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Friday, November 28, 2008

For Taser, suit ends in lose-one, win-one scenario

November 28, 2008
Abigail Goldman, Las Vegas Sun

Three years ago in Salinas, Calif., police used Tasers to repeatedly shock 40-year-old Robert Heston. He died the next day.

Heston had been high on methamphetamine and living with an enlarged heart because of long-term drug abuse. Still, in June, a jury found the Tasers were partially to blame for his death.

This was Taser Inc.’s first loss in civil court, a significant event that’s nonetheless overshadowing the bigger story here: The medical evidence that Heston’s attorneys used to win the case could do a lot more damage to Taser International Inc. than the lawsuit itself.

Heston’s attorneys presented a novel argument: Prolonged or repeated Tasering causes acidosis, an excess of acid in the bloodstream. The acidosis, in turn, can cause cardiac arrest. Unlike other arguments against the Taser’s safety, which have been unsuccessful partially because they’re bogged down with complicated science, the Heston case presents a tidy medical cause and effect that worked with one jury.

In other words, don’t be surprised if you hear about Taser acidosis deaths again.

Heston’s attorneys have taken on similar cases and their quotes in the media give Taser warnings about what could come.

As John Burton, one of those attorneys, told Bloomberg News, “I think Taser’s going to have to rethink its litigation strategy and its warning policies.’’

Local observers have taken notice as well.

“It’s a new argument that’s a lot cleaner and less complicated to prove,” said Maggie McLetchie, staff attorney for the American Civil Liberties Union of Nevada. “It will help push the dialogue forward on the proper use of Tasers.”

Jurors in the Heston case determined that Taser failed to warn police that multiple shocks could cause cardiac arrest. Heston’s family was awarded about $5.2 million in punitive damages. Shortly afterward, the Arizona-based company’s stock fell just more than 10 percent. Taser International filed a challenge to the damages award and requested a new trial.

Taser didn’t get a new trial, but it did get the millions of dollars back. In October a judge threw out the punitive damages. This is because the Heston jury only ruled that Taser should have known the device can cause cardiac arrest, not that company officials actually did know — enough of a distinction to clear the company of product liability problems.

Now Taser is indebted to the Heston estate for less than $200,000 in compensatory damages.

An article in the Monterey County Herald noted that each side claimed this was a victory, and each side is right.

Heston’s attorneys have successfully held Taser liable for negligence, a precedent that could affect lawsuits to come.

Taser, in turn, saved itself some money, cash the company may need later, should the Heston argument work again.

Taser International spokesman Steve Tuttle would not comment directly on the Heston case, but provided a company news release on the subject. In that release, Taser attorney Doug Klint said he was pleased with the outcome, but still considering filing an appeal.

The release also emphasized that the Taser device was deemed only 15 percent responsible for Heston’s death.

It’s easy to understand why the company wants to affirm that it is not a lethal weapon. That is, after all, a linchpin of Taser’s sales to more than 13,000 law enforcement, correctional and military agencies in 44 countries.

In Clark County, there are five lawsuits pending against Metro Police for incidents in which officers shocked people with Tasers. The department has a good record when it comes to these kind of cases — it has defeated five so far.

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