IN THE SUPREME COURT OF No. 09-0868 TASER INTERNATIONAL, INC.

And

CITY OF AKRON, On Appeal from the Summit County Court of Appellees Appeals, Ninth District

V. Court of Appeals Case No. 24233 CHIEF MEDICAL EXAMINER OF SUMMIT COUNTY, OHIO a/k/a LISA KOHLER, M.D.

Appellant

APPELLEE TASER INTERNATIONAL, INC.'S MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

Dean Holman William A. Nolan (Atty. #0041891) Medina County Prosecutor [email protected] [email protected] Counsel of Record William L. Thome BARNES & THORNBURG LLP [email protected] 21 East State Street, Suite 1850 Assistant County Prosecutor Columbus, Ohio 43215-4219 73 Public Square 614.628.0096, 614.628.1433(fax) Medina, Ohio 44256 330.723.9536, 330.764.8400 (fax) John R. Maley (pro hac vice) [email protected] Counsel for Appellant Chief Medical Examiner BARNES & THORNBURG LLP 11 South Meridian Street Patricia Ambrose Rubright Indianapolis, Indiana 46204 [email protected] 317.231.7464, 317.231.7433(fax) Michael J. Defibaugh [email protected] Counsel for Appellee Assistant Directors of Law TASER hiternational, hic. City of Akron 161 South High Street, Suite 202 Akron, Ohio 44308 330.373.2030, 330.375.2041(fax) ED

Counsel for Appellee City of Akron j (;^^ j2 CL,ERK OF CQURT TABLE OF CONTENTS

APPELLEE TASER INTERNATIONAL, INC.'S STATEMENT OF POSITION AS TO WHETHER A SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED, AND WHETHER THE CASE IS OF PUBLIC OR GREAT GENERAL INTEREST ...... 1

A. Any Constitutional Issues Were Waived Below, And No Substantial Constitutional Question Is Presented ...... 1

B. The Medical Examiner Waived Her Claimed Rule 702 Evidentiary Error Below, And The Issue Is Not One Of Public Or Great General Interest ...... 2

C. The Standing Issue Was Waived Below, There Was No Abuse Of Discretion In Detennining That The Manufacturer Being Blamed By The Medical Examiner For Three Drug-Related Deaths Had No Standing, And The Issue Is Not Worthy Of Discretionary Review ...... 3

STATEMENT OF THE CASE ...... 4

A. Procedural History ...... 4

1. Waiver Of Standing Issue ...... 4

2. No Constitutional Issues Asserted ...... 6

3. The Evidentiary Ruling On Expert Testimony ...... 6

B. The Decisions Below ...... 7

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... 8

A. The Medical Examiner's Waived Constitutional Argument Fails Procedurally And On The Merits ...... 8

B. The Trial Court Judge Did Not Abuse His Discretion hi Applying Ohio R. Evid. 702 And Requiring Reliable Scientific, Medical, Or Electrical Evidence From The Medical Examiner ...... 10

C. The Trial Court Judge Did Not Abuse His Discretion In Determining That TASER Had Standing To Bring This Special Statutory Action ...... 11

CONCLUSION ...... 13

CERTIFICATE OF SERVICE ...... 14

i APPELLEE TASER INTERNATIONAL, INC.'S STATEMENT OF POSITION AS TO WHETHER A SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED, AND WHETHER THE CASE IS OF PUBLIC OR GREAT GENERAL INTEREST

The Summit County Medical Examiner presents neither a substantial constitutional question, nor a case of public or great general interest, having waived each of the three issues she

asks this Court to review. Moreover, the asserted evidentiary and procedural issues - by the

Medical Examiner's own admission - were to be reviewed deferentially by the Court of Appeals

for abuse of discretion. This Court should not invoke its limited resources to review

discretionary trial court decisions waived below.

