September 19, 2009
Opening arguments continued Friday in trial of the Wm. A, Strange et al vs. Entercom Sacramento LLC et al.
Attorney Roger Dreyer, who represents plaintiff Billy Strange and his children Ryland, 5, and Jorie, 3, laid out his case in detail against Entercom Sacramento, LLC, Market Manager John Geary, and Entercom Communications LLC.
Dreyer began the morning with an exhibit of Entercom's Contest Guidelines, sent to Market Manager John Geary, Station Manager Steve Weed, and Promotions Director Robin Pechota 8-31-06, four months prior to the "Hold Your Wee for a Nintendo Wii" contest which resulted in Jennifer Strange's death. Entercom Communications attorney Carmela Masi also conducted a training session on the guidelines with Weed and Pechota in October 2006..
The Guidelines read, "Contests which are illegal, dangerous, misleading or rigged or in bad taste must be avoided." "Last minute contest rules may be escalated to the Market Manager." Then under the heading, "Review by Legal," "Written rules should be reviewed by your primary legal contact for the following: any high risk, dangerous, or borderline acceptable contests." (Dreyer emphasized the document said written rules should be reviewed, not must be reviewed.) Importantly, the document also stated that material terms must be disclosed in both writing and in on-air announcements prior to the contest. (This is so everyone understands all the rules before any contest begins.)
Dreyer said the evidence will show there was a set of written rules for the "Wii" contest, that it had been drafted by promotions Director Robin Pechota, using language from a different contest, "My Right Arm," which had been approved by the Legal department ("Legal."). But he said the rules were never posted online in advance of the contest, nor were they read on the air, as required by Entercom Communications. Dreyer said Jennifer Strange practiced the day before by drinking one 8-ounce glass of water, then timing how long she could hold it; as she thought that was what the contest required.
The rules stated that participants would drink one eight ounce glass of water every 15 minutes until the end. The document further stated that participation may be hazardous, and particpants had to represent they were physically, psychologically, and medicall able to participate. Also that Finalists assumed all risks associated with participating in the contest. However, the written rules were never given to the particpants.
Instead, as contestants came into the studio on the morning of January 12, 2007, they were given a release form titled, "Release for All Claims Including Personal Injury," which did not detail any potential hazards that could arise from participating in a water drinking contest. Dreyer noted that no one at Entercom has taken responsibility for drafting that release, and the Court has already ruled it is not a waiver.
They were subsequently advised by the Morning Rave hosts that they would have to drink one eight ounce glass of water every ten minutes, not fifteen, as their own rules stated, and that anyone who threw up or urinated would be out. About midway through the contest, the Rave Hosts again changed the rules on the fly, saying contestants must now drink 16.9 ounce bottles of water instead, to speed up the contest.
Dreyer also cited a deposition which revealed that in December 2006, just weeks before the "Wii" contest, the on-air team joked about the 2005 water drinking death of Chico State student Matthew Carrington in a fraternity hazing incident. During that 12-2006 Morning Rave show, on air hosts encouraged their "gag guy Fester" to drink several vases of water from a tulip vase. "Fester" complained of being lightheaded at the time."
(Editor note: That incident, which also included having cold water thrown on Carrington and his having to perform pushups after drinking massive amounts of water, was widely publicized in the Sacramento area in 2005. A search of the Sacramento Bee archives show 15 stories appeared on this case of water intoxication before the 2007 Jennifer Strange death. The incident resulted in anti-hazing legislation known as Matt's Law.)
Dreyer noted contestants were not told about the Carrington death, nor were they told that the "Gag Guy Fester" had felt ill after consuming so much water.
Dreyer played audio clips of the "Wii" contest to a rapt jury, who heard the same on-air team say before the contest began, "Can't you get water poisoning and die?"
(Editor note: most of the audio played in opening statements can also be heard in the Broadcast Blues story on Jennifer Strange.)
