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Special Report: How Taser inserts itself into investigations involving its weapons
August 24, 2017 / 11:20 AM / a month ago

Special Report: How Taser inserts itself into investigations involving its weapons

MIAMI BEACH, Florida (Reuters) - With a police officer close behind, Israel Hernandez-Llach ducked into an apartment building and dashed down the hall. Bursting through a rear exit, he scrambled over an iron fence, landing hard on a parked car, and sprinted across the parking lot.

“That’s the guy! That’s the guy!” shouted Thomas Lincoln, one of seven Miami Beach police officers chasing the 18-year-old graffiti artist. The teen had been spotted spray-painting the blackened windows of an abandoned McDonald’s.

Within seconds, Officer Jorge Mercado caught up with him, drew his Taser and fired a single shot to the chest. The recent high school grad and aspiring art teacher collapsed on the sidewalk in cardiac arrest. The chase lasted six minutes. It was 5:20 a.m. on Aug. 6, 2013. At 6:18 a.m., he was pronounced dead.

Four hours later, the Miami Beach Police Department received an email from stun-gun manufacturer Taser International Inc.

The message, marked “confidential” and not previously reported, provided guidance on how investigators should proceed, from collecting hair and nail samples to recording the teen’s body temperature and documenting his behavior before he was stunned. It included a sample press release and an “evidence collection checklist.”

In bold letters, marked “TIMELY AND URGENT,” the dispatch advised Miami’s medical examiner to send the teen’s brain tissue for testing to Deborah Mash, a University of Miami medical researcher. It did not mention Mash had been paid by Taser to testify on its behalf in lawsuits against the company.

Taser’s email to investigators is a telling snapshot of how the company blurs the lines between its corporate interests, police affairs and scientific research, often enmeshing itself in investigations where its stun guns may be implicated in deaths.

“From the minute they find out someone dies, they’re doing everything they can behind the scenes to set up” a legal defense “so the case goes away,” said lawyer Todd Falzone, representing the Hernandez-Llach family in a liability suit.

For more than a decade, Taser has defended its signature weapon by leveraging close ties with police and other professionals, court records show. It has spent millions of dollars commissioning research on its weapons, much of it backing the company’s contention that its stun guns are blameless in deaths or injuries. It regularly hires medical and scientific experts who vouch for the safety of the electroshock devices in court or in published studies. And it cultivates ties with medical examiners, the professionals who decide whether or not a Taser shock is to blame in a fatality.

The result is a thicket of intersecting relationships among police, coroners and a wide network of scientists the company taps, a Reuters examination of hundreds of wrongful death lawsuits and interviews with lawyers for both plaintiffs and police found.

(To see interactive graphic, The Taser Alerts, click here: tmsnrt.rs/2txkK9U)

Taser’s links to these experts are not always clear.

In the Hernandez-Llach case, Miami-Dade County Associate Medical Examiner Mark Shuman told Reuters he was unaware of the prior relationship between Taser and Miami scientist Mash when he sent the teen’s brain tissue to her lab for tests. Taser paid Mash around $24,000 for expert testimony in eight lawsuits filed from 2005 to 2009, court records show.

Steve Tuttle, Taser’s vice president of communications, said it was not the company’s responsibility to tell Shuman or the police that Taser had paid Mash for expert testimony in lawsuits.

“Why would I tell them something that’s a legal matter? I’m not a lawyer,” Tuttle said. Taser described Mash as a “respected, independent expert.”

Pressed on why Taser never informed Miami Beach Police about Mash’s previous payments from the company, Tuttle said: “I think that’s a great question,” and referred reporters to Mash and the University of Miami.

Mash declined to comment. The university said Mash disclosed her work for Taser to the school and that her analysis of the brain samples from Hernandez-Llach was done in her academic capacity. “As is common practice, Dr. Mash has been paid for her time and travel expenses for depositions and court appearances,” said spokeswoman Lisa Worley.

‘THE BEST AVAILABLE EVIDENCE’

The company, which in April changed its name to Axon Enterprise Inc, has an obvious stake in establishing the safety of its weapons.

Reuters documented 1,005 incidents in the United States in which people died after police stunned them with Tasers, nearly all since the early 2000s and typically in incidents that also involved other force, from chokeholds to beatings.