A. Any Constitutional Issues Were Waived Below, And No Substantial Constitutional Question Is Presented.

Throughout the trial court proceedings the Medical Examiner never asserted a

constitutional issue: not in her Answer, not by motion, and not by any other means.

Constitutional arguments cannot be raised for the first time on appeal in civil matters. See

Ritenauer v. Lorain Country Club Ltd. (Sept. 12, 2001), 9th Dist. No. 01 CA007811 (civil litigant

will have "waived the right to contest an issue on appeal if that issue was not raised at the

appropriate time in the trial court"). TASER filed a complaint, first amended complaint, and

second amended complaint in this action. In answering each complaint, the Medical Examiner

never raised any constitutional issues. Moreover, through trial and entry of judgment, the

Medical Examiner never raised any constitutional issues. The Medical Examiner thus waived

the constitutional issue she now asks this Court to exercise its discretion to review.

Moreover, in the Court of Appeals the Medical Examiner did not develop the argument

sufficiently to seek the Court of Appeals review. The Medical Examiner offered nothing beyond

a bare-bones, three-paragraph "constitutional" argument in the Court of Appeals. On the merits,

"all statutes are presumed constitutional, and the party challenging a statute bears the burden of

1 proving otherwise ... beyond a reasonable doubt." State v. Boczar, 113 Ohio St.3d 148, 2007-

Ohio-1251, 863 N.E.2d 155, at ¶9. The Medical Examiner did not and cannot meet her heavy burden to demonstrate unconstitutionality.

B. The Medical Examiner Waived Her Claimed Rule 702 Evidentiary Error Below, And The Issue Is Not One Of Public Or Great General Interest.

The Medical Examiner asks this Court to exercise discretionary review over a routine expert witness evidentiary issue: whether she should have been allowed to testify under Evid.

Rule 702 as to the speculative and unscientific basis for blaming TASER's product for death. At trial, however, she waived this issue by failing to make an offer of proof as to what the purported

testimony would have been. As the Court of Appeals properly ruled, "Because Dr. Kohler did

not place an offer of proof on the record with respect to her own testimony and the testimony of

[her deputies], and because neither the legal theory of admissibility nor the substance of the

excluded testimony is apparent from the context, the trial court's decision to exclude the

testimony under Evid. R. 702 cannot be assigned as error."

Furthermore, the trial court's evidentiary decision under Ohio R. Evid. 702 was

reviewable deferentially for abuse of discretion. Rule 702 requires expert opinions to be based

on "reliable scientific, technical, or other specialized information." Medical examiners, of

course, are offering medical expert opinions regarding death causation, Vargo v. Travelers Ins.

(1987), 34 Ohio St.3d 27, 30, 516 N.E.2d 226, and are held to evidentiary requirements as well.

State v. Harrison (May 12, 1993), 1st Dist. No. C-920422. By their own admissions, the

Medical Examiner and her staff lacked scientific, medical, or engineering bases to opine that

TASER devices caused or contributed to these deaths. Furthermore, the Medical Examiner and

her staff admittedly lacked an understanding of the physiological effects of TASER devices on

humans. In weighing the evidence and exercising his discretion as the gatekeeper under

2 Rule 702, Judge Schneiderman determined that the Medical Examiner and her staff did not satisfy Rule 702's requirements. Ohio trial courts routinely make such evidentiary decisions involving expert witnesses under Rule 702, and those decisions are routinely reviewed

deferentially by the Court of Appeals. This particular discretionary evidentiary issue in this particular case involving these particular witnesses simply is not of public or great general

interest.

C. The Standing Issue Was Waived Below, There Was No Abuse Of Discretion In Determining That The Manufacturer Being Blamed By The Medical Examiner For Three Drug-Related Deaths Had Standing, And The Issue Is Not Worthy Of Discretionary Review.

