The Kickham Comment - Boston Accident Lawyer Blog
Almost every other day, it seems, we hear of another case in the news where someone has been “tasered” by police or security personnel. The modern suspect-control device has grown in popularity with many police departments across the United States, as well as U.S. military and some private security agencies. The device’s advocates, led by its manufacturer, Taser International, argue that the device is safer than using mace or pepper spray, because mace can miss its target and harm bystanders since it’s applied in aerosol form, while a Taser stun gun can’t harm anyone other than the person who is tasered. As a matter of physics, that may be true, but the electric charge that most Taser stun guns are set at, can’t be altered on-site just prior to use, resulting in a standard electric shock being administered to most suspects being shocked. Unlike the old Star Trek TV series, Captain Kirk doesn’t give out an order to preemptively adjust the guns on a “stun” or “kill” setting, depending on the threat level.
The devices are in theory designed to temporarily stun someone, just long enough for police or security personnel to subdue and handcuff or restrain the suspect – but theory and practice exist in two different worlds, and it doesn’t take a genius to see that this one-size-fits-all approach was eventually going to cause some tragic results.
Four years ago, a Watsonville, California man was shocked with a Taser stun gun by a police officer in that city. The victim, Steven Butler, 49, was tasered by an officer using a Taser X-26 device, after Butler reportedly became combative with the officer when asked to get off a bus he was riding on. Butler was alleged to have been drunk and off his psychiatric medication in October 2006 when the incident occurred. After being tasered, Butler went into cardiac arrest and stopped breathing. It took medical personnel 18 minutes to resuscitate him and, as a result, Butler suffered an anoxic brain injury (loss of oxygen to the brain.) Butler was left with substantial brain damage and has no short-term memory. Additionally, he suffered a loss of mobility and the loss of his motor skills. As a result of the injury he will require around-the-clock care for the rest of his life, and cannot be left unattended, according to pleadings filed in the suit.
Recently, in an important legal development as far as setllments (vs. jury verdicts) in product liability cases are concerned,Taser International agreed to pay $2.85 million to settle Butler’s suit against it. This settlement is important, because prior to this case, Taser International had never agreed to settle a case brought against it – and they had never lost a jury trial. Legally, a Product Liability suit is brought when evidence exists to suggest that the manufacturer of a product designed, manufactured, or marketed its product in a manner that was likely to cause an unreasonable risk of injury or harm to a foreseeable user of that product. This type of suit is subset of typical negligence suits, such as a Massachusetts personal injury case, in that different legal standards apply to a manufacturer or distributor of products. More on the law of Product Liability can be learned at my website, by clicking on that link in this sentence. In defending this suit, Taser claimed that Butler had several pre-existing cardiac and health conditions that contributed to his injury. Also, in previous, similar lawsuits against Taser, the company had always presented extensive “medical” and “scientific” studies claiming that its product was “safe and effective”. (Effective, yes – but “safe”?)
Given all those factors in Taser International’s favor, why would it settle this case? Legally, for two principal reasons: 1) In this (the Butler) case, the plaintiffs’ lawyers were about to expose the fact most of the “scientific and medical research” about adverse effects of electric shock from a stun gun, has been directly or indirectly financed by Taser International – hardly an objective source of authority. 2) Even more critically, the plaintiff’s legal team in the Butler case was assisted by Pasadena, California attorney John Burton, who had previously won the first lawsuit ever against Taser International. That suit was actually against the city of Salinas, California and Taser on behalf of the family of a man who died as a result of being shocked by a Taser stun gun. Attorney Burton’s client, Robert C. Heston Jr., died after being stunned multiple times by a police officer armed with a Taser device in February 2005. This victory, in 2008, marked the first time a stun-gun victim had won a product liability jury trial against Taser International. However, at the time of Steven Butler’s injury in 2006, Taser had never lost a lawsuit in front of a jury. Attorney John Burton’s 2008 jury victory changed Taser’s thinking enormously, leading to this $2.85 million pre-trial settlement in the Butler case. Taser came to see that they were vulnerable in court. With the Butler case, the plaintiff’s legal team compiled investigation, discovery, pleadings and research that filled 11 oversized boxes. The team was prepared to go to trial in the spring, but the case was postponed and then settled.
What makes the Butler settlement even more interesting is a ruling the judge made after the settlement agreement was reached between the parties. Settlement agreements involving negligence and liability suits typically contain nondisclosure, or secrecy, clauses, providing that the terms of the settlement agreement shall remain confidential to all except the formal parties to the suit. These provisions, coupled with a standard disclaimer of any and all liability on the part of the defendant(s), are common practice, and are usually agreed to by the parties without much dispute, but they must first be reviewed and approved by the trial judge overseeing the case. Such was the case with the Butler settlement: Both parties in the case agreed to confidentiality provisions, without major dispute. But a funny thing happened on the way to the secrecy file: The judge in the case refused to allow the details of the settlement remain confidential, and ordered the file to remain unsealed, citing the “therapeutic value” in allowing the public to see the details of this agreement. Judge Jeff Almquist ordered this done, over the objections of Taser’s lawyers. This was quite unusual. Now, whoever wants to review the terms of this settlement agreement and how much money was paid, can see the truth. In fact, the judge’s ruling is the principal reason why media and legal bloggers like me are reporting on this settlement.
As a Boston personal injury lawyer, I don’t have a problem with settlement agreements, in principle. But I do believe that greater public disclosure should be encouraged, and even ordered, in many liability settlement agreements. Otherwise the negligence that individual defendants can engage in, and more importantly that corporate defendants so often engage in, will never see the light of day. This is so whether the case involves corporate product liability, Massachusetts nursing home neglect and abuse (which I emphasize in my practice,) or Boston car accident injuries. That discourages accountability; it discourages changes for safer products and improvements in risk management. And in the end, that’s bad for everyone.