The 9th U.S. Circuit Court of Appeals has thrown out an unusual “public interest” award of $1.4 million in fees to the attorneys who won a landmark wrongful-death verdict against the maker of Taser stun guns.

A jury in June 2008 awarded $6.2 million in damages to the parents of Robert C. Heston, finding that he had a heart attack as a result of being repeatedly tasered by Salinas, Calif., police. Out of more than 70 wrongful death or personal injury lawsuits involving Taser shocks, the case was the first in which a jury has held Taser International (Nasdaq: TASR) liable.

After the trial, U.S. District Judge James Ware reduced the jury award to $1 million, ruling the Hestons were not entitled to $5.2 million in punitive damages. But he also said the case qualified for an exception to the general rule that a prevailing party is not entitled to attorney fees.

California's “private attorney general law” may apply “in any action which has resulted in the enforcement of an important right affecting the public interest.” The award of $1,423,127.50 gave attorneys John C. Burton and Peter M. Williamson the full amount of what they had requested in fees.

“The notoriety of Plaintiffs’ 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 noted in his order.

But in an unpublished opinion, the 9th Circuit said the fee award was improper because the plaintiffs did not take on a risk by bringing their suit that was out of proportion to their potential recovery in damages.

The Hestons reasonably expected to “recover substantial damages from Taser” and their lawyers took the case on a contingency fee basis “without an empirical basis to believe they would benefit from California’s private attorney general statute,” the court ruled.

The jury found Robert Heston 85 percent responsible for his death, which left his parents with a net recovery of about $150,000 in compensatory damages. Assuming a contingency fee of about 40 percent, the attorneys will now be paid only about $60,000 — less than 1 percent of the fee award.

Heston, 40, died a day after being arrested by four police officers at his parents' home in Salinas. An autopsy showed dangerously high levels of methamphetamine in his blood but the jury rejected Taser's argument that he died of “excited delirium.”

In awarding the attorney fees, Judge Ware concluded there was a “substantial risk” that the Hestons would win little or no damages “[d]ue to the novelty of Plaintiffs' negligence theory and the likelihood that any recovery would be diminished by Robert C. Heston’s contribution to his own death.”

During oral arguments before the 9th Circuit, Burton said the verdict had “huge ramifications” for public safety. But he may have shot himself in the foot by mentioning that he had been involved in other Taser personal injury cases.

“I think what's telling is that Mr. Burton says, 'I'm involved in a lot of these cases,'” said U.S. District Judge Ronald B. Leighton, sitting on the appeals court by assignment. “That's an economic decision that Mr. Burton is making. That suggests that perhaps fees aren't appropriate because that burden is no greater than what you would assume when you take on these kinds of cases.”

Taser's lawyer argued that “There has never been a products liability action involving individual plaintiffs in which California courts have permitted fees to be recovered under the private attorney general statute” and the Hestons' case had “none of the traditional hallmarks or indicia of public interest litigation.”

The 9th Circuit also upheld the award of compensatory damages to the Hestons but refused to reinstate the award of punitive damages.

By Matthew Heller
5/14/11