The attorney for the survivors of a woman who died after taking part in a radio station's water-drinking contest says a record $16.57 million jury award is a clear rejection of the view that tort law allows people to avoid responsibility for their own actions.

Last week's verdict in a negligence case brought by Jennifer Strange's survivors concluded a trial in which defense counsel for the station's owners argued she was at least partly to blame for her death from water intoxication. Strange, 28, died Jan. 12, 2007 after drinking more than 1.5 gallons of water while competing in a “Hold Your Wee for a Wii” contest.

Defense witnesses included two contestants who dropped out before suffering any adverse health effects, the implication being that Strange acted irresponsibly by not doing so herself. One of them, Aram Dermenjian, said he knew he could leave the contest at any time.

“Did you assume others would know their own limits and know when to stop drinking?” defense attorney Donald W. Carlson asked him.

“Yes,” he replied.

Roger Dreyer

But plaintiffs' attorney Roger A. Dreyer (Dreyer Babich, Sacramento) established that Dermenjian had heard of hyponatremia, or water intoxication, before he took part in the contest and didn't know whether any of the other contestants knew about it.

Strange's husband testified he had never heard of hyponatremia and that she never indicated to him that she knew about it. Staff at the radio station, KDND 107.9, did not warn the contestants of the danger of excessive water-drinking.

In its verdict, the jury assigned 100 percent of the liability for Strange's death to Entercom Sacramento, which operates KDND, finding no contributory negligence against Strange. “It was an easy default tort reform argument to blame her,” Dreyer tells On Point. “It was all well and good until you looked at the facts of the case.”

The award includes $1,477,118 in economic damages and $15.1 million in non-economic damages. Dreyer believes it is the largest wrongful death award ever in Sacramento -– vindicating the plaintiffs' decision not to accept a settlement.

“This was a special case,” Dreyer says. “[The defense] never really wanted to evaluate it that way. They wanted to evaluate it as a garden-variety wrongful death case.”

He also notes that the plaintiffs wanted to hold Entercom “accountable in a public way. The FCC did nothing. This verdict has reverberated through the [radio] industry. Stations will be much more careful about how they run these contests.”

In their trial brief, the defense said Strange “knew at least as much as” the KDND staff about the dangers of drinking too much water and “voluntarily played” a role in her own death. As evidence of contributory negligence, a KDND receptionist would testify that she received a phone call in which a co-worker of Strange's, Kerry Carnes, said she “had warned [Strange] repeatedly” about the risks.

Strange also “conducted a 'practice run' the day before the Contest to see how much water she could drink and hold,” the defense said.

But the receptionist never took the witness stand. That testimony was “manufactured,” Dreyer says, and “Kerry denied everything.” As for the “practice run,” another co-worker of Strange's testified that she gave her only a single cup of water to drink and then timed her to see how long she could hold it.

The plaintiffs' witnesses included a psychologist who testified that in a competitive situation, contestants might not make sound decisions because of the pressure to win. That would be compounded by the effects of water intoxication on the brain, Dr. Diana Everstine said.

A medical expert for the plaintiffs, Dr. George Kaysen, suggested female contestants may have reacted more severely to hyponatremia than male contestants such as Dermenjian and Ronald Mendoza, another defense witness.

By Matthew Heller
11/4/09