Taser aims to ensure that investigators gather “the best available evidence” in cases where people are hurt or die in police encounters involving its weapons, said Tuttle. Similarly, when Taser provides scientific information to medical examiners and other officials, he said, it’s because “these are things that an outside investigating agency needs to see.”

Taser International said the overwhelming majority of people who died after being stunned were killed by underlying health conditions, drug use or other police force.

Though the company has warned since 2009 that a shock to the chest can affect heart function, it says no one has died from Taser-induced cardiac arrest. It asserts its weapons have been a factor in just 24 deaths, always as a result of secondary injuries, such as head injuries from falls after someone was stunned.

Yet Reuters found that coroners or medical examiners listed the Taser as a cause or contributing factor in at least 153 deaths in police incidents where the weapon was used.

Medical examiners who pin deaths on Tasers often don’t understand the underlying science, the company said. When examiners attribute a cardiac death directly to a Taser’s electrical shock, “they are ignoring their own textbooks,” Tuttle said.

In most cases, shocks from Tasers are not listed by medical examiners as a primary cause of death – drugs, mental health issues and other medical conditions are, records show. In defending its stun gun, the manufacturer often points to those factors, including a condition at the center of a medical debate: “excited delirium.”

In the hours after Israel Hernandez-Llach died, Taser’s Tuttle told Miami Beach police it was “critical” that the medical examiner send samples of the teen’s perishable brain tissue to Mash. “It’s imperative,” he wrote in one email, underlining the sentence. “The brain tissues must be collected ASAP.”

Mash runs a brain endowment bank that archives frozen specimens and conducts a neurochemical test for signs of excited delirium – a condition said to be characterized by an irrational rage induced by drugs or mental illness that can end in sudden death.

People in its grip often feel little pain, act violently and have extraordinary strength; the heart races wildly and suddenly gives out. Taser CEO Rick Smith has said a “significant majority” of deaths associated with Taser shocks are due to excited delirium, chronic drug use or other conditions. Smith declined interview requests from Reuters.

In fact, excited delirium has been listed as a factor in autopsy reports, court records or other sources in at least 276 deaths that followed Taser use since 2000, Reuters found.

And in at least 30 of 128 lawsuits against the company, the condition was cited as a factor, either by Taser, its expert witnesses or municipalities whose police used the weapon. In all but one of those cases, Taser’s defense prevailed, Reuters found, with excited delirium often one plank in the winning legal argument.

Some medical experts, however, question whether the condition even exists.

“It is a fictitious term,” said Werner Spitz, a forensic pathologist who has testified on behalf of families of people killed in incidents involving Tasers. “It doesn’t cause death.”

Medical references to conditions akin to excited delirium date to 1849, when Luther Bell, a mental hospital superintendent, documented patients dying in violent convulsions after a wild, often-hallucinogenic mania. But “Bell’s Mania” syndrome got little attention until the 1980s. That’s when Charles Wetli, a forensic pathologist then working in Miami-Dade County, and a colleague used the term “excited delirium” to explain sudden deaths among cocaine users.

In an interview, Wetli said he was approached by Taser more than a decade ago and has been retained as the company’s expert witness in more than a dozen lawsuits. Mash trained under Wetli, calling him a “mentor,” according to court documents.

Wetli said excited delirium is a genuine condition and that the “vast majority” of deaths involving Tasers he studied were caused by it.

“I’ve never seen a case where I could say that a Taser actually contributed to the death,” he said. “As far as interfering with the heart rhythm,” he added, “there’s never been any convincing evidence that that can actually take place.”

Spitz, whose resume includes testifying in the O.J. Simpson civil trial and reviewing autopsies of President John F. Kennedy, disagrees. “If you fire a Taser into the pre-cordial area, where the heart is, whether the front or back, the electric current may very well interfere with the electrical impulses that go to the heart,” he said.

In an email to Reuters, Taser said excited delirium is a “universally recognized condition,” citing its recognition by the American College of Emergency Physicians and Britain’s Royal College of Emergency Medicine.

The World Health Organization does not recognize it. The American Medical Association and the National Association of Medical Examiners say they have no official position on it. Nor does the American Psychological Association. The European Society for Emergency Medicine, representing physicians in 30 countries, has no policy.

