USA – Santa Cruz, California: Press Coverage of the BUTLER V. TASER INTERNATIONAL, INC Case (2010-08-19)

Published on August 19 2010 by admin

 [[SUMMARY / COMMENTS: Details of the taser-scene as a result of which Steven Butler, permanently injured after he was shocked with a Taser nearly four years ago, reached a $2.85 million settlement with the stun-gun maker this summer, the first time Taser International has settled a product liability case, according to court documents. The company did not admit to any liability for the anoxic brain injury. 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. Taser International claimed Butler had several pre-existing cardiac and health conditions that contributed to his injury. However, the judge 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.]]

Santa Cruz Sentinel August 19th, 2010

SANTA CRUZ — A Watsonville man permanently injured after he was shocked with a Taser nearly four years ago reached a $2.85 million settlement with 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, no short-term memory, lost mobility and decreased motor skills. 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 moustaches, 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.

But 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.

Overview

BUTLER V. TASER INTERNATIONAL, INC

On October 7, 2006, 48 year old Steve A. Butler suffered a cardiac arrest after the Watsonville Police Department (“WPD”) shocked him over the heart for 18 seconds with a Model X26 Electronic Control Device (“ECD”), manufactured by TASER International, Inc. Mr. Butler was drunk and rowdy, and refused to get off a Metro Bus. Butler’s brain, denied adequate oxygenated blood before paramedics restarted his heart, suffered severe damage. Mr. Butler is now under the care of his conservator and brother, David Butler.

Cartwright, Scruggs, Fulton and Walther represented Mr. Butler in his products liability lawsuit against TASER. In the lawsuit, Butler stated causes of action for: (1) negligence, (2) strict products liability, (3) intentional misrepresentation, (4) negligent misrepresentation, (5) fraudulent concealment and deceit, and also requested punitive and exemplary damages for TASER’s fraud and malice. (See “Complaint”)

TASER International, Inc. is a formidable adversary. They claim to have never offered a dime in settlement of a products liability case involving an injury to a “suspect”. TASER claims to have defeated over 100 lawsuits filed against it without paying a penny. TASER claims that the medical and scientific evidence, supported by peer review studies, establishes that there is no evidence that a TASER device can adversely affect the human heart.

Nevertheless, Dana Scruggs, Esq. of CSF&W and his co-counsel, John Burton, Esq., marshaled expert evidence to establish that trans-cardiac chest shots by TASER devices, like the one Mr. Butler suffered, can cause cardiac arrhythmias, leading to ventricular fibrillation and cardiac arrest. Rather than suing the police department officers who tased Mr. Butler in the chest, Mr. Butler and his attorneys sought to establish that the law enforcement officers were acting in good faith by relying on the training and instruction provided by TASER International, which stated that the TASER ECD could not affect the human heart. Mr. Butler and his attorneys believed that in this particular case, the law enforcement officers were the “victims” of TASER’s failure to warn and misrepresentations about the potential cardiac effects of its X-26 ECD. As one of Mr. Butler’s experts concluded:

“The failure of TASER to conduct reasonable testing regarding the cardiac risks of its electronic control device, failure to adequately warn of the known and knowable cardiac risks of the product, and the misrepresentations and misleading statements that made law enforcement regarding medical and cardiac safety of the device, were actions in conscious disregard of the safety of the persons on whom this device was intended by TASER to be used.”

TASER’s high-power ECDs have been dogged by controversy since their introduction a decade ago, stoked by TASER’s categorical misrepresentations that its ECDs’ electrical current cannot affect cardiac rhythms. During March 2006, however, a TASER-funded study documented that current from a Model X26 to the chests of test animals “captured” the heart’s electrical system, leading the researchers to advise TASER that “avoidance” of darts near the heart “would greatly reduce any concern for induction of ventricular arrhythmias.” Nevertheless, in May 2006 TASER issued “Training Version 13,” which continued the misrepresentations that TASER ECDs cannot affect cardiac rhythm. Training slides pictured officers shooting Model X26 darts directly into the chest, and instructed officers to aim for “center body mass,” where the heart is located. The WPD relied exclusively on these fraudulent TASER training materials, and believed that a shock to the chest could not affect the heart.

As a result of TASER’s concealment and misrepresentations concerning the cardiac risks of the Model X26, the Watsonville police officer fired his Model X26 directly into Butler’s chest to control a minor disturbance on a Metro bus. Because the Model X26 did not perform as the officer expected it to – causing a cardiac arrest rather than injury-free control of Butler – because TASER failed to warn of the potentially catastrophic consequences of shots to the chest, and because TASER deliberately placed profits before safety by concealing and misrepresenting the cardiac risks posed when the Model X26 is fired into a human’s chest. Mr. Butler and his attorney aggressively pursued TASER in this products liability action.

