Why Taser is paying millions in secret 'suspect injury or death' settlements - when does 'less lethal' actually mean deadly?

December 13, 2013 - Matt Stroud, The Verge

On the day before Thanksgiving this year, international stun gun and cop-cam company Taser International, Inc. announced it had given up its fight in two major legal battles over "suspect injury or death." In a 275-word statement submitted to the US Securities and Exchange Commission, the company's chief financial officer said it would pay a total of $2.3 million in settlements to plaintiffs who had sued the company in product liability cases.

This was rare. Taser prides itself in fighting to the bitter end in any case alleging that its products do anything but save lives. Yet there it was in a financial disclosure — Taser backing down.

Taser brushed it off as a remnant of simpler times. According to the vaguely worded statement, enhanced "risk management procedures" and "revisions to product warnings" in 2009 corrected a legal vulnerability. The $2.3 million payouts would address the last lawsuits tied to that vulnerability; they would amount to housekeeping — cleaning up lingering messes that had remained on the company’s books since before 2009.

WHAT WERE THESE "RISK MANAGEMENT PROCEDURES"?

But what were these "risk management procedures"? What were these "revisions to product warnings"? What was the vulnerability? And what were these cases? Taser’s press liaison told The Verge that its SEC declaration "speaks for itself" — a clear indication that the company has no plans to say anything further about settlements unless it’s forced to.

But a little research helped to pin down procedural changes Taser made in September, 2009. And a public records search helped to narrow the possibilities down to four representative cases that may have been settled. Those cases have a few major factors in common: they involve a Taser shot at someone’s chest; they involve someone going into cardiac arrest; and they involve an accidental death.

For years, Taser has battled in court to show that its electronic control devices — its ECDs such as the X2 and the X26 — cannot kill. But if its recent settlements are any indication, the company may either be slowly backing away from that premise, or at least attempting to draw a line in time after which the company feels it's no longer liable for someone’s death.

CONTRIBUTING FACTORS

As bars were closing at about 2AM on April 19, 2008, 24-year-old Kevin Piskura was at a music venue about a block away from the Miami University campus in Oxford, Ohio. As the bar closed its doors and patrons exited, a fight broke out. Oxford Police were called. According to a civil complaint filed in 2010 by Piskura’s parents, an officer ordered Piskura to "step back or back away" from the fight. It’s not clear whether he did or not, but the officer soon pulled out a Taser ECD and shot Piskura in the chest. Piskura went into cardiac arrest; his heart stopped beating. He was taken to a nearby emergency room and soon life-flighted to a Cincinnati hospital where he died five days later. This past March, Piskura’s parents settled with the City of Oxford and the Oxford Police Department for $750,000. In October, Piskura’s parents suggested they were considering a settlement with Taser.

The Piskuras did not return calls from The Verge, and an attorney representing their case declined to comment. But Kevin Piskura’s death fits a pattern consistent to ongoing product liability cases involving Taser-related incidents in which someone was killed prior to September, 2009. The $2.3 million payouts likely stem from similar cases; these incidents occurred before Taser made its switch from "non-lethal" to "less lethal."

Regarding that: letters to medical journals and plenty of anecdotal evidence have suggested at least since 2005 that even healthy people could suffer cardiac arrest if shot near the heart with Taser’s "non-lethal" ECDs. By September, 2009, Taser changed its product warnings accordingly. Today, Taser’s ECDs are branded as "less lethal" instead of "non lethal," and its training materials warn that "exposure in the chest area near the heart … could lead to cardiac arrest."

Another ongoing cardiac arrest case against Taser involves Ryan Rich. A 33-year-old physician in Las Vegas, Rich went into cardiac arrest and died in January, 2008 after he was shot five times with an ECD, including once in the chest. That case is headed to trial in January.

A third case comes out of the Detroit suburb of Warren, Michigan, and will head to trial in May, 2014. It involves the 2009 death of 16-year-old, 5-feet-2-inch Robert Mitchell, who died in an abandoned house after being shot in the chest by a Warren police officer with a Taser ECD.

"TURNER COLLAPSED 37 SECONDS AFTER THE DEVICE WAS ACTIVATED."