Shuman, the Miami-Dade medical examiner, said he has worked with Mash for years, sending her brain tissue in deaths that might be explained by excited delirium. Between 2008 and Hernandez-Llach’s death in 2013, at least four other people died in Miami-Dade County in police encounters with Tasers. Shuman’s office attributed all four deaths to excited delirium.

This case was different.

Shuman sent brain tissue from Hernandez-Llach to Mash’s lab a day after the teen died, he said, but didn’t expect she would find evidence of the condition. Police reports did not describe Hernandez-Llach as showing irrational behavior. And although there were faint traces of marijuana and a synthetic drug in his system, Shuman’s autopsy turned up no medical evidence to suggest he suffered excited delirium.

Mash came to a different conclusion, finding that Hernandez-Llach’s brain showed “biomarkers consistent with excited delirium syndrome,” state records show.

“The fact that she came back with a positive surprised me, but I just ignored it because he was not showing signs of excited delirium,” Shuman said.

He ruled instead that Hernandez-Llach died from sudden cardiac arrest due to the Taser discharge. It was the first known death in Florida ever directly attributed to the stun gun – a potential blow to Taser’s longtime argument that its weapons do not cause cardiac deaths in otherwise healthy people.

Still, Florida Department of Law Enforcement special agents interviewed Mash and included her findings on excited delirium in an investigation into the death, according to state files reviewed by Reuters. At the time the FDLE investigators compiled their report, they were unaware of Mash’s relationship with Taser, a department spokeswoman said.

The investigators sent their report to Miami-Dade State Attorney Katherine Rundle. Her office decided not to prosecute Officer Mercado, who fired the Taser. In a statement to Reuters, Rundle’s office said, “We had some awareness that Dr. Mash had a relationship to Taser,” but Mash’s findings “played no part in the determination of the cause of death.”

Felix Fernandez, a friend of Hernandez-Llach’s who witnessed the teen’s death, questioned how someone paid previously by Taser could have any role in the state probe. “I mean, how can you trust someone” in that situation, he asked.

Charles Rosen, president of the Association for Medical Ethics, said Mash should have disclosed her paid testimony to authorities involved in the autopsy because it had the potential to affect Taser’s revenue.

The University of Miami said Taser’s past payments to Mash were only for her testimony on excited delirium, not on the safety of its weapons. Mash “has never received funding from Taser for her research,” said spokeswoman Worley.

In the end, no one was charged in the death because of the way Florida, like some other states, categorizes Tasers – as a “less lethal” form of police force. Under state law, officers cannot be held liable for deaths from the weapons if they are used “in good faith” and within the scope of official duties.

Thus Mercado could have had “no reasonable expectation” his Taser shot would prove fatal, medical examiner Shuman’s autopsy said. As a result, Shuman ruled Hernandez-Llach’s death to be an accident.

The ruling triggered local protests over police force and inspired street-side murals in homage to the teenager known as “Reefa,” who told friends he wanted to teach art.

The Taser X26P gun is shown by a sales person to an attendee in the Taser booth at the International Association of Chiefs of Police conference in San Diego, California, U.S. October 17, 2016. REUTERS/Mike Blake/Files

“The moment that they said he died, I went to the bathroom and just melted,” said his sister Offir, 25.

The family’s suit against the city is moving forward. A Miami Beach Police spokesman declined to comment. The case against Taser has been resolved, family attorney Falzone said. He declined to comment on whether there was a settlement.

LAW ENFORCEMENT LINKS

The Miami case underlines Taser’s deep relationships with the police and medical communities. In court papers, the company has acknowledged sending a “checklist for responding to an in-custody death” as a matter of standard procedure. The list includes “suggestions” on tests to conduct and evidence to collect, “such as hair samples that would document whether or not there had been chronic drug use.”

“If a critical event transpires while using one of our devices, Taser International will be your partner and advocate, providing assistance in its investigation,” the company’s website advised clients until recently. It offered police agencies a “detailed technical expert analysis” with data and video.

Taser’s bonds with police are bolstered by its network of more than 800 certified “master instructors.” Taser calls these officers “independent professional trainers” who “serve as local area TASER experts, and assist in conducting TASER demonstrations at other police departments.” Taser pays them an undisclosed fee for the demonstrations.

