A divided Fourth Circuit Court of Appeals panel has upheld a jury’s determination that Taser International, Inc. was liable for the death of a young man who experienced cardiac arrest after an employment dispute escalated and police used a taser to subdue him, but remanded the matter to the trial court for a new trial on damages. Fontenot v. Taser Int’l, Inc., No. 12-1617 (4th Cir., decided November 22, 2013). The court found that the trial court properly barred the company’s contributory negligence defense, ruling that under North Carolina law it is the claimant’s alleged negligent use of a product that allows the doctrine to apply. Here, the police, and not the decedent, used the taser, and the court noted that if the company’s interpretation of the law were correct, anyone injured in a taser incident in the state would have no remedy, because tasers are generally not used unless a suspect is resisting arrest.The court also ruled that the evidence was sufficient to show that if the company had provided an adequate warning about the risk of cardiac arrest, the police would have heeded the warning and not deployed the taser as it did in this case.
 
As for the company’s warning that the taser not be discharged in a “prolonged” or “continuous” manner at the risk of impaired breathing, the court found these terms vague without further clarification and that the company failed to warn about the risk which harmed the plaintiff’s decedent—cardiac arrest.
 
The court agreed with the company that the $5.5-million damage award was excessive, determining that the plaintiff, who was the decedent’s mother, “failed to present any evidence showing that [the decedent’s] services, care, and companionship had a value approaching $1000-$2000 per week per parent.” A dissenting judge would have applied North Carolina’s contributory-negligence statute, finding that it was not limited to those cases in which the claimant uses the purportedly defective product.