Ohio R.C. 313.19 "outlines a special statutory procedure allowing judicial review of a

coroner's verdict." LeFever v. Licking Cty. Coroner's Office, 5th Dist. No. 06-CA-13, 2006-

Ohio-6795, at ¶17. "R.C. 313.19 does not limit who may initiate judicial review of a coroner's

verdict." LeFever, 2006-Ohio-6795 at ¶24. hi addressing three drug-related deaths, the Medical

Examiner publicly blamed a TASER® electronic control device as causing or contributing to

each death, which findings were widely reported. TASER was then sued by the families of two

of the decedents. TASER brought an action under Ohio R.C. 313.19 seeking to correct the

Medical Examiner's determinations and proceeded on amended complaints. Although the

Medical Examiner originally pleaded standing as a defense to the original Complaint and moved

to dismiss, that motion was denied and amended complaints were subsequently filed. The

Medical Examiner did not timely raise her waivable affirmative defense of standing in defending

the amended complaints. Nor did the Medical Examiner raise standing by the trial court-ordered

dispositive motions deadline. The Medical Examiner thus waived the issue. This Court should

not exercise its discretionary review powers to consider issues waived below.

3 Moreover, the standing issue was - as admitted by the Medical Examiner (App. Reply

Br. at 1; TASER's App. Br. at 22) - reviewable by the Court of Appeals deferentially for abuse of discretion. The Court of Appeals properly ruled that it "cannot conclude that TASER lacked standing to bring this action," and this Court should not exercise its scarce resources to re-review a second time the trial court's discretionary decision.

STATEMENT OF THE CASE

A. Procedural History.

1. Waiver Of Standing Issue.

TASER brought this action in the Summit County Court of Common Pleas pursuant to

Ohio R.C. 313.19 to challenge the Summit County Medical Examiner's erroneous cause of death detenninations in the Hyde and Holcomb drug-related deaths. [Dkt. 111] In her death certificates and autopsy reports, the Medical Examiner listed electrical pulse incapacitation from a TASER device as causal or contributory. The Medical Examiner moved to dismiss TASER's original Complaint pursuant to Rule 12(b)(6) asserting that TASER lacked standing. In response, TASER filed its First Amended Complaint [Dkt. 1/2/07] and responded separately to the dismissal motion. [Dkt. 100] The trial court denied the Medical Examiner's dismissal motion in January 2007 by a written opinion. [Dkt. 98] The Medical Examiner then answered TASER's

First Amended Complaint. [Dkt. 96] The Medical Examiner did not plead or raise standing in that answer. [Dkt. 96] Nor did the Medical Examiner move to dismiss the Amended Complaint.

[Dkt. 84] Thereafter the City of Akron - whose officers were involved at the scene of Hyde's demise - moved to intervene to join TASER as a party-plaintiff in challenging the Medical

Examiner's findings in the Hyde death. [Dkt. 92] The trial court allowed the City of Akron's intervention. [Dkt. 90]

4 TASER then filed its Second Amended Complaint in October 2007, adding the

McCullaugh death determination, wherein the Medical Examiner listed electrical restraint from a

TASER device as contributory to his death. [Dkt. 10/1/07] Again, in her October 2007 Answer, the Medical Examiner did not raise standing as a defense [Dkt. 74], nor did the Medical

Examiner move to dismiss. That same month, Judge Schneiderman ordered dispositive motions to be filed by January 21, 2008. [Dkt. 76] On that date, TASER and City of Akron filed their motions for summary judgment, contending that based on the deposition testimony of the

Medical Examiner and her staff and other undisputed evidence, judgment was required for

TASER and the City. [Dkt. 57-60] The Medical Examiner filed no dismissal or dispositive motions by that court-ordered deadline. In responding to TASER's and the City's summary judgment filings, the Medical Examiner made no argument regarding standing. [Dkt. 47]

A court hearing was held on TASER and the City's summary judgment motions in March

2008. [Dkt. 44] Again, the Medical Examiner made no argument regarding standing. Judge

Schneiderman denied the summary judgment motions, finding genuine issues of material fact for

trial. [Dkt. 37] A final pre-trial conference was held on April 8, 2008, in advance of the trial

scheduled for April 21. [Dkt. 37, 26] Again, the Medical Examiner made no motion or argument

regarding standing.