Among the instructors is Daniel Morgalo, a Miami Beach lieutenant who said he learned of Hernandez-Llach’s death at about 7 a.m. that morning. Within eight minutes, Morgalo called Tuttle, Taser’s head of communications, court records show.

The call went to voicemail, Morgalo testified. But the two spoke by 10:30 a.m., he said. In the intervening hours Morgalo helped collect forensic evidence from the Taser discharge on site, court records show.

As a master instructor, Morgalo said, he had been told by Taser to notify the company and seek its guidance after a stun-gun-related death.

During litigation, he faced questions from the plaintiffs over potential conflicts of interest between his police duties and his work assisting a company whose product could be implicated in the case.

“Do you understand that they have an interest in defending or otherwise – well, in defending any kind of claims that their device might be dangerous?” the family’s lawyer, Falzone, asked the officer.

“Yes, sir,” replied Morgalo.

In the same deposition, given in April 2016, Morgalo was asked by the family’s lawyer if he saw any conflict of interest in Taser’s request to send the brain tissue to Mash, considering her prior paid work for Taser.

“I would acknowledge that yes, there appears to be a conflict,” he said.

Miami Beach police said Morgalo could not comment, citing ongoing litigation.

EXPERTS AND DISCLOSURE

Taser’s police ties are part of its broader effort to shape the discussion of its weapons’ role in any deaths. The company calls its stun guns “the most studied” of all police weapons besides firearms. A good portion of this research is financially backed by Taser.

On its website, Taser posts an index of 745 studies, articles, presentations, letters and other published material on its stun guns’ safety. Taser identifies at least 151 of those reviews – 20 percent – as being funded wholly or partly by the company. Reuters found 72 more research documents on the list in which at least one author had been paid by Taser as an employee or consultant. Adding those, Taser has financial ties with nearly 30 percent of the research it cites.

Slideshow (5 Images)

Taser promotes this research in conferences and programs, some hosted free at its Scottsdale, Arizona, headquarters.

“We feel that better training on this topic saves lives,” CEO Smith said in 2007 court testimony, referring to Taser-sponsored police training on excited delirium.

Taser often offers its experts’ help to police immediately after a death. Prominent among them is Jeffrey Ho, a Minneapolis emergency physician and Taser’s contract medical director since 2009.

After Hernandez-Llach’s death, in addition to instructing Miami Beach police to send brain tissue to Mash, Tuttle offered Ho’s assistance “as an expert on Taser safety and research,” copying him on the message.

Ho has been a company consultant since 2004 and has written scores of studies, presentations and papers on Tasers. He has spoken out against reports suggesting multiple Taser shocks can be dangerous.

In 2015-2016, Taser paid his employer, Hennepin County Medical Center, nearly $250,000 to help fund his position and reserve a portion of his time for Taser research, the center told Reuters. Under that deal, Ho spends 300 or more hours a year on Taser-related work, according to court testimony from Ho in 2008. The company also has paid him as much as $70,000 a year for “outside work,” such as lawsuit testimony, court records show.

“I have always and continue to declare any potential conflicts of interest,” Ho told Reuters.

Tasers occupy a gray area in medical research. Journals typically require authors to reveal any ties to the makers of any medical device or drug they write about. But Tasers are not designed for medical purposes, so research around them isn’t necessarily held to the same academic rules.

Ho served with Mash and another Taser consultant on a 19-member task force that prepared an influential 2009 white paper on excited delirium for the American College of Emergency Physicians, representing 31,000 doctors. The paper described the condition as “a real syndrome of uncertain etiology,” or cause.

The white paper did not note the trio’s links with Taser. Disclosures were not required until 2011 for the group’s task forces, said ACEP spokeswoman Julie Lloyd.

The paper remains influential: The U.S. Federal Bureau of Investigation cited it in a July 2014 summary of excited delirium, the condition Taser often blames for stun-gun-related deaths.

‘TASER THERAPY’

Nobody has a bigger say in deciding when a death is linked to a Taser than local medical examiners. They are a chief target audience for Taser-funded research.

