries caused by defective and dangerous products. The suit alleged that Taser International had failed to warn the city of Salinas of the dangers associated with using its stun guns. A manufacturer's risk of being sued is substantially reduced or eliminated if it presents such warnings, says J. David Prince, a professor at William Mitchell College of Law in St. Paul, Minnesota, and coauthor of the Products Liability Prof Blog. But the warnings must be strong enough to effectively communicate the dangers associated with use of the product.

In fact, as lawsuits have accumulated, Taser's product warnings have shifted noticeably over the years. According to Burton and Williamson, Taser first warned of dangers associated with multiple, prolonged exposures in a PowerPoint presentation shipped to law enforcement customers in January 2005--about five years after introduction of the M26 model that was fired at Heston. The warning was on slide 108 of a 174-slide presentation. The Heston incident occurred the following month. But the city of Salinas argued in court filings that its police officers were never advised that "multiple Taser deployments or multiple cycling would create a health risk." The Salinas Police Department first purchased Tasers in 2003.

Burton and Williamson also contended that Taser never warned officers that multiple Taser shocks could lead to acidosis, or to cardiac arrest. Four months after Heston's death, however, Taser released a training bulletin that cautioned: "Repeated, prolonged, and/or continuous exposure(s) to the Taser electrical discharge may cause strong muscle contractions that may impair breathing and respiration. ... Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable ... particularly when dealing with persons showing symptoms of excited delirium ... [who] are at significant and potentially fatal health risks from further prolonged exertion and/or impaired breathing."

As a public relations matter, the additional warnings backfired--news reports focused on the phrase "potentially fatal health risks." Five weeks later, Taser International President Thomas Smith issued a clarification: "The bulletin never indicated that our technology has caused death; rather the media has somehow managed to distort and misrepresent this commonsense guideline into a sensational and misleading story that could have serious adverse consequences on the safety of law enforcement officers and citizens."

Professor Prince says that Taser's revised training bulletin probably would shield the company from subsequent failure-to-warn suits, but also that the company could still be on the hook for incidents that occurred before publication--such as the one involving Heston.

In addition, Prince says, changes in Taser's marketing--which parallel revisions in its product warnings--may have created even more legal risk for the company. In a 2002 report to the Securities and Exchange Commission, for instance, Taser branded itself a manufacturer of "less lethal" weapons. The "less lethal" designation continued until April 2004, when Taser began describing its products as "non-lethal" weapons. The next year, the Department of Defense issued a report that classified both the M26 and X26 stun guns as "non-lethal," which in DOD terminology means they're not intended to be fatal.

In September 2005 the Arizona attorney general's office, which had been investigating Taser's safety claims, reached an agreement with the company limiting its use of the word non-lethal; the company agreed to qualify the term by including the Defense Department's definition. That same month, Taser announced the results from another study--which it partly funded--that indicated people subjected to Taser shocks not only continued to breathe but had higher breathing rates and volumes during the exposure. The announcement dropped all reference to "non-lethal." Taser now describes its stun guns as "generally recognized as a safer alternative to other uses of force."

To the ACLU of Northern California, Taser's semantic changes appeared to be calculated. "When Taser labels its weapon non-lethal," the organization contended in a 2005 report, "it is merely saying that the stun gun is less lethal than a firearm, not that it is non-lethal as commonly understood by law enforcement or the general public."

Taser CEO Rick Smith, however, asserts that less lethal and non-lethal are synonymous. "There was no specific policy decision [to change the language]," he claimed in a July 2005 deposition in another case. "We were not recharacterizing ... the weapon, but rather adopting the standardized Department of Defense definition in using non-lethal."

Prince comments, "It's a mixed message. As a product manufacturer, I could later make the argument that, 'Yes, I showed these ads, but I warned later on.' There's at least a jury question there, and I don't know that I'd want a jury to decide that."

This past April, Taser rescinded the warning against prolonged exposures in its 2005 training bulletin, citing new medical and scientific evidence that its stun guns do not impair breathing, affect the heart, or cause ventricular fibrillation, and that exposures up to 15 seconds do not cause metabolic acidosis.

The controversy over science, warnings, and marketing coalesced in Heston. Taser contended that it didn't have to warn law enforcement agencies that its weapons might cause death because no reputable scientific or medical evidence indicated that they could--and no jury had found otherwise. The company also insisted there was no significance to changes in the wording of its training bulletins and marketing kits.

The Heston jury disagreed. After two and a half days of deliberation, it returned a defense verdict in favor of the Salinas Police Department and a plaintiffs verdict against Taser International. The jury found that multiple Taser shocks can cause acidosis, and that acidosis can lead to fatal cardiac arrest. It also concluded that Taser had failed to warn police of this possibility. The jury awarded compensatory damages of $21,000 to Heston's estate and wrongful death damages of $1 million to his parents, apportioning 85 percent of the fault of Robert C. Heston's death to his behavior and 15 percent to Taser for negligently failing to warn about the risks of its M26 stun gun. Finally, it assessed $5.2 million in punitive damages against Taser International.

More than anything else, it was the failure to issue adequate warnings that tripped up the company in court, says Robert Haslam, a Texas lawyer and chair of the Taser Litigation Group at the American Association for Justice in Washington, D.C. "Taser absolutely created its own problems," he argues. "If they [had] warned properly, it would have changed the situation dramatically. Taser would've relieved a lot of its present problems."

For Burton and Williamson, the victory in Heston didn't come cheap. The pair put in approximately 2,500 hours on the case and accrued out-of-pocket expenses of $200,000, according to their fee application.