Trial proceeded through four days beginning April 21, 2008. In opening statement, the

Medical Examiner made no mention of standing. [Tr. 28-34] It was not until day three of trial

that the Medical Examiner orally "renewed" her prior motion to dismiss, which was levied at the

first Complaint and denied. [Tr. 675] No written motion was filed. Judge Schneidennan denied

the oral motion. [Tr. 681] In closing argument, the Medical Examiner renewed without

argument her oral motion to dismiss, which Judge Schneiderman denied. [Tr. 844-45] No

5 written motion was filed. Thereafter the Medical Examiner never again raised standing in the trial court, including in her closing argument and in her post-trial proposed findings. [Dkt. 14]

2. No Constitutional Issues Asserted.

Throughout the trial court proceedings, the Medical Examiner never raised any constitutional issues. No answers, motions, briefs, or oral arguments were made asserting that

Ohio R.C. 313.19 is somehow unconstitutional.

3. The Evidentiary Ruling On Expert Testimony.

The trial court denied TASER's and City of Akron's summary judgment motions prior to trial, determining that the Medical Examiner's findings were entitled to a rebuttable presumption of correctness pending introduction of competent, credible evidence to the contrary. At trial, the

Medical Examiner's cause of death findings were admitted into evidence. The City of Akron and TASER then put on overwhelming evidence - all of it competent and credible - that the

Medical Examiner's findings were unscientific and speculative. For instance, Dr. Kohler testified:

Q. ... Do you have any scientific, medical or engineering proof to support an opinion that application of the TASER device contributed to Mr. Holcomb's death? A. No.

TASER and City of Akron called the Medical Examiner and her deputies as witnesses in their case-in-chief, and each admitted not being expert on the effects of TASER devices on humans, and not having a scientific or medical basis to render an opinion as to whether the devices caused these deaths. In their defense case, the Medical Examiners and her deputies were recalled to the stand by defense counsel. They were allowed to testify as to what they had done, but upon Rule 702 objections, were not allowed to speculate as to unscientific bases for blaming the TASER devices because they had previously admitted under oath that they were not experts

6 on the subject and had no scientific or medical basis to render such opinions. In response to the trial court's evidentiary rulings, the Medical Examiner never made any offer of proof as to what testimony would have been provided.

B. The Decisions Below.

After four days of trial, testimony from 21 witnesses for TASER and the City of Akron, four witnesses for the Medical Examiner, 13 pages of comprehensive factual stipulations, and more than 100 exhibits, Judge Schneidennan issued a thorough 14-page opinion containing 10 pages of detailed factual findings. [Dkt. 13] On appeal, although the Medical Examiner disagreed with Judge Schneiderman's ultimate conclusion as to cause of death, the Medical

Examiner did not challenge a single specific factual finding made below. Judge Schneiderman wrote in relevant part:

The Court has carefully considered the testimony, the many exhibits, the statements of counsel, and their proposed findings of fact and conclusions of law. There is simply no medical, scientific, or electrical evidence to support the conclusion that the TASER X26 had anything to do with the death of Dennis S. Hyde, Richard Holcomb, or Mark D. McCullaugh. The Medical Examiner failed to present any evidence on the use and effect of TASER Devices.

Even though the Medical Examiner's conclusions are entitled to much weight, and assuming a nonbinding presumption in favor of the Medical Examiner, the Plaintiffs have proven their claims for changing the reports of autopsy and death certificates on the three individuals by more than a preponderance of the evidence. The multiple number of experts offered by the Plaintiffs in the area of sudden and unexpected death while law enforcement attempted to obtain custody, provided overwhelming credible medical and scientific evidence to support their positions.

