A measure of justice for a mother who met a tragic end
Wednesday, December 16, 2009
(Whenever you see something that looks like this, click the arrow or the highlighted words to hear the relevant portion of the radio broadcast.)
By J.G. Preston
For Civil Justice Research & Education Project
On the first day of jury selection, the panelists made clear that Roger Dreyer faced serious obstacles as he sought to show that a Sacramento radio station contest led to the death of Jennifer Strange. Mrs. Strange, 28, had volunteered for a contest put on by KDND-FM, a highly rated radio station in the Sacramento Valley, in the hope of winning a hard-to-get video game system for her oldest child, a son then age 11.
In what passes for entertainment in the world of morning radio, the contest on 107.9 “The End” involved drinking copious amounts of water without urinating. Mrs. Strange consumed nearly two gallons of water in three hours in a game called “Hold Your Wee For A Wii.”
She was dead that afternoon. The cause: acute water intoxication.
“We should be watching out for what we do,” one prospective juror said. “She did a stupid thing.”
Said another: “It’s too easy to sue. The victim’s choice to participate makes a difference.”
A third added: “Monetary awards to lawyers in civil cases are unfair. For 30 to 40 percent of the award to go to the attorney is outrageous.”
By the end of the trial 45 days later, the jury had awarded $16.5 million to Mrs. Strange’s widower and her three young children. This is the story of how plaintiffs’ attorneys Roger Dreyer and Harvey Levine overcame a skeptical jury pool to win one of the largest wrongful death awards ever in California.
“Nobody believes me when I say this, but this wasn’t just about the money,” Dreyer said. “This family went through hell and they did not want someone else to suffer the way they did. They wanted to hold the people accountable who needed to be held accountable and send a message to radio stations across the country. And the best way to do that is to litigate in front of a jury.”
KDND is one of 110 stations in owned by Entercom Communications, a publicly traded corporation that is one of the nation’s five largest radio chains. Entercom executives had every reason to be pleased with their Sacramento affiliate.
KDND’s “Morning Rave” show attracted an important slice of the listening public: young women who are particularly coveted by advertisers. Between the ads, the hosts provided a mix of goofy humor, banter about sex, contests and music.
On Jan. 12, 2007, on-air hosts Adam Cox (known on-air as “Lukas”), Steve Maney and Trish Sweet unveiled their latest gimmick to draw in listeners, the water-drinking contest. The station’s promotions director prepared the rules, but didn’t share them with the hosts or contestants. Nor did the station submit the rules to Entercom’s corporate attorneys for approval as required under the company’s policy for any contest involving “an unusual method of winning.”
As written, the rules called for contestants to drink eight ounces of water every 15 minutes. In the hosts’ view, that was not sufficient. The contest opened with participants drinking eight ounces every 10 minutes. After two hours, the hosts became concerned that the contest wouldn’t produce a winner by the time the show ended at 10 a.m. So the contestants were told to double their intake, and down 16.9 ounces every 10 minutes.
A little more than three hours after her first bottle of water, Mrs. Strange dropped out of the contest. She was runner-up to the woman who won the video game. To compensate Mrs. Strange, the station gave her two tickets to a Justin Timberlake concert that night in Sacramento.
The tickets went unused. She left the station and headed home, feeling too ill to go to work that day at her job as an office supervisor for a medical services company. Her mother found her dead shortly before 3 p.m.
Mrs. Strange left behind her husband, Billy Strange, their two preschool children, Ryland and Jorie Strange, and 11-year-old son, Keegan Sims. They joined to file a wrongful death suit before the month was over.
In Dreyer, they chose a former California “Trial Lawyer of the Year” with nearly 30 years of experience. Dreyer had tried more than 100 jury trials to conclusion, many of them in Sacramento County Superior Court.
Sacramento District Attorney Jan Scully declined to prosecute. The Federal Communications Commission opened an investigation. To this day, the case remains open and unresolved. But two and a half years later, Jennifer Strange’s husband and children got their day in court, in the form of case 07AS00377, William A. Strange et al. v. Entercom Sacramento LLC et al.
Prospective jurors filed into the courtroom of Superior Court Judge Lloyd A. Phillips. A World War II veteran, Phillips was admitted to the state bar in 1953 and was appointed to the Superior Court bench by then-Governor Ronald Reagan in 1969. Phillips is now 83 years old but has continued to hear cases on an occasional basis since retiring on deferred retirement in 1988.
Dreyer used voir dire to address prospective jurors’ attitudes about unnecessary civil suits and high fees for plaintiffs’ lawyers. “We can’t change the jurors’ perspective on lawyers,” he said later. “We can’t change their viewpoint that we’re all greedy, that there’s fraudulent claims. So I have to make them think, ‘This guy’s the exception. I can trust Mr. Dreyer.’