Darryl Turner’s case is a fourth possibility. Turner was 17 years old in March 2008 when he got into an argument with his boss at the North Carolina Food Lion grocery where he worked as a cashier. According to a complaint later filed by Turner’s parents, the argument escalated to shouting and Turner’s boss eventually called 911. A police officer from the Charlotte Mecklenburg Police Department arrived and asked Turner to "calm down." When the teenager refused, the officer pointed his Taser ECD at Turner’s chest. Turner began to step toward the officer, so the officer "held down the Taser’s trigger, causing the device to continue emitting an electrical current, until Turner eventually collapsed 37 seconds after the device initially was activated." Paramedics soon arrived to find Turner handcuffed and unconscious. He was pronounced dead at the scene.

In an uncommon outcome, Turner’s family was awarded a massive payout in 2011. Taser appealed. In November of this year, an appeals court issued its opinion that Taser should remain liable for Turner’s death, but that the jury’s award needed to be reconsidered. "We have no doubt that Turner had significant value to his parents," the appeals court’s decision read. But the court couldn’t agree with a "reasonable level of certainty" that the boy’s life was worth $6.15 million. The parties are scheduled to head back to court in 2014 to haggle over that figure. Unless, that is, Taser has decided to cut its losses and settle out of court.
ON THE RECORD

Taser International is very good about keeping records. In addition to its Axon Flex on-body police camera that allows officers to record interactions with suspects, the company also collects data every time a Taser ECD is fired. But it’s up to police departments — and up to Taser International — to decide how much of that information is revealed publicly.

The company takes a similar approach in the courtroom.

Taser typically insists on keeping its legal settlements — such as those referenced in its recent $2.3 million payout — secret. Rarely are the terms made public. But it happens occasionally. One Northern California case involved a drunk man off his psychiatric meds who was shot with a Taser ECD after refusing to get off a bus. He went into cardiac arrest. An emergency crew was able to resuscitate him on scene, but after going 18 minutes without a breath, the man suffered a crippling brain injury. He would require a caregiver from that point forward.

After a long legal battle, Taser agreed to settle that case. As per usual, it demanded that the settlement agreement be kept secret. The defendants in the case agreed. But eventually it was revealed that the company had settled for $2.85 million. The settlement figure was only made public after a probate court judge made the unusual decision to disclose the dollar amount in open court.

THERE WAS, THE JUDGE SAID, "THERAPEUTIC VALUE" IN MAKING THE INFORMATION PUBLIC

A report from the San Jose Mercury News later explained the judge’s reasoning. There was, the judge said, "therapeutic value" in making the information public.

Whether or not a judge makes similar decisions about Taser’s recent settlements, it’s clear that the company has decided to settle cardiac arrest cases as quietly as possible because it has maintained for years that its weapons are effective, non-deadly alternatives to firearms. If too much attention focuses on Taser-related deaths, there’s a risk that police departments might choose to sidestep the controversy altogether and opt against Taser's products.

There’s a lot at stake on both sides. For Taser, its NASDAQ-traded stock value is on the line. And for those engaged in open legal battles over Taser-related deaths involving cardiac arrest and factors such as "excited delirium" ("a euphemism for ‘death by Taser’") — as well as those who may literally find themselves facing down a Taser ECD in the future — the value of an open settlement may amount to more than mere therapy. It could amount to life or death.

Fort Worth police buying Tasers with safety feature

March 13, 2012
Mitch Mitchell, Star-Telegram

FORT WORTH -- New Tasers that automatically shut off after a five-second discharge will soon be in the hands of Fort Worth police, an important safety feature that should prevent sustained shocks to unruly suspects.

Police administrators said 250 Tasers will be given to patrol, neighborhood and zero-tolerance officers by midyear. The X2 replaces the X26, both manufactured by Taser International.

"The X2 is essentially the same as the X26 in that it deploys the darts using the same mechanism," Sgt. Mark Wilson, Fort Worth police in-service training supervisor, said in an e-mail.

