Fontenot v. Taser Int'l, Inc.

• Decision Date: 22 November 2013
• Docket Number: No. 12–1617.,12–1617.
• Citation: 736 F.3d 318
• Parties: Tammy Lou FONTENOT, as Administratrix of the Estate of Darryl Wayne Turner, Plaintiff–Appellee, and Devoid Turner, Plaintiff, v. TASER INTERNATIONAL, INC., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

736 F.3d 318

Tammy Lou FONTENOT, as Administratrix of the Estate of Darryl Wayne Turner, Plaintiff–Appellee,andDevoid Turner, Plaintiff,

v.TASER INTERNATIONAL, INC., Defendant–Appellant.

No. 12–1617.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 19, 2013.

Decided: Nov. 22, 2013.

ARGUED:Pamela B. Petersen, Taser International, Inc., Scottsdale, Arizona, for Appellant. John Christopher Burton, Law Offices of John Burton, Pasadena, California, for Appellee. ON BRIEF:John R. Maley, Barnes & Thornburg LLP, Indianapolis, Indiana; Scott D. MacLatchie, Womble Carlyle Sandridge & Rice, Charlotte, North Carolina, for Appellant. Charles A. Everage, Everage Law Firm, PLLC, Charlotte, North Carolina; Peter T. Cathcart, John F. Baker, Magaña, Cathcart & McCarthy, Los Angeles, California; Kenneth L. Harris, Ken Harris & Associates, PA, Charlotte, North Carolina; Peter M. Williamson, Williamson Law Firm, Woodland Hills, California, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the majority opinion, in which Judge MOTZ joined. Chief Judge TRAXLER wrote a dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

Darryl Wayne Turner, age seventeen, died from cardiac arrest after a confrontation with police in which he was struck in the chest by electrical current emitted from a device commonly known as a “taser,” manufactured by TASER International, Inc. (TI). The police officer who discharged the taser aimed the device at Turner's chest based on training provided by the Charlotte Mecklenburg Police Department (CMPD or the department), which used instructional materials supplied by TI.

The particular taser employed in the incident, the Model X26 device (X26 taser), had been the subject of several academic studies. TI knew about these studies, in which researchers had concluded that the device posed a risk of ventricular fibrillation, a cause of cardiac arrest, especially when the electrical current from the taser was applied near the subject's heart. Nevertheless, TI failed to warn taser users to avoid deploying the taser's electrical current in proximity to the heart.

Tammy Lou Fontenot, Turner's mother and the administrator of his estate, initiated a product liability action against TI in a North Carolina state court. In the complaint, Fontenot alleged that TI negligently failed to warn users of the risk posed by the X26 taser and, in particular, to warn them to avoid applying the taser's electrical current near a subject's heart. She further alleged that TI's negligence was the proximate cause of Turner's death. A jury found in Fontenot's favor, awarding her $10 million in compensatory damages, which amount the district court remitted to about $6.15 million before deducting certain offset amounts received by Fontenot, resulting in a final award of about $5.5 million.

In this appeal, TI raises several arguments, including that the district court erred in barring from the jury's consideration TI's defense that Turner was contributorily negligent by engaging in the dispute and in refusing to comply with the police officer's directives. TI also contends that the damages award, even as remitted, is not supported by the evidence. Upon our review, we hold that the district court did not err in entering judgment in favor of Fontenot on the liability aspect of the negligence claim in accordance with the jury's verdict. However, we also hold that the damages award is not supported by the evidence, and we remand the matter to the district court for a new trial limited to that issue. Accordingly, we affirm the district court's judgment in part, vacate it in part, and remand the matter for further proceedings with respect to damages.

I.

A.

Turner was an employee of a Food Lion supermarket located in Charlotte, North Carolina, where he had worked for about a year. On March 20, 2008, Turner was confronted by a Food Lion loss prevention investigator after Mary Blackert, one of Turner's supervisors, “reported” Turner for eating a convenience food item and drinking a bottle of water that he had obtained from the store. Turner admitted that he had consumed those items without paying for them, and he was allowed to return to work while his supervisors discussed the matter.