The experts provided evidence that Dennis S. Hyde and Richard Holcomb probably died as a result of a fatal cardiac arrhythmia due to acute illicit drag intoxication creating crazed states consistent with "Excited Delirium Syndrome," also known as "Agitated Delirium." Also, with Hyde, blood loss by arterial injury was a contributory cause. The TASER Devices had nothing to do with their deaths. [Dkt. 13]

7 The Medical Examiner timely initiated an appeal. [Dkt. 8] The Court of Appeals affirmed in part and reversed in part.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

A. The Medical Examiner's Waived Constitutional Argument Fails Procedurally And On The Merits.

After failing to raise any constitutional issues through the entirety of the trial court proceedings, on appeal the Medical Examiner for the first time argued that Ohio R.C. 313.19 somehow violates due process. This belated, undeveloped argument fails.

First, the Medical Examiner never once raised her constitutional argument before the trial court, so she has waived this issue for appeal. "Failure to raise at the trial court level the issue of the constitutionality of a statute ... constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v.

Smith (1991), 61 Ohio St.3d 284, 293, 574 N.E.2d 510; accord Banks v. Ohio Physical Med. &

Rehab., Inc., 5th Dist. No. 07CA68, 2008-Ohio-2165, at ¶59-63 (constitutional argument "not

advocated or pursued at the trial court level" also "not properly before this court for review");

Bailey v. Ohio State Dept. of Transp., 10th Dist. No. 07AP-849, 2008-Ohio-1513, at ¶15 ("to the

extent plaintiff contends application of the savings statute violates his due process or equal protection rights, he waived those arguments when he failed to raise them in the trial court").

The Medical Examiner's belated constitutional plea fails.

Second, the Medical Examiner is not a proper party to challenge the constitutionality of

R.C. 313.19 in the manner she has. A preliminary inquiry (and question of law) in all

constitutional claims is who can bring the challenge. See State v. Brunner, 114 Ohio St.3d 386,

2007-Ohio-3780, 872 N.E.2d 912, at ¶15; Portage Cty. Bd. of Comm'rs v. City of Akron,

109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, at ¶90. "The constitutionality of a state

8 statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision." Indus. Energy Consumers of Ohio Power Co. v. Pub. Util. Comm'n of Ohio, 68 Ohio St.3d 547, 557, 1994-Ohio-15, 629 N.E.2d 414. The

Medical Examiner claims unconstitutional harm to some unknown nonparties, but not to her.

She was a party and one with notice. She is not within the class of individuals against whom she says the statute would be applied unconstitutionally, so she cannot advance this issue. See supra.

"Constitutional questions will not be decided until the necessity of a decision arises on the record before the court." Christensen v. Board on Grievances and Discipline (1991), 61 Ohio St.3d 534,

535, 575 N.E.2d 790. Such is not the case here. The Medical Examiner is not the proper party to assert a constitutional challenge, so besides also being waived, the argument fails.

Finally, the Medical Examiner has not met her great burden of establishing unconstitutionality. "[A]ll statutes are presumed constitutional, and the party challenging a statute bears the burden of proving otherwise." State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-

1251, 863 N.E.2d 155, at ¶9. A "statute will not be invalided unless the challenger establishes that it is unconstitutional beyond a reasonable doubt." Id. "[I]t is not the function of a reviewing court to assess the wisdom or policy of a statute but, rather, to determine whether the General

Assembly acted within its legislative power." Austintown Twp. Bd. of Trustees v. Tracy, 76 Ohio

St.3d 353, 356, 1996-Ohio-74, 667 N.E.2d 1174. "Courts must apply all presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute or ordinance assailed as unconstitutional." Vargo, 34 Ohio St.3d at 30 n.4. Doing so here demonstrates that the Medical

Examiner has not shown R.C. 313.19 to be unconstitutional beyond a reasonable doubt.