"The voltage is the same and the darts themselves had no major design revision. The main two points we were looking for was the automatic cut off at five seconds after being deployed, even if an officer holds the trigger down. That was a safety issue that was very important for us."

The other change Fort Worth police sought was the addition of a second cartridge.

Taser International has described the weapon as less lethal because the 50,000-volt shock it deploys for a short time is safe.

The older model did not prevent a longer shock. In 2008 in North Carolina, a teenager died of cardiac arrest after a police officer shocked him twice with a Taser, first for 37 seconds, then for five.

The issue came to light in Texas in April 2009, when Fort Worth officer Stephanie Phillips fired her X26 at 24-year-old Michael Patrick Jacobs Jr., a mental health patient who was acting erratically at his east-side home. The barbs struck Jacobs in the chest and neck. Phillips told investigators that she inadvertently held down the trigger for 49 seconds and then shocked Jacobs again for five seconds after he failed to comply with officer commands. Jacobs died.

Fort Worth Police Chief Jeffrey Halstead, who was in his first full year as chief, said he promised residents that what happened to Jacobs would never happen again.

He began lobbying Taser International in October 2009 for technical applications that would solve extended-deployment issues.

During a meeting of the International Association of Chiefs of Police in Denver, Halstead said, he proposed that the X26 be programmed so that the maximum duration of a shock, without releasing and pressing the trigger again, would be 10 seconds.

Taser International officials said it would be too problematic to reprogram the thousands of X26s that were already in use, said Maj. Paul Henderson, Fort Worth police chief of staff. However, Halstead's ideas were incorporated into the new X2 and X3, a three-shot device.

"We did add a five-second cutoff and an audible alert to the X2," said Steve Tuttle, Taser International vice president of communications. "Chief Halstead was a thought leader on this issue and helped us develop this safety improvement."

Another new feature is the ability to discharge the device at two targets without reloading -- if an officer misses, for example, or the darts make an incomplete connection.

While Halstead's lobbying may have been persuasive, another factor in the company's decision may have been potential liability. In July, a jury in the North Carolina case found Taser International at fault, awarding the teen's family $10 million. Jacobs' family filed a wrongful-death lawsuit against the police and Fort Worth. Without admitting fault, the city settled in 2010 for $2 million, far more than the city had ever paid in a wrongful-death suit.

Amnesty International has recorded 500 conducted energy device deaths in the United States since 2001, with the largest number (92) in California, followed by Florida (65) and Texas (37).

Creative and patient

The Fort Worth police department, which employs about 1,500 sworn officers, has more than 1,200 X26 Tasers on hand. But while the older Tasers do not meet the needs of the Fort Worth department or other police departments nationwide, budget constraints meant there was no money for the new technology, Halstead said.

Taser International reached a deal with Fort Worth that gave the city a 30 percent discount and allowed it to pay for the X2 over time, Halstead said. That let the city get the new Tasers without large upfront expenditures, he said.

"The economy is hurting us right now," Halstead said. "We are just having to be a little more creative and a little more patient in how we bring these innovations to our city."

This year, the city budget shows that Fort Worth will spend $80,930 -- nearly $16,000 more than last year -- for Taser replacement.

The Georgia Bureau of Investigation, the Chicago Police Department, the Houston Police Department and the Woodbury, Minn., Police Department have all purchased the X2, according to Taser International.

Even with the safeguards, controversy continues over use of the Tasers.

According to Fort Worth police figures, Tasers were used 1,841 times by officers between 2005 and 2010, and in two-thirds of the incidents where someone was arrested, they were used with minorities. Since 2001, five people in Fort Worth police custody have died after a Taser shock

The Rev. Kyev Tatum, president of the Tarrant County chapter of the Southern Christian Leadership Conference, continues to call for a moratorium on the devices, which he equates to instruments of torture.

"Tasers promote lazy policing by officers who are not well-trained or well-supervised," Tatum said. "Police used to take pride in de-escalating a situation. Now, it seems police are creating tensions that escalate situations. We still think Tasers are unconstitutional. And we know that black and brown people are the ones most likely to be Tased."

