In Ohio at least, the manufacturer of Tasers may have pulled off a “preemptive strike” against wrongful-death suits as an appeals court upheld an order requiring a coroner to remove any reference to the stun guns in three autopsy reports.

Amnesty International estimates that since June 2001, more than 150 people have died in the U.S. following Taser shocks and, in the cases of three men who died in the custody of Summit County, Ohio, law enforcement agencies, the county coroner identified the physiological stress of being incapacitated by a 50,000-volt Taser as a contributory cause of the deaths.

But Taser International (Nasdaq: TASR) sued the chief medical examiner, Dr. Lisa Kohler, under an Ohio law -- R.C. 313.19 -- which allows a judge to direct a coroner “to change his decision as to [the] cause and manner and mode of death.”

A trial judge in Akron found no evidence “to support the conclusion that the Taser X26 had anything to do with the death[s]” of Dennis Hyde, 30, Richard Holcomb, 18, and Mark McCullaugh, 28. And the 9th District Court of Appeals ruled in a March 31 opinion that he did not abuse his discretion when he ordered Kohler to remove references to Tasers from the autopsy reports.

“Taser presented expert testimony from a variety of disciplines, and each expert testified that, based on his respective field of expertise, deployment of Taser devices did not contribute in any way to the deaths,” Judge Lynn C. Slaby wrote for a 2-1 majority.

He also noted that Kohler and her staff “testified that they did minimal investigation into the issues presented by the Hyde, Holcomb, and McCullaugh deaths” and “could not opine to a reasonable degree of scientific certainty the mechanism through which Taser deployments contributed to the deaths.”

The dissenting judge, Donna J. Carr, found that as a threshold matter, Taser did not have standing to sue under R.C. 313.19 because “it has not suffered an actual injury and because the interests it seeks to protect do not fall within the zone of interest to be protected by the statute.”

All civil suits related to the three Summit County deaths have been resolved in Taser's favor. Case law, Carr emphasized, supports giving standing only to “persons with direct interests in the cause of death of the decedent, such as persons accused in the death, not a corporation seeking to make a preemptive strike to preclude lawsuits from being filed against it.”

Taser has brought similar cases around the country against medical examiners who have cited its products in autopsy reports. Reacting to the 9th District's decision, it presented the case against Kohler in a disingenuous light.

“We brought this suit as a matter of principle, to do the right thing to assist the law enforcement officers and medical personnel who were being criminally prosecuted and/or civilly sued for these deaths due to the errors made by the medical examiner,” the company's general counsel said in a statement.

But coroners all over Ohio –- and perhaps beyond -– may now be chilled from referring to Tasers in autopsy reports, depriving plaintiffs of crucial evidence. And as Carr said, “[T]he crux of Taser’s concern is 'its ability to market and sell' these devices.”

During a four-day bench trial, Taser's experts attributed the deaths of Hyde, Holcomb, and McCullaugh to “excited delirium.” Hyde and Holcomb both had methamphetamine in their bodies and McCullaugh had a preexisting psychiatric condition.

A jury in California last year rejected the “excited delirium” theory in awarding $6.2 million to the family of a man who died after police repeatedly shocked him with the stun guns. Both sides appealed after a judge threw out the $5 million in punitive damages and awarded the plaintiffs $1.4 million in attorneys' fees.

By Matthew Heller
4/2/09