Opening Statement - Defense in Jennifer Strange Trial

September 20, 2009

Attorney Don Carlson, who represents Entercom Sacramento LLC and Entercom Communications LLC, began his opening statement by telling the jury that no one ever thought anyone could die from voluntarily drinking water.  He said expert testimony would reveal that only 18 people have ever died from Hyponatrema (water intoxication,) and of those, three had died while engaging in physical exertion while drinking too much water (as in marathon running,) while the other fifteen suffered from psychotic disorders.  Carlson told the jury he was not suggesting Jennifer Strange was psychotic, just that that is what experts were expected to testify to on the trial.

(editors note:  A quick Google search revealed a water intoxication death which occurred in March, 2003, in Broward County, Florida, where a babysitter forced a child to drink so much water it killed her.  The babysitter was found not competent to stand trial.)

Carlson said Sacramento's Deputy Coroner would testify she had never heard of hyponatrema before the Strange death, and that the Sacramento Forensic Pathologist said it was so rare she had to conduct her own research about it.  Carlson said the Plaintiff's own expert witness, Dr. George Kayser, would testify that he had never treated an emotionally healthy patient for drinking too much water, and before this case had been unaware of a water intoxication death that did not involve a marathon or someone with psychological problems.

Carlson's quote, which he repeated: "No one has ever died from voluntarily participating in a water drinking contest."

Carlson then told the jury that people at KDND had made mistakes.  They failed to see the danger, and that was a mistake.  They didn;t get approval from Legal, and that was a mistake.  And also that employees should not have created or performed a contest involving urinating or vomiting.

He said all ten employees involved in the contest were fired, and that eight of them (all but two interns) were sued as individuals.  Those case have been resolved, but he told the jury to bear in mind while watching their videotaped depositions that they were being sued at the time.

Carlson said the question in this case isn't whether the contest was in bad taste, he said it was and they have no defense for that.  That there was no defense for promotions director Pechota and station manager Weed not following company guidelines. He said what this case is about is whether Entercom Sacramento and Entercom Communications are legally reponsible for the death of Jennifer Strange.

He emphasized that no one at the parent company was involved in putting on the contest, and said there would be no testimony that their contest guidelines were inadequate, or that their training was inadequate.  He reminded the jury that Attorney Carmela Masi had provided training just months prior to the contest to Pechota and Weed.  And he said there would be no testimony that there was any job undone by Masi.

Carlson told the jury that Steve Weed had forty years experience in radio, and that Robin Pechota had 20 years of broadcast experience, and that it was Pechota's responsibility to vet contests, and that she always contacted Legal if there were any potential risks.

He said the idea for the contest arose at a Monday morning meeting, and that it had come from a trade website.

he then talked about the contest itself, and how producer Liz Diaz explained the rules to the contestants.  When she told them they would be drinking eight ounces of water every ten minutes, and if they vomited they would be out, not one contestant left.  He said they did sign a release, which could be considered in a limited way.

He talked about expected testimony from several contestants who would say they knew about the Chico incident, that they knew this was different, and they also knew they could quit at any time.  He also said a couple of the contestants worked as medical assistants, and in their view there was no need for medical assistance at the contest.

He then talked about the Eva call, where she calls in and says "Those people who are drinking all that water can get sick and possibly die from water intoxication."  He showed pictures of a radio in the break room, and said that contestants heard that call, but laughed and joked about it.  They thought it was different than the Chico incident and that they knew they could quit at any time.

He showed pictures of family members who accompanied the contestants, and commented on the jovial fun time they all were having. He note that Jennifer had nade several calls to family and friends throughout the course of the contest.

Carlson said everyone agreed to drinking larger bottles of water to get the contest over with, as nobody had dropped out.  He said the OnAir hosts tried to get people to quit, with offers of movie tickets if they would drop out.  On Air talent Trish Sweet in a video deposition agreed that "if anyone wasn't feeling well, they should drop out, right?  Right."

Carlson said Sweet offered the final two contestants tickets to that nights sold out Justin Timberlake concert, which Jennifer eventually took.  She made plans to see Jennifer that night at the concert, and said Jennifer never said she felt too sick to attend.

Carlson said Jennifer left on her own and did not ask for assistance.

He ended by asking whether Entercom was legally responsible for Jennifer's death, and said "If my clients do have legal responsibility, does Jennifer Strange have any?

Attorney Doug Sullivan who represents Entercom Market Manager John Geary, said this was a sad tragedy, but the evidence would show that that Geary had virtually nothing to do with this conduct.  He said he's hired good experienced people, Pechota and Weed, and that they were aware of contest guidelines.   He said Geary did not know about the contest because he had six radio stations to run, six different businesses, and was not responsible for day to day supervision of contests.  He said that Geary only hears about a contest after it has gone through Legal, which in this case, it did not.

He spent some time shwoing the various facets of running six stations, with 25 different programs, 13 studios, and 130 employees.  He talked about the various departments involved in each one, including human resources, engineering, Information Technology, and more.

He talked about how Geary went into the contest room to get them to quiet down, and showed videotape taken from a security camera that no one was drinking water at that moment.

Sullivan said Geary could ot be personally liable, as he was not involved in the planning of the contest, and had no interactions with contestants.

In a videotaped deposition, Geary stated, "with one person overseeing six radio stations, I cannot go deep into the management of each one."

Louise Kramer, Geary's superior at Entercom, said the Market Manager functions as CEO of their market, with six radio stations, multiple transmitters, marketing departments, engineers, business... that they have to be macro managers, not micro.

Entercom CEO David Fields in a videotaped deposition said he would not expect John Geary to have first hand knowledge of a contest on their radio stations.

Sullivan said your would not hear evidence that Masi could not have handled the request about the contest, but that employees at the station just didn't try.

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