Marcus Hardin, grandfather of Marcus Swiat, once an advocate of banning Tasers, said he has given up that fight. Hardin's grandson was shocked eight times by a police officer with a Taser on May 24, 2008, according to testimony during his trial on charges of resisting arrest, where he was found not guilty. A municipal judge dismissed a public intoxication charge against Swiat that arose from the same incident in downtown Fort Worth. The fight to ban Tasers was a losing proposition void of a platform to make his case, Hardin said.

"This is an improvement," Hardin said of the X2. "And I'm all for improvement."

Charlotte police find serious problem with new Tasers

December 2, 2011
WBTV

CHARLOTTE, NC (WBTV) - Charlotte police are trying to solve an issue with the department's new tasers.

Officials say the main trigger works fine, but they're concerned about something called the "arc switch," and officers use it to test tasers and to threaten suspects before actually firing.

CMPD bought new tasers after a man died after being tased this past summer.

The new tasers were chosen for the specific reason that they are considered safer -- they stop shocking someone after five seconds.

But CMPD learned the arc switch didn't stop after five seconds, which would completely defeat a key feature of the new tasers.

So they say company Taser International is upgrading software to fix the issue.

Can Tasers kill? I-Team asks Taser CEO tough questions

October 27, 2011
Julie O'Neill, wcpo.com i-team

CINCINNATI - The parents of Everette Howard want to know why their son is dead after being Tasered on UC's campus in August and say they don't want any other parent to have to go through what they're dealing with.

The I-Team went to the heart of the Howard investigation to try to find answers to one key question: Can Tasers kill?

The I-Team traveled to Chicago to speak one-on-one with the CEO of Taser International. We also went to Indianapolis to talk with a prominent cardiologist who's come out swinging against the company concerning its warnings.

At the International Association of Chiefs of Police Conference in Chicago, we caught up with Taser International CEO Rick Smith.

Smith showed us Taser's newest weapon for sale, the X-2. Smith explained to us how the X-2 precisely controls the weapon's electrical current.

"This is measuring the electrical charge of every pulse as it comes out of the device," Smith said.

Smith also says the new Taser includes an option for an automatic shutoff.

"You'll hear it for four seconds, it'll sound an alert then it will shut off, so it alerts the officer then it shuts off and they would have to re-trigger the device at that point in time," said Smith.

The safety advances of the new weapon deal directly with the safety concerns over the one used on UC Upward Bound student Everette Howard before he died in August, and used by police agencies across the Tri-State. It's also the same model weapon involved in the most damaging court ruling against Taser International to date.

This past summer, a jury awarded the family of 17-year-old Darryl Turner $10 million, ruling Taser knew its weapon could kill and didn't tell police.

Dr. Douglas Zipes is an electrophysiologist specializing in heart rhythm. He's published hundreds of articles and won numerous awards for his knowledge of clinical cardiology. The cardioverter he invented is keeping former Vice President Dick Cheney's heart ticking.

Dr. Zipes takes issue with Taser's claims that its weapons cannot cause death.

"Taser has said it can't happen with Taser equipment because the pulses are too short, the energy is insufficient and it can't capture the heart," Dr. Zipes said. "That's absolutely, totally wrong."

In March 2008, court records reveal store clerk Darryl Turner was Tasered for 37 seconds, until he fell, and soon dies. So what caused it??

Dr. Zipes says adrenalin may have already spiked Turner's heart rate, but he says the Taser spiked it beyond what it could handle.

Dr. Zipes explained that where the two Taser darts hit is key.

"So the Taser darts need to in some way span part of the heart or be close enough to the heart so that the electricity traveling between the two darts is able to reach the heart itself and capture the heart."

But that's not the only factor.

"One of the important ingredients as to why somebody dies and somebody else doesn't is the duration of the Taser shock," Dr. Zipes added.

We asked Attorney John Burton, who tried the Turner case, if he thought the officer involved in that Tasering believed Tasers could kill. Burton strongly believes he didn't.

"Oh he absolutely did not know that Tasers could kill," Burton said. "He never would have used the device in such a trivial setting had he understood what the real risks were. That's why the jury did what it did."

Taser International has appealed the Turner decision.