“I have to do that over time. And I have to start during jury selection. I have to be candid and honest with them.”
The jury selection process gave jurors a chance to get to know Dreyer. Dreyer also got to know them. He used his six peremptory challenges to eliminate jurors he felt would be unfriendly to the plaintiffs. He ended up with a jury of six men and six women, after two-and-a-half days of voir dire.
Dreyer began his opening statement on September 17. He saved some of the most powerful information for the next day. He played for jurors – for the first of what would be many times – excerpts of the KDND broadcast on the day of the contest. Those excerpts would be some of the plaintiffs’ strongest evidence. While playing the excerpts, Dreyer showed the jurors pictures of Strange that were taken by station employees during the broadcast.
At 5:41 a.m., as the hosts of the show were setting the stage for the contest, Trish Sweet said, “Can’t you get water poisoning and, like, die? … Maybe we should have researched this.”
In an indication that the hosts were aware of the dangers, one made reference to a Chico State University student who died of water intoxication after a fraternity hazing ritual in 2005.
At 6:13, a woman who identified herself as a pediatric nurse called the station and was placed on the air. She warned that the contest was dangerous. One of the hosts brushed her aside, saying: “Don’t worry, they’ve all signed releases.”
At 8:15, a woman who said she had lived in Chico called to warn the hosts about water intoxication and and brought up the fraternity hazing death.
“They signed releases,” she was told. “It’s not our problem.”
The woman called back a few minutes later and told the show’s producer off the air the contestants should at least be given salt. Her advice went unheeded. If the station had paid attention, Mrs. Strange might still be alive. In fact, a UC Davis medical professor later testified that a small amount of salt consumption would have restored her blood chemistry and prevented her death.
At 8:18, yet another woman called and told the hosts on the air, “Those people that are drinking all that water can get sick and possibly die from water intoxication.”
Again, the warning was ignored.
“They signed releases so we’re not responsible. It’s okay,” the host said.
At 9:27, with only two contestants remaining, Jennifer Strange was put on the air.
“My head hurts,” she said. “They keep telling me that it’s the water, that it’ll tell my head to hurt.”
The hosts offered her tickets to drop out. After accepting the ticket offer, she entered the on-air studio and was put on the air to receive her prize.
“Oh my gosh, look at her belly!” Lukas said. “Are you pregnant?”
“Look, it’s totally sticking out!” Trish Sweet chimed in. “That is so funny!”
Dreyer displayed a photo of Mrs. Strange’s water-filled belly, taken by a radio station employee, on a large screen for jurors to look at while they heard this exchange.
Billy Strange, Jennifer’s widower, sat quietly behind his attorneys’ table, seeing his wife’s photo and hearing her voice again as he would through much of the trial. He rarely moved while listening to testimony and didn’t attract any attention to himself.
Often while recordings of his wife’s voice were heard in the courtroom, he would gaze at the floor. Sometimes his eyes would well up with tears. On occasion the emotion would appear to overcome him and he would quietly walk out of the courtroom until he was more composed. Jurors would see his tears later, when he was called to testify.
Before finishing his opening statement, Dreyer told the jury that Jennifer Strange had no idea about the dangers of excess water consumption, just as Entercom’s top executives would later testify that they had no idea.
The hosts of the show knew about the death in Chico. They also knew their “stunt guy” felt ill after drinking a large amount of water in a stunt a few months before the contest. And numerous listeners called with warnings during the contest.
They never shared that information with the contestants.
After Dreyer and Levine finished their opening statements, defense attorney Don Carlson, representing Entercom, asked Judge Phillips for a five-minute break to give him time to set up his audio-visual presentation.
Once the jury left the courtroom, defense counsel Doug Sullivan, representing Entercom’s Sacramento market manager John Geary, asked Phillips to declare a mistrial based on several comments made during the plaintiffs’ opening statements. Among them were Levine’s statement that Strange chose not to have an abortion as a high school student when she was pregnant with her oldest child, the intended recipient of the video game.
“We did not make voir dire on abortion,” Sullivan argued.
The motion was denied.
That was on a Friday. The following Monday, before jurors entered the courtroom to hear the first witness of the case, Sullivan again moved for a mistrial, based on the abortion comment.
“Is this going to happen every morning?” Phillips, seeming perturbed, asked. The attorneys argued over various topics for 15 minutes before Phillips cut off the conversation.
“I’m going to hate coming to work in the morning if there’s always going to be a motion for a mistrial,” the judge said.