 

I. TASER’s Product History and Representations of Cardiac Safety

TASER’s placing profits before safety began with its development of the Model M26, the precursor of the Model X26 used on Butler. During the mid-1990s, when TASER demonstrated an earlier product, a weaker ECD known as the “AIR TASER 34000,” volunteers fought through its effect. In response, TASER created a test apparatus to shock an anaesthetized pig, eventually increasing the energy per pulse four-fold, from .44 to 1.76 joules – 26 watts of power. “Even though the animal was completely anaesthetized and could feel no pain, the muscles of the body went into a complete, uncontrollable contraction. We had achieved the effect we were looking for.”

The pig used as the test subject received 48 five-second shocks from the custom device and survived. That was the first stage of TASER’s “animal testing.” The second study, issued in preliminary form two months after the Model M26’s release, involved shocking five dogs for five seconds each to see if the current directly induced cardiac arrest. That study was never peer-reviewed or published.

While representing to police agency customers that TASER had “follow[ed] the same approach to research as is used in the pharmaceutical and medical device industries,” including testing “in animal models first, then in human subjects,” such as required “[b]efore the FDA will approve a new drug,” TASER conducted no human testing other than subjecting several hundred volunteers – primarily police officers, military personnel, and TASER representatives – to brief Model M26 exposures, generally to areas other than the chest, and asking them what happened. Of 914 humans included in the report – most of whom received shocks after the release of the product – 809 received a mere one-half second discharge from the Model M26, one tenth of the pre-programmed five-second cycle.

After the 1999 release of the Model M26, TASER developed a more compact ECD, the Model X26, which required a change in the electrical wave-form emitted by the device. TASER provided an owner’s manual with its initial sales of the Model X26, which included representations such as, “In animal testing, the X26 was found to have a safety margin of 20 times (the X26 was 1/20th of the danger level),” and “The TASER X26 was tested extensively on both animals and human volunteers and has been found to cause no dangerous cardiac or other effects.” Moreover, it instructed users to “Aim for the center of the back or the chest of the subject.” There were no data published supporting these claims.

Instructor power point presentations TASER distributed with the product made similar safety claims, including “TASER tests have found: – No effect on heart rhythms” when “tested on animals”, “Heart rate unchanged during TASER X26 stimulation directly through [the] chest, across the heart”, “Using ‘worst case’ scenarios, two cardiac safety experts found no interference by the M26 with the heart rhythms,” and “Extensive animal testing has shown no effect on heart rhythms or blood pressure.”

II. The WPD Begins Purchasing TASER ECDs and Training Its Officers to Use Them

WPD Sgt. Michael Ridgeway put himself through a TASER training course in May 2004. He was trained by TASER-certified “Master Instructor” Rick Guibault that pig testing established the ECDs are cardiac safe. Sgt. Ridgeway left the course “knowing it couldn’t cause cardiac arrest.”

Sgt. Ridgeway subsequently presented on TASER ECDs to the Watsonville City Council, using slides from TASER “Command Demonstration,” Version 12. Included was a slide asserting categorically that the “X/M26 will not cause heart or pacemaker failure.” The WPD began purchasing Model X26s and training its officers in 2005.

III. By at Least Early 2006, Cardiac Electro-Physiologists Discover that Model X26 Current on the Chest Captures Cardiac Rhythms

TASER funded an animal study conducted by, among others, prominent cardiac electro-physiologists Dhanunjaya Lakkireddy, M.D., and Patrick J. Tchou, M.D. The results of which TASER was aware of at least by March 2006. The authors found that Model X26 discharges over the heart “captured” cardiac rhythm, a precursor to cardiac arrest.

The TASER-funded authors wrote that their “study is the first to describe capture of ventricular myocardium during application of [ECD] pulses,” that “pigs frequently have been used in fibrillation and defibrillation threshold studies with the results generalized to humans,” and that avoidance of darts near the heart “would greatly reduce any concern for induction of ventricular arrhythmias.”

A similar animal study by Kumaraswamy Nanthakumar, M.D., also a cardiac electro-physiologist, reported during May 2006 that 22 of 41 Model M26 discharges to the chest of test animals resulted in cardiac capture, while all but one of 53 Model X26 discharges did so. None of 56 non-thoracic discharges from either device caused capture, demonstrating the high correlation between darts in the chest, close to the heart, and potential arrhythmias, especially with the Model X26. One animal experienced non-sustained ventricular tachycardia that spontaneously reverted to sinus rhythm, while another sustained ventricular fibrillation and cardiac arrest. These findings demonstrated that the capacity existed for TASER ECDs – the X26 more than the M26 – to induce cardiac arrest, especially during the stress and pain of the ECD discharge.