The I-Team asked Rick Smith whether he believes Taser was causal in that death.

"Look, we look at that case and that is one case that certainly is one we're concerned about and that's one of the reasons that we do warn, trying to avoid chest shots," Smith said.

Dr. Zipes says it's tough to prove a Taser-caused a death because a dead body doesn't show the presence of electricity.

"I stumble on why did the sudden death occur exactly when the Taser shocks were going into the body. To say that that's not causily-related I think becomes ridiculous," Zipes said.

Smith questioned Dr. Zipes' motives.

"Maybe we shouldn't talk about a plaintiff's expert that's paid $1,200 an hour to testify against the technology," Smith said.

Dr. Zipes made the following recommendations: "I would argue that Taser number 1 should fess up to the fact that it can produce cardiac arrest, number 2 that law enforcement should be educated to this possibility and that they should not use the Taser weapon in a haphazard freewheeling fashion."

The I-Team asked Smith why Taser doesn't err on the side of caution and say in rare circumstances, in the chest a prolonged shot could increase the risk, and tell departments to make sure officers know this possibility exists and be ready to take medical action.

"We absolutely do that in our training, our warnings you can download them from our website," Smith said.

But when the I-Team checked Taser's website, we found the "Summary Conclusion: Do Taser ECD's affect the heart?" states: "There is no reliable published data that proves Taser ECD's negatively affect the heart."

The I-Team also asked Smith whether he recognizes that in rare circumstances the Taser can affect the heart.

"There's no evidence that supports that it affects the heart in humans," Smith said. "There is evidence that it has happened in pigs."

Yet the I-Team found on Taser's liability release form, under "Known and Potential Side Effects," you'll see listed "heart rate, rhythm capture."

Amnesty International tracks deaths after Taserings. Their latest number: 466 deaths have followed Taserings since 2001. But Amnesty also says a number of these deaths have been attributed to other causes, and what 9 News is hearing from doctors and medical examiners is that it's hard to know definitively in a lot of these cases how much of a role the Taser may have played.

EDITORIAL: Here's key in taser use: police using good rules

September 28, 2011
The Charlotte Observer

We don't argue with the idea that Charlotte-Mecklenburg police officers should be armed with the safest weapons available. So in that sense, the Charlotte City Council's decision to buy new Tasers that prevent officers from firing high voltages of electricity for more than five seconds at a pop makes sense.

But this move does not end concerns over the use of Tasers, associated with the deaths of two suspects in Charlotte in the past three years. These are not truly the "non-lethal" weapons that they are so frequently advertised to be.

Amnesty International says Tasers contributed to about 351 U.S. deaths between 2002 and 2008. The group also says 90 percent of those tasered were unarmed at the time.

Taser International, which provides most such weapons (and the company supplying the guns to the CMPD), points to a different view in a May study by the National Institute of Justice. In a look at Taser use by six police departments nationwide over a two-year period, the institute's researchers found 99.7 percent of those tasered suffered no serious injuries. Their conclusion: "The risk of human death due directly or primarily to the electrical effects of [Tasers] has not been conclusively demonstrated."

It's hard to reconcile those views. Yet even the study provides fodder for concerns. "Risk of human death ... not conclusively demonstrated" is not the same as no risk. And the study says data have shown significant health risks when Tasers are used against small children, people with diseased hearts, the elderly, those who are pregnant and some others. Researchers also acknowledged that many of the deaths after Taser exposure "are associated with continuous or repeated discharge of the CED..., especially when the individual may be under drug intoxication."

These are crucial caveats. In the March 2008 death of 17-year-old Darryl Turner, a CMPD officer tasered the teen for 37 seconds, a violation of police policy. The city paid the family $625,000 as a result, but admitted no wrongdoing. A federal jury ordered Taser International this summer to pay $10 million to the family. The company said it will appeal but in 2009 it released an advisory urging police not to shoot suspects in the chest, where Turner was shot. It also began pushing a version of its gun that allows only five seconds of current before officers can fire again.

The model the council agreed to has that feature and other safety measures including an audible "pre-warning" that the device is about to be used, said CMPD chief Rodney Monroe. Taser officials tout other benefits including the ability to fire a second time quickly without reloading.