The defense moved for a mistrial again the next morning, objecting to the examination of the radio show’s “stunt guy,” Peter Inzerillo, known on the air as “Fester.” The motion was denied. Before the case went to the jury there would be two more defense motions for a mistrial and a motion for a directed verdict in favor of the defendants. All were denied.
On the second day of testimony, three people who called the radio station during the contest were put on the witness stand by the plaintiffs. The first, Kristina Bouyer, is a pediatric nurse who called before the contest even began to say the contest was dangerous.
Dreyer spent no more than 10 minutes questioning her. That was the point. It may have been one of the keys to the Dreyer’s case.
“Have you ever been in a situation where the silence is deafening, where it hurts, it’s so quiet? That’s what it was like between my questions and her answers,” Dreyer said “I tried to go as slow as I could without being too obvious.”
Most of the time, Dreyer speaks quickly. His questions can be rapid-fire. On several occasions, the court reporter asked Dreyer to slow down so she could transcribe what was being said. But not with nurse Bouyer. Pacing became important.
“I’m always going at mach speed and the jurors saw that during the course of the case. So when I slow myself down like that, I want the jury to know, okay, this is really important. And they’re drawn into it.”
Carlson didn’t ask her a single question.
“That was extremely important,” Dreyer said. “She gets up and she walks out, and it’s deathly quiet, and I’m making sure I don’t make a noise and I don’t move because I want the jury to watch this witness leaving without a question after she’s just absolutely cut the defense’s throat.”
In the second week of the trial, Dreyer called John Geary to testify. At the time of the contest Geary was the market manager for Entercom’s six Sacramento radio stations, all housed in the same building. He remains in that position today. When he testified, Geary was a defendant as an individual along with his corporate employers.
Dreyer began interrogating Geary from a position behind the bar, pacing in the aisle of the spectators’ area of the courtroom. It was a noticeable change from previous examinations, when Dreyer had stood within a few feet of the witness. His new position forced Dreyer to speak up to ensure Geary could hear him. It also made Geary raise his volume level for Dreyer to hear him.
As market manager, Geary had ultimate responsibility for his radio stations. But as it happened, Geary did not pay much attention to the Morning Rave. He was a manager who rarely listened to the stations he was supposed to oversee, he testified. Indeed, his employees had testified previously that Geary had no knowledge of the “Hold Your Wee For a Wii” contest in advance. Nor was he aware that the contest was taking place – even after telling one of the “Morning Rave” hosts to keep the noise down in the staff break room where the contestants had gathered.
Geary testified the first he knew of the contest was when he was told Jennifer Strange was dead.
Late in the day, during re-direct, Geary’s attorney Doug Sullivan asked Judge Phillips, “Could you instruct Mr. Dreyer not to yell at my client?”
“He’s not yelling,” Phillips said, though he did ask Dreyer to move forward.
After the trial Dreyer explained why he placed himself where he did during his examination of Geary.
“I wanted to make it more high drama theater. But I couldn’t have done that with the first witness. I saved Geary for that spot. I had to build the case slowly, I had to get the jury to think, ‘We get where you’re at. We believe you now.’
“Timing is very important.”
“Basically, you’re presenting a play. You need to do it in a way that people never get tired of listening to it. If you sit in a play for two-and-a-half hours and you’re thinking, ‘When is this thing going to be over?’ you’re not going to be listening to it.
“But if the play is just riveting, it’s drama, it takes you into it, and at the end of the two-and-a-half hours you’re thinking, ‘It’s already over? I want you to keep going on, I want to know what happens in the next act!’
“That’s the art of putting on a trial.
“The difference is, it’s real, it’s factual, and you can never make it look dramatic. You have to let the drama of the case capture the jury.”
On the next to last day of the testimony, Dreyer agreed to drop Geary as a defendant. Up to that point, Geary had been in the courtroom for virtually every minute of the trial.
Dreyer explained he thought Geary was personally accountable for Strange’s death, but also was concerned that some jurors might be “distracted” by Geary’s status as an individual defendant and that it could have affected the amount of the damage award. Dreyer also made clear why he waited so long to dismiss Geary.
“I wanted him to sit,” Dreyer said. “I wanted him to listen. I wanted him to hear everything that happened in this case.”
The day after Geary testified, Dreyer called George Kaysen, chair of the UC Davis School of Medicine biochemistry department, to the stand. Kaysen explained how excessive water consumption leads to an imbalance in the blood’s salt level. Cells in the body begin to swell to compensate, and as brain cells swell, the brain runs out of room to expand because of the skull. The resulting pressure causes brain damage and, eventually, death.