9 B. The Trial Judge Did Not Abuse His Discretion In Applying Ohio R. Evid. 702 And Requiring Reliable Scientific, Medical, Or Electrical Evidence From The Medical Examiner.

The next issue is whether the trial judge acted within his discretion to require reliable scientific, medical, or engineering evidence from the Medical Examiner in rendering expert opinions. As the Court of Appeals determined, he was well within his discretion; indeed, it would have been reversible error for the trial court to ignore Rule 702.

Like other expert witnesses, the Medical Examiner and her staff are not innnune from the requirements of Rule 702. A coroner is an expert witness who is permitted to give an opinion on matters within his or her scope of expertise. State v. Baksi (Dec. 23, 1999), 11th Dist. No. 98-T-

0123. A proper foundation must be laid for a coroner's opinion testimony, and the opinion must have the proper evidentiary basis. See Oa1o EVID. R. 703 and 705. [App. pp. 19-20] A coroner may give an opinion on cause of death, but such opinion must meet the same evidentiary requirements as any other expert. State v. Harrison (May 12, 1993), 1st Dist. No. C-920422

(coroner's opinion should have been stricken when he presented only a possibility of neurological impairment and was therefore speculative). Rule 702(B) requires more than expert qualification with regard to the object of the alleged harm; rather, the expert must be qualified to assess the cause of the alleged hann. See Waste Mgmt. of Ohio, Inc. v. Mid-America Tire, Inc.

(1996), 113 Ohio App.3d 529, 535-36, 681 N.E.2d 492.

Moreover, as the Court of Appeals properly ruled, the Medical Examiner did not preserve

this issue because she failed to make an offer of proof This Court should not devote its limited

resources on discretionary review to an issue that the Medical Examiner did not properly preserve and develop below.

10 C. The Trial Court Judge Did Not Abuse His Discretion In Determining That TASER Had Standing To Bring This Special Statutory Action.

The deferential standard of review for denial of a motion to dismiss for lack of standing - as conceded by the Medical Examiner in the Court of Appeals - is for abuse of discretion. MBA

Realty v. Little G., Inc. (1996), 116 Ohio App.3d 334, 337-38, 688 N.E.2d 39 (holding no abuse of discretion in denying motion to dismiss asserting lack of standing). Here, Judge

Schneiderman did not abuse his discretion in denying the Medical Examiner's motion to dismiss for two separate reasons: (1) waiver; and (2) standing existed.

First, the Medical Examiner waived any standing defense. "Standing is an affirmative defense." Carney v. Knollwood Ass'n (1986), 33 Ohio App.3d 31, 40, 514 N.E.2d 430.

Standing refers only to the capacity of a party to bring an action, not the subject matter jurisdiction of the court. Lemarin Condominium Owners v. Bd. of Review, 176 Ohio App. 3d

342, 2008-Ohio-2379, 891 N.E. 2d 1252, at ¶8. Thus, standing can be waived if not timely

asserted. Id. Indeed, "the failure to plead an affirmative defense constitutes a waiver." Carney,

33 Ohio. App.3d at 40.

As outlined in TASER's Statement of the Case, the Medical Examiner never asserted the

defense of standing in her answer to either the First Amended Complaint or the Second

Amended Complaint. Moreover, the Medical Examiner never raised standing prior to the

dispositive motions deadline, at several pre-trial conferences, in response to summary judgment,

or even in opening statements at trial. As such, the Medical Examiner waived this defense.

Carney, 33 Ohio. App.3d at 40. ("failure to plead an affirmative defense constitutes a waiver").'

1 Had the Medical Examiner timely raised standing in attacking the Second Amended Complaint, or even by dispositive motion, although not required under Section 313.19 for standing, TASER would have set forth even further evidence of harm. With the Medical Examiner having waived the affirmative defense, no proof of standing was required at trial.