Such features are welcome but they remain no substitute for officers having and following good guidelines about the use of these devices. In the past, that has been a problem for CMPD - and a costly one. If the officer in the Turner case had followed policy, the teen might be alive, the city wouldn't have had to shell out $625,000 to a grieving family, and the council might not be approving $1.83 million for new Tasers. That last cost is acknowledgment that officers could not be depended upon to abide by a policy of not tasering suspects past five seconds, the limit on a Taser blast unless the trigger is held down.

This move won't force officers to show good judgment and abide by strong guidelines. The new Taser allows more blasts in the Taser's battery life, and two blasts in quick succession. Studies show multiple Taser shots pose health risks even in healthy adults.

Tasers have been welcome tools to police officers in protecting the public, suspects and themselves. They have helped reduce the numbers of lethal incidents in which an officer is forced to discharge a gun. But Tasers carry dangers that should not be ignored. Training, officers following sound guidelines and vigilance about health risks are crucial to helping ensure tragedy does not result from Taser use.

Council approves $1.8M in new Tasers for CMPD

September 27, 2011
WSOCTV.com

CHARLOTTE, N.C. -- Charlotte-Mecklenburg police are getting new, and supposedly safer, Tasers. Although the non-lethal tools have been the focus of controversy over the past few months, police are confident Tasers are not a problem. Just to be safe, they asked city council for $1.8 million to buy the new models.

The X2 version has several new safety features. The shock only lasts five seconds no matter how long the officer holds the trigger. The amount of electricity is now more exact.

Police Chief Rodney Monroe said these new Tasers are the top of the line models. "We don't believe that there is a better model out there," he told council members.

Those safety features could have meant the difference between life and death in 2008 when Darryl Turner died after being shocked by a police-issue Taser, and again two months ago when La'Reko Williams died. Williams' family made an appearance at the meeting Monday night, wearing shirts memorializing the 21-year-old man, but did not speak about the new Tasers.

The lawyer Charles Everage said the council should not have voted on the Taser deal until it figured out why WIlliams died from the shock. "We're not here to express any emotion about it," he said.

Police haven’t been allowed to use their Tasers since Williams died. The weapons have been in a state of review and testing and the department have been reviewing their policies for using Tasers. In fact, for the first time, CMPD officials said officers have deployed Tasers 760 times since 2004.

Police said those are time officers may have been forced to draw their guns instead, but they did not say how many of those suspects were seriously injured.

In light of the new X2 model Tasers, only one Charlotte resident spoke out about the weapons being added to officers' arsenal.

"If they're going to use these instruments that do cause devastation and it does cause death, they should be better trained," he said.

Cardiologists at Presbyterian Hospital in uptown Charlotte said any Taser can be dangerous, regardless of the safety mechanisms built into them because all Tasers hit suspects with thousands of volts of electricity.

"There are plenty of average, healthy people that in very unique situations can have weird electrical cardiac events," said Cardiologist Kevin Sharkey. "You've seen people on the basketball court collapse and die from an arythmia they didn't know they had."

Police have not said when officers will get the new Tasers. Even when they do, they may not use them right away because officers may need new training.

Taser prepares to launch new X2 stun gun

April 18, 2011
Phoenix Business Journal

Taser International Inc. is preparing to launch a new stun gun, the X2, this week.

The company will make the announcement on the product, said to be about the size of its current X26 device, on Wednesday morning.

Officials with Scottsdale-based Taser (Nasdaq: TASR) said the device was the result of consulting with its customers about what they were seeking in a stun gun.

“Thousands of officers participated in the design of the X2 through online surveys, interviews, and focus groups,” said Rick Smith, founder and CEO of Taser, in a statement. “The result is a breakthrough device that integrates key features into a simple, compact design optimized for full-time carry. We look forward to sharing the X2 with the world this Wednesday.”

Taser has been rolling out various new products over the past 18 months with mixed results. It is starting to see some traction with its Axon system that acts as a recording device for law enforcement, but its X3, a three-shot stun gun, has yet to see large orders.