Kaysen said Jennifer Strange’s brain showed signs of that swelling. After her death it weighed almost 8% more than the upper limit for women.
Kaysen said the swelling in the brain would lead to confusion, disorientation and impaired judgment, similar to alcohol intoxication. And smaller people, such as Mrs. Strange, are more vulnerable to water intoxication.
On October 1, two weeks after opening statements had begun, one of the jurors, Christine Lorda, called the court to say she was ill. She made it to court in time for the start of the day’s testimony, but during the mid-morning break she told the bailiff that she would need to go home. Phillips immediately decided to replace Lorda to avoid any delay in the trial.
Four slips of paper, each with the name of an alternate juror, were put into a paper cup. Sullivan then pulled out one of the slips. The choice was the only male among the alternates, making the composition of the jury seven men and five women.
“That was a great pick,” Dreyer said, then turned to the judge and said, “That was a great idea.” Dreyer quipped: “I’m just being a smart aleck. I withdraw that smart aleck remark.”
“All of them?” the court reporter asked.
“Just that one,” Dreyer responded.
Dreyer was clearly happy to add another man to the jury. “Women are hard on women,” he said after the trial. “Men protect women. Men particularly protect great women. I really felt that males would like Jennifer and would like Billy.”
The plantiffs’ final witnesses were Jennifer Strange’s two young children. Young children aren’t often called to testify in wrongful death cases involving a parent. Mothers in particular often refuse to let their children testify.
“We absolutely had to put these kids on the stand so the jury could see who they are and not just their names,” Dreyer explained.
Six-year-old Ryland took the stand first. Dreyer asked him about his school and his teacher, about his big brother and his little sister.
Then three-year-old Jorie sat in the witness box. Dreyer asked how she was and she leaned toward the microphone and boomed out, “GOOD!” eliciting smiles and laughter from the jurors.
He asked Jorie about her preschool and about her brothers, and she got another laugh when she said big brother Keegan’s shoes “are kind of stinky.” Dreyer did not ask about their mother.
“I think the jury was relieved we didn’t. It would have looked contrived. The worst thing I could have done was make those children cry on the witness stand. The jury would have hung me up by the thumbs.”
Mrs. Strange’s children were on the stand a total of five minutes.
Then Dreyer rested the plaintiffs’ case.
Plaintiffs’ witnesses had filled 11 court days. Defense attorney Carlson called four witnesses, and rested his case on the same day that Dreyer and Levine rested theirs.
The jury got the case the morning of October 15. They wouldn’t come back with a verdict for two weeks.
The jury was unanimous in finding Entercom Sacramento negligent, and unanimous in finding that negligence caused harm. The jury was also unanimous in finding that the parent company, Entercom Communications, was not negligent.
Then came the award for economic damages: $1,477,118.
“That was a bad sign,” Dreyer said.
Even Carlson, in his closing argument, suggested an award that included $1.8 million in economic damages, and $2.7 million in noneconomic damages.
Then the jury spoke. The non-economic damage award: $15.1 million.
“Two years ago, I served them with a statutory demand for $10 million,” Dreyer said. “They could have settled this case a long time ago for a lot less, but they didn’t.”
Next came what Dreyer called the best part of the verdict. By a 10-2 vote, the jury determined Jennifer Strange was not at fault.
“We got people to put aside this concept that she had to be responsible because she was a participant,” Dreyer said. “Now her kids are going to grow up, and they’re never going to think their mom played a role.
“And that’s huge.”
Juror LaTeshia Padgett talked to reporters after the verdict:
“I’m a registered nurse, but I myself wouldn’t have known that drinking too much water would be an issue. So I think they [the “Morning Rave” hosts] had the task to let her know what they were told with all the phone calls [warning of danger during the contest], even if they didn’t know beforehand.
“During the contest they could have stopped it at any time. They got all the information that they needed, and they didn’t share it with the contestants.”
The Strange family got more than money from the verdict. The family also got Entercom management to agree to make changes in its contest procedures. Among those changes, the corporation will train on-air hosts in what are appropriate contests. At the time of “Hold Your Wee For a Wii” only promotion directors and station managers were trained. The corporation also will require the presence of medical personnel at any contest involving ingestion. Station personnel will be trained on proper responses in the event of a medical emergency involving a contestant.
“The civil justice system dictates policies and establishes standards of care, what communities are going to accept,” Dreyer said. “What deters corporate misconduct is smoking them in the courtroom, and making them pay, and embarrassing them.
“In what other country on earth can a high school educated, blue collar guy hold a company with 110 radio stations, making millions and millions of dollars a year, accountable for its conduct?”