After eating lunch at his home, Turner returned to the supermarket dressed in a manner that did not comply with the store's employee dress code. Blackert told Turner to “clock out and to get himself together.” Turner refused, using profanity addressed to Blackert.

Blackert contacted the store manager, who instructed Blackert to terminate Turner's employment for insubordination. When Blackert informed Turner that he was fired, Turner refused to leave the store and continued arguing with her. Thereafter, Blackert placed a telephone call to a 911 operator and requested police assistance in removing Turner from the supermarket. During the entire incident, Turner acted in an aggressive manner and argued loudly with Blackert and the store manager. Turner also threw an umbrella and pushed a store display off a counter, but he did not make physical contact with anyone during the dispute.

CMPD Officer Jerry Dawson arrived at the Food Lion in response to Blackert's request for assistance. Upon entering the store, Officer Dawson heard yelling and cursing. He removed his X26 taser from its holster while approaching Turner, who continued to argue with his supervisors. Officer Dawson instructed Turner to “calm down,” but Turner continued behaving in an aggressive manner. Officer Dawson aimed the taser's red “laser dot” at Turner's chest, the location where Officer Dawson had been trained to aim. When Turner stepped toward Officer Dawson, he deployed the taser on Turner.

The X26 taser, which is shaped like a pistol, discharges two darts, one above the other, from a cartridge attached to the front of the device when its trigger is pulled.¹ One dart struck Turner in the center of his chest, very close to his heart, and the other dart struck him near his ribcage. Because the taser is designed to incapacitate an individual by causing that person's muscles to “lock up,” Officer Dawson expected Turner to collapse, but Turner stayed on his feet and walked toward the store's exit while the taser's darts continued delivering an electrical current. Officer Dawson followed Turner as he walked with the taser's darts still attached to his body, instructing Turner to “get down.” During this period, Officer Dawson 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. Officer Dawson discharged his taser on Turner for an additional five seconds because Turner did not comply with commands to put his hands behind his back after he had fallen to the ground.

When firefighters and paramedics arrived at the supermarket, they observed that Turner was experiencing ventricular fibrillation and was unresponsive. ² The rescue team performed CPR and defibrillation on Turner but, despite these efforts, Turner was pronounced dead after being taken to a hospital.³

B.

TI primarily markets and sells its conducted electrical weapons products, including the X26 taser, to law enforcement agencies. One such law-enforcement purchaser of the X26 taser was the CMPD, which purchased X26 tasers for use by all the officers in the department.

From the introduction of the X26 taser in 2003, through the events at issue in this case, TI instructed taser users that the electrical current emitted by the X26 taser had no effect on heart rhythm when tested on animals. Captain Michael Campagna, who administered the CMPD's taser training program, received training from TI that use of the taser could not cause fibrillation of the human heart or cardiac arrest. TI also provided Captain Campagna and other users an “instructor's note” stating that even when “[t]he X26 was applied across the chest with the two probes in a ‘worst case’ scenario (the points most likely to stimulate the heart) ... the heart beat continues normally.... It is important to note that the heart rate does not change at all.”

Captain Campagna used this information and other material provided by TI to train CMPD officers, including Officer Dawson, on use of the X26 taser. Officer Dawson recalled that the training materials provided by TI stated that application of the X26 taser had no effect on a subject's heart rates.

TI also provided Captain Campagna other training materials, which instructed users of the X26 taser to aim for the “center of mass,” and used visual depictions of the taser's darts being fired at the middle of a person's chest. Based on this information, Officer Dawson and other CMPD officers were trained to aim the taser at a suspect's chest. Officer Dawson testified that, therefore, he had no reason to think that the act of firing the X26 taser at Turner's chest was more dangerous than aiming the device elsewhere, or that using the device in that manner could cause significant cardiac injury or death.⁴

As relevant to this case, the primary warning that TI provided to users of the X26 taser was included as part of the “TASER International Training Bulletin 12.0–04,” which TI issued in June 2005. In that document, TI cautioned that “[r]epeated, prolonged, and/or continuous exposure(s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm. Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable....” (Emphasis added.) Notably, this TI Training Bulletin, which the CMPD provided to its officers, discussed only the potential for respiratory harm, rather than the risk of severe cardiac problems,...