But the plaintiffs bar was encouraged. "My God, my confidence went up!" says Waukeen Q. McCoy, principal at McCoy & Associates in San Francisco, who has a pending wrongful death case against Taser. "It was very helpful. I think Taser thought it was invincible before this verdict."

"[The plaintiffs' team] had really good discovery, and they were good at getting expert witnesses to debunk the information Taser puts out," says John L. Burris, a sole practitioner in Oakland who has settled at least two Taser-related cases with California cities. "Taser has done a pretty good job of co-opting the experts," he adds.

The defense bar also took notice. "There's blood in the water," says Ted Frank, an attorney and tort reform advocate at the American Enterprise Institute in Washington, D.C. "The plaintiffs bar has targeted Taser. They were a little deterred before, but now they're going to attack. Taser has a tough decision to make: Does it fight or settle? The danger is you can get a feeding frenzy when you settle."

Although Taser took the brunt of the Heston verdict, that may have been by its own design. In a bulletin to its law enforcement customers a week after the verdict, Taser reassured police that its top priority in such litigation is to see that "the police officers involved ... were not 'scapegoated' in any way. This strategy included Taser International taking some additional risk at trial"--an apparent reference to the company's active support of efforts to gain qualified immunity for police officers involved in the incident. Describing its approach as "the right thing to do," the company noted, "This case is a reminder of the inherent risks involved in jury trials, regardless of the strength of evidence and facts. It is widely understood within the legal community that juries are unpredictable."

The company holds firm to its contention that Heston died from excited delirium. Taser General Counsel Klint asserted in a company release in June, "The Taser [stun gun] was not a causal factor in this death, which fit the well-established symptom pattern for methamphetamine intoxication and associated excited delirium."

Since the Heston verdict the company's fortunes have improved. In June the U.S. Department of Justice released initial findings from a study of Taser-related deaths that concluded "law enforcement need not refrain from deploying [Tasers]." The report found "there is no conclusive medical evidence within the state of current research that indicates a high risk of serious injury or death from the direct effects of [Taser] exposure." However, the report did caution against multiple, prolonged Taser shocks, noting that their medical risks are "unknown" and "the role of [Tasers] in causing death is unclear." The final report is scheduled for release next year.

The Rand Corporation also released a report on Tasers, this one requested by the New York City Police Department after a confrontation in which a groom-to-be died in a hail of 50 police bullets. Rand recommended that the NYPD consider using Tasers instead of firearms in more situations, under a pilot program to test the device's effectiveness. But those recommendations were undercut in September when an NYPD officer used a Taser on a deranged man standing on a balcony, who then fell to his death. Days later, the despondent officer committed suicide.

Then in October, Judge Ware struck down the punitive damages against Taser in Heston as a matter of law. Only about $153,000 in total compensatory damages remained--not even enough to cover Burton and Williamson's expenses, let alone their hours.

But the ruling on punitives wasn't entirely a victory for the defense. Judge Ware wrote in his order, "The Court finds that there was substantial evidence ... that under certain conditions, prolonged exposure to electronic control devices posed risks to human health ... that a reasonable manufacturer would have warned of those risks ... [and] that Taser failed to give an adequate warning and that this lack of warning led the Salinas police officers to make prolonged deployments against Robert C. Heston." He cited plaintiffs' evidence that warning about "prolonged deployment" of the weapons "was not done in a way that would capture the attention of customers."

Because Judge Ware's ruling--related to errors in his jury instructions--was based on a matter of law, Burton says, it doesn't take away from the jury's verdict that Taser was partly liable for Heston's death.

"We've proven that Tasers can kill," Burton says, "and that [Taser International's] warning and training structure is inadequate. It was clear what the jury wanted to do: They wanted to send a message to Taser. That's a final judgment."

In the immediate weeks after the Heston verdict, Burton and Williamson had speculated that Taser International might be more inclined to settle claims, citing their own discussions with the company in the case of Evelyn Rosa's son. But no more: As of late fall, the duo said, Taser's lawyers are as aggressive as ever, and have not shown the least interest in settling.

One of those cases involves a 17-year-old North Carolina boy who died after being shocked by a Taser for 37 seconds in a Charlotte grocery store. Much of the incident was captured on videotape by the store's security cameras. An autopsy revealed that the boy died from cardiac arrest, though he had no drugs in his system, nor any previous heart problems. The coroner concluded in his autopsy report, "This lethal disturbance in the heart rhythm was precipitated by the agitated state and associated stress as well as the use of the conducted energy weapon (Taser) designed for incapacitation through electromuscular disruption."

Taser counsel Brave sees other hazards as a result of the verdict. "What is it gonna cost in terms of officers who are now hesitant to use the device, and the deaths that can result from that hesitation?" he challenges. "Ask the officers, and see what they have to say about medical examiners who put down things in their reports that are unsupported. You've got to understand the science."

In Salinas, Chief of Police Daniel Ortega contends that Heston would have died regardless of the Taser shocks. Neither Heston's death nor the jury verdict has diminished his confidence in the weapon. Since the department added Tasers to its arsenal in 2003, he says, it's seen 81 percent fewer officer injuries and a 33 percent drop in injuries to suspects. Indeed, Ortega says he wants to buy more Tasers, particularly the updated X26 model, which features a mounted camera.

With six cases against Taser International currently scheduled for trial--the first of which began in November--the company will have ample opportunity to retest its theory of excited delirium. Soon enough, it will know whether the Heston verdict was an aberration, or a sign of things to come.

Shahien Nasiripour is a fellow at the Center for Investigative Reporting in Berkeley.