TASER concealed these findings from its law enforcement customers and users by continuing to misrepresent that animal studies established its products’ cardiac safety. In the May 2006 Version 13 X26 User course: “Animal testing has shown insignificant effects on heart rhythms or blood pressure”; “The ADVANCED TASER M26 was applied directly to the chest of experimental animals without causing heart failure,” and “Using ‘worst case’ scenarios, cardiac safety experts found no induction by the M26 of abnormal heart rhythms.” Moreover, TASER continued to train officers to “[a]im like a standard firearm at center of mass,” illustrating ECD use with diagrams of shots directly to the heart without warning that chest shots significantly increase the risk of cardiac arrest.

IV. WPD Officers’ TASER Training and the Butler Incident

The WPD first trained it officers with TASER materials in 2005, and then again with Version 13 three months before the Butler incident, leaving him with the belief that the electrical charge was so “miniscule” that “it wouldn’t have a direct effect on the heart,” that “the current wasn’t strong enough to directly affect the heart rhythm.” Officers were not instructed that the duration of charge or the location of a dart near the heart had any effect on safety. There officers were trained to target “center mass” without regard to the front or the back and to avoid targeting the legs because “you are probably going to miss.”

At 4:15 on Saturday afternoon, October 7, 2006, Officer Iles responded to a call of an intoxicated man refusing to get off a bus, a not uncommon call for the Watsonville Metro Station. Officer Jarrod Pisturino arrived moments later. Butler was seated in the back of the bus near one Hispanic gentleman, appearing stuporous and intoxicated. While Officer Iles attempted to persuade Butler to get off the bus, the Hispanic man left, so Butler was alone in the back with the two officers. Butler stood up and sat down, feigning various fighting gestures without advancing or throwing any punches, and made various comments, including asking “Are you guys here to ride the bus?” Butler claimed that ECDs were not effective on him. Officer Iles thought Butler was “a belligerent drunk who maybe had some mental issues,” something “we deal with on a daily basis.”

The WPD Officer fired his Model X26, hitting Butler on the left chest, with the darts relatively close together because of the close distance between them. The burn marks from the TASER probes are clearly visible in photographs taken by WPD Sgt. Michael Ridgeway shortly after the incident, with one near his left nipple and the other on his left abdomen. The Officer’s Model X26 recorded cycles of five seconds, eight seconds and five seconds. Immediately after the last cycle, the officers noticed that Butler was unconscious, unresponsive and not breathing, and an ambulance was summoned. The officers removed Butler’s limp body from the bus, and the paramedics arrived quickly as the station was only two blocks away.

Watsonville firefighter/paramedic Rich Seadler reached the scene within two minutes of the call. He found the X26 darts still embedded in Butler. Butler’s heart was in ventricular fibrillation. Three minutes before arriving at the Watsonville Community Hospital emergency room, Butler responded to infusions of epinephrine and defibrillation shocks, and eventually recovered normal cardiac function. Butler’s brain may have been deprived of oxygen for as long as 18 minutes. As a result, the cardiac arrest – although reversed by the paramedics – caused significant hypoxic encephalopathy, a permanent brain injury.

V. The Butler Family Comes Together To Support Steve

As a result of Steve Butler’s brain injury, he now requires 24 hour attendant care. He lives with his parents in the family home in Watsonville, California. His two brothers, his sister and their immediate families all live within a quarter mile of Steve. Since his brain injury, Steve’s brother David spends every day, from early in the morning until dinner time with Steve insuring his safety. His parents attend to Steve in the evenings.

Prior to the tasing incident, Steve was independent in all aspects of daily living. He worked part-time as a gardener and handyman. He managed his own money. He went where he wanted to go and was able to ride a bicycle or take a bus to do it. He was physically active. He made his own medical decisions, could cook his own meals, and could bathe and dress himself. He was engaged socially, and had good and vibrant relationships with his family and friends. He had an excellent memory.

Because of the anoxic brain injury, he has none of these things. His short term memory is virtually non-existent. Unless he sees a person, place or thing on a regular, repetitive basis, he will not recognize them or it. He cannot create new memories. His long-term memory is also significantly impaired. He is quiet, subdued, and does not initiate social interaction. He is dependent on his caregivers for all activities of daily living. He is not safe to be left alone.

It is always a tremendous honor to represent a loving family who are seeking to obtain justice for one of their own. The Butler Family is exceptional in this regard. The goal of the litigation, therefore, was to both prove the culpability of TASER International, Inc. for the cardiac arrest and resulting brain injury which Steve Butler suffered, and to provide Steve and the Butler Family with sufficient economic and financial support so that Steve could receive the proper care for his injuries and disabilities for the rest of his life.

http://www.csfwlaw.com/taser_abuse_lawsuits.php

 

 

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