11 Second, beyond waiver, Judge Schneiderman did not abuse his discretion in denying the belated oral motion to dismiss because Ohio R.C. 313.19 places no limits on who can bring such an action. Indeed, the Ohio Court of Appeals has confirmed that R.C. 313.19 "does not place any limitation on what may be contested or the purpose for which a change is desired." LeFever v. Licking Cty. Coroner's Office, 5th Dist. No. 06-CA-13, 2006-Ohio-6795, at ¶19 (reversing trial court dismissal of an R.C. 313.19 action brought by stepdaughter of decedent). Indeed,

R.C. 313.19 "does not limit who may initiate judicial review of a coroner's verdict." Id. ¶24.

Amazingly, before the Court of Appeals the Medical Examiner did not even cite - let alone distinguish - this authoritative precedent in her opening or reply brief, which was cited by

TASER to the trial court. Because there are no standing limits under 313.19, Judge

Schneiderman did not abuse his discretion Z

Moreover, even if there were limits to R.C. 313.19 standing, TASER still had standing to pursue this action. As set forth in TASER's First and Second Amended Complaints (which, again, were never challenged by the Medical Examiner on standing), TASER is engaged in the manufacture and sale of battery-powered conducted energy devices used by law enforcement agencies in various states, including Ohio. In her cause of death determinations in the Hyde,

Holcomb, and McCullaugh deaths, the Medical Examiner erroneously implicated a TASER device as causing or contributing to each one of the deaths, despite competent, credible evidence that the deaths were caused by other factors such as the decedents' use of illegal drugs including methamphetamine. TASER has a cognizable interest in these erroneous cause-of-death

determinations, having been incorrectly and publicly blamed by the Medical Examiner for the

2 Unlike tort claims for damages which require proof of duty, breach, causation, and damages, an R.C. 313.19 action does not require damages; the only issue is whether the cause of death determination, upon judicial review, is shown to be incorrect.

12 deaths of these drug users. Pursuant to Ohio law, these cause-of-death determinations, unless corrected by the trial court, are presumed to be correct. The TASER products at issue are designed to be and are non-lethal, and the Medical Examiner's erroneous determination that the

TASER devices caused these deaths materially harms the reputation of TASER and its ability to market and sell these life-saving law enforcement devices and leads to lawsuits being filed against TASER. Indeed, as a result of cause-of-death findings against TASER, two civil lawsuits were filed against TASER. Furthermore, the Medical Examiner's public determinations blaming TASER have been widely reported in the media and among anti-TASER critics, further harming TASER's reputation.

In short, publicly blaming a manufacturer's product for the death of a human being is inherently negative and casts the manufacturer in a negative public light. This disparagement is sufficient for standing under any standard. But under R.C. 313.19 and the LeFever precedent, no limits are placed on who can bring an action, and the Medical Examiner waived this defense in any event. Judge Schneiderman did not abuse his discretion in denying the belated and unsupported oral motion.

CONCLUSION

The Court should not accept review of this matter, particularly given waiver of the issues below. Respectfully submitted,

William A. Nolan (Atty. #0041891) John R. Maley (Pro Hac Vice) BARNES & THORNBURG LLP ARNES & THORNBURG LLP 21 East State Street, Suite 1850 South Meridian Street Columbus, Ohio 43215-4219 Indianapolis, Indiana 46204 Telephone: 614.628.0096 Telephone: 317.236.1313 Facsimile: 614.628.1433 Facsimile: 317.231.7433 Email: [email protected] Email: [email protected] Attorneys for Appellee TASER International, Inc.

13 CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of June, 2009, a copy of the foregoing was served on the following counsel of record via first class U.S. Mail:

Dean Hohnan Medina County Prosecutor Williarn L. Thorne Assistant County Prosecutor 73 Public Square Medina, OH 44256

Patricia Ambrose Rubright Michael J. Defibaugh Assistant Directors of Law City of Akron 161 South High Street, Suite 202 Akron, OH 44308

INDS02 1053263v1

14