Taser has sent coroners and investigators packages of 80 to 100 studies, many funded by the company, court documents show. It has promoted awareness of excited delirium, sending hundreds of pamphlets a year to medical examiners explaining how to detect the condition, and spending “tens of thousands” annually to send examiners to conferences where it is discussed, CEO Smith has testified.

The company also strikes alliances with individual examiners.

Michael Graham, president of the National Association of Medical Examiners in 2005, was approached by Taser in 2007. The chief medical examiner for St. Louis and professor of pathology at Saint Louis University agreed to be a paid Taser consultant and still receives an annual stipend, he said.

Taser wanted to educate medical examiners about the physiological effects of its weapons and rebut criticism running “contrary to the science,” Graham said.

Presenters at the 2014 meeting of the medical examiners association included Mark Kroll, a bioelectricity scientist, University of Minnesota professor and member of Taser’s corporate board since 2003. Kroll, who disclosed his tie, was part of a presentation that noted Tasers satisfy “all relevant safety standards” and counseled medical examiners to lean toward excluding the weapons as a cause of death.

There are, however, no federal safety regulations for stun guns used by police.

In 2008, Kroll likened Tasers to therapy for people gripped by excited delirium.

“If you start exhibiting excited delirium behavior and you are in the terminal throes of death, and you are so bizarre you can’t be controlled anyplace else, you will receive Taser therapy,” he testified as an expert for Taser in a wrongful death suit. “They need to be brought under control so their lives can be saved.”

Kroll is a member of Taser’s scientific and medical advisory board. In 2016, he earned $267,000 from Taser, the company’s annual report shows, and owned about $1 million in company stock in March.

In an email, Kroll said his affiliation with Taser did not bias his research.

“Due to this well-known relationship, I was motivated to be very careful to be extremely accurate and objective,” he said.

A WINNING ARGUMENT

Like many companies, Taser also pushes to keep contrary expert opinions out of the courtroom.

That’s what happened when the mother of David Glowczenski, 35, sued Taser and the village of Southampton, New York, in 2004.

One February morning, she called police because her son, a schizophrenic struggling with substance abuse, was having a “psychotic episode” and needed to be hospitalized. When police arrived, Glowczenski was in the street, “screaming incoherently” and holding a Bible and a book about the Grateful Dead.

As officers tried to restrain him, Glowczenski kicked and screamed. One wrestled him to the ground; another stunned him at least nine times with his Taser, pressing its electric contacts directly against his flesh, the lawsuit said. He was handcuffed and his legs were zip-tied as a 270-pound officer pressed him into the ground and another blasted him with pepper spray, according to the lawsuit. Glowczenski went into cardiac arrest and died almost immediately.

Southampton blamed the death on a combination of Glowczenski’s mental health disorder and his violent resistance. The family’s lawyers said that the Taser shocks, combined with Glowczenski’s inability to breathe with an officer on his back, caused “metabolic acidosis,” a condition that can raise heart attack risks.

Fred Brewington, the family’s attorney, likened the series of jolts to “an extreme roller-coaster ride at its highest and most difficult pinnacle, the portion that takes your breath away – and then do that five, six, seven times, repeatedly, every six seconds.”

Taser persuaded a judge to exclude a medical examiner and pathologist with 25 years’ experience whose testimony was central to the family’s case, arguing that it was “unqualified, unsupported and unreliable.” Backed by a half-dozen experts, Taser asserted there was no medical certainty its guns’ shocks caused acidosis. The death was “natural” and attributable to excited delirium, Taser argued.

The company had help from the Suffolk County medical examiner. The post was then held by Charles Wetli – the man who had revived the excited delirium theory to explain Miami cocaine deaths decades earlier.

At Wetli’s direction, the coroner on the case – his deputy – sent Glowczenski’s brain samples to Mash at the University of Miami. Mash found evidence of “exhaustive mania,” a form of excited delirium said to occur when drugs are not present.

In his autopsy report, the coroner echoed Mash’s findings. The Glowczenski family’s lawyers called the concept of excited delirium a “sham.”

The defense prevailed: In 2013, Judge William Wall dismissed Taser from the case, finding “no admissible evidence” the stun gun killed Glowczenski.

Now, just one defendant remains: Southampton Village, population 3,200.

Additional reporting by Lisa Girion and Grant Smith. Editing by Ronnie Greene and Michael Williams

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