November 22, 2013 4th Circuit published opinions

Fontenot and Turner v Taser International, Inc.

Plaintiffs’ son was tased during a confrontation with police and died as a result of his heart stopping. They sued Taser international fro failure to warn against using the particular taser product on the chest. The district court barred evidence of contributory negligence on the son’s part. The jury returned a verdict for plaintiffs which the court reduced. The panel, 2-1, affirmed in part, vacated in part and remanded. The majority held that under the governing North Carolina product liability statute, the district court properly excluded contributory negligence evidence as the statute only allows a contributory negligence defense when the claimant uses the product. Her, the police officer used the taser not plaintiffs’ son and thus the defense was not available. The majority noted that the cases relied upon by Taser International involved a plaintiff who actually used the product and allowing the defense here would effectively immunize the company form product liability claims in North Carolina which the majority concluded would not be the holding of the North Carolina Supreme Court if it faced the issue. The majority held that here was sufficient evidence that the police department would have changed its aim at chest policy if it was warned that the taser used could cause hearts to stop beating. The majority held that the warning issued by Taser International was inadequate as it did not define the length of time electric shock could safely be used and was otherwise vague to the point of inadequacy. The majority finally held that the damage award, even after reduction, was not supported by evidence because plaintiffs failed to introduce evidence of the value of the son’s services and companionship and thus the award was based on pure conjecture. The case was remanded for a new trial on damages only. The dissent argued that under state law, the son was required to act in a reasonable manner to prevent injury and he did not do so when he acted aggressively towards the police officer and refused to stop even after being tased. The dissent also argued that the product liability statue did not bar the defense because the North Carolina Supreme Court has construed that statute to merely codify the common law not create a different rule for product liability cases.

Lin v Holder

Lin entered the country illegally and sought asylum. The immigration judge ruled her inconsistent testimony at her initial airport interview and the two hearings about her marital status and whether she underwent a forced abortion made her claims not credible an ordered her removed. The panel affirmed. It held her failure to mention her forced abortion at the border and her shifting explanations as to whether she was married were sufficient to support the adverse credibility determination. It noted that while it was concerned about the impropriety of using airport interview statements as a basis for such determinations, those concerns were not controlling here given the central nature of the forced abortion to Lin’s claim. Te panel also held that the proffered independent evidence did not provide a basis for asylum. It finally rejected Lin’s due process claim holding the immigration judge had authority to extend evidentiary deadlines and Lin was given months to prepare. One judge added a concurrence emphasizing that the border or airport interview here should be scrutinized given the limited purposes of the interview, the paraphrasing in the notes and the circumstances of the detention especially given Lin’s experiences with the Chinese government. However, the concurrence concluded that Lin’s inconsistency on her marital status was sufficient to affirm here.

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