Junk Science and Excited Delirium
Causation is one of law's slippier topics. Just because one event occurs after
a prior event does not mean that there is a causal relationship between the two. Post hoc ergo proctor hoc is the Latin term for dispensing with such loose associations. The law sometimes relies on scientific experts to discern when events are causally related. Bitter courtroom battles often turn on questions of causation.
One of the most bizarre of these battles is the dispute over whether Taser's cause death. Taser International Inc. claims the devices do not. When folks die after being zapped by these high-voltage devices, the industry claims the cause is something called "excited delirium." This delirium, of unknown etiology, mind you, operates as a superceding intervening cause, thus shielding the manufacturer and cops from liability for causing death.
But there is something slippery about the logic of this argument. According to the Taser makers, the devices do not kill. But Amnesty International has compiled data indicating that 334 people have died after being stunned since 2001. In 69 of these cases, the cause of death has been listed on autopsies as "excited delirium."
A recent article in the March/April 2009 issue of Mother Jones
puts the status of the taser wars in perspective. It reports that Taser International Inc. has twice sued medical examiners who found that a Taser caused death. To date, the industry has lost only one wrongful death action involving Tasers out of 33 filed against it, and that case is on appeal.
Apparently, excited delirium is a loose diagnosis, covering everything from behavior caused by drinking too much, being mentally ill, an infection of the brain and even being hypoglycemic. It is a convenient diagnosis that explains everything and, consequently, nothing at all. The diagnosis was first used in medical documents in the nineteenth century to explain mysterious deaths in asylums. The diagnosis still exists, now cloaked in the expensive wrappings of junk science bought and paid for by Taser proponents.
Our firm just received a report from law enforcement officers involving the death of a young man after being zapped. He had a long history of mental illness. He died after police zapped him. They were present at his home after a noise complaint. The family is distraught and wants justice. I am at once struck by the medical examiner's conclusion that excited delirium caused the death.
A footnote in the state's attorney's report on the death suggess that it is time for another Taser challenge. "Excited delirium is not a medical diagnosis, but a term describing people who might have psychosis or drug intoxication. ... [Conductive Energy Devices] may increase the risk of sudden death in cases of excited delirium,... Everything that happens to a person that causes excited delirium and stresses a person in excited delirium may be a contributing factor in his or death..." This according to the U.S. Department of Justice, National Institute of Justice, in an interim report on stun gun safety issued in October 2008.
Here's my take. The world is filled with folks who suffer mental illness, hypoglycemia and intoxication. These folks are excitable. Confrontations with police can cause people to fly off the handle. When police see such conduct they should not use a Taser. It appears that there is a growing recognition that such folks can killed with a jolt of electricity. Hence, other means of force should be used that do not carry a risk of death. We don't hold a person blameless who is stung after placing his hand into the hive of angered bees. Why should we excuse cops who do likewise? Or is it safe to light a match while pumping gas?
It seems simple enough, doesn't it? I am debating whether to raise this claim in a federal court. In fact, I find the claim irresistable. I wonder whether the industry can defend itself without reliance on the very sort of junk science the National Academy of Science just condemned. And, alas, I wonder whether a small firm can afford to take on an industry.