Dreyer said that before the contest began, a nurse called the station, telling the On Air team that water intoxication was dangerous. That call did not go on the air. He said the show producer Liz Diaz received several calls about the dangers, but she was rebuffed by the on-air team, saying, "we've got releases, so we are not responsible," and when she tried to bring her concerns to Market Manager John Geary, he was too busy.
Dreyer also said former lifeguard from Chico called into the show to warn them of the Chico incident. He also played the "Eva Brooks" call, in which she says "Those people who are drinking all that water can get sick and possibly die from water intoxication." The DJ's say they've signed releases so they are not responsible.
This call did go on the air, the attorney for Entercom, Don Carlson, said in his opening argument that contestants heard that call on the radio as the contest was going on. (More on the Defense Opening Statement later.)
Dreyer showed pictures of contestants during the contest, including one of a woman who just before she vomited. He said other contestants had headaches, nausea, were lightheaded and vomiting.
Then he played the audio of Jennifer Strange, telling the Morning Rave Hosts, "My head hurts. They told me it's from the water. " "This is what it feels like when you're drowning," the DJ told her. A grim looking jury glanced at Jennifer's widower, Billy Strange, during this audio clip.
Dreyer said after the contest, Jennifer told on air host Steve Maney that she didn’t think she could drive; he asked her to wait in the lobby until she felt better. No medical attention was offered.
Jennifer called her husband, Billy, and told him she felt sick and was going to go home to go to bed. When her Mother Nina could not reach her by phone, she went to Jennifer's house, where she found Jennifer dead at 2 PM.
Dreyer played a video deposition of Market Manager John Geary, who said the Market Manager is responsible for programming in bad taste, but agreed that if staff didn't tell him, he would not be able to give input." He then played a deposition clip of Entercom Communications CEO David Fields who said he had no idea someone could die from this, but also a contest with potential for vomiting and urinating oneself was not a contest they would have done. Dreyer said it was clear the contest had never gone to "Legal."
He also said expert testimony would show the psychology of a contest like this, an environment of competition where contestants trusted the radio station.
Dreyer concluded by saying that Jennifer Strange was given no notice of hazards, and while both sides stipulated that the contest did cause Jennifer's death, the question would be ,"Is it their conduct that caused her death, or her conduct that caused her death?"
Attorney Harvey Levine, who represents Jennifer's elder son, Keegan Sims, then began his own opening statement. He showed a floorplan of KDND's offices and studios, and showed the proximity of the break room, where the contest was held, and the conference room, where a sales meeting was being held, and said Market Manager John Geary came into the room at one point telling them to hold down the noise.
He also played another audio clip of the contest, where people are vomiting in "chain reaction. "
Levine turned his attention to Entercom attorney Carmela Masi, who was the primary legal contact for KDND. Masi testified in a videotaped deposition that it was an ironclad rule that anytime a contest required ingestion or elements of physicality, a medical person must be present. However, this ironclad statement was not included in writing in Entercom's Contest Guidelines. No medical personnel were present for the "Wii" contest.
Levine said a witness will liken doing a radio contest like "Wii" to the fascination in watching a car wreck, and that once you get the audience in that zone, you don’t want them to push another button on the radio dial. He said as the program began, the hosts knew what they wer doing, that comments about dying from water intoxication and references to the hazing incident were meant to excite the audience.
He reiterated that the release form contestants had signed was invalid under California law, as it did not mention the contest was potentially hazardous. He noted that Promotions Director Robin Pechota testified that she had received no training on running contests, and that she "trusted her gut" as to whether something might be dangerous.
Pechota was to clear the contest rules with Masi; but Levine showed that Masi, who works out of the Boston office, is reponsible for a myriad of legal responsibities for 30 of Entercom's 110 stations, and painted a picture of a lawyer too busy to attend to all her tasks, too busy to vet contests, and who testified that Legal was overloaded. He also said the attitiude from employees was, "If I don't know if it's dangerous, I don't go to Legal because it might be."
Levine also made some comments which did not draw objections. He talked about John Geary being more interested in advertising sales than the contestants, and told the jury that then 17 year old Jennifer refused to have an abortion, but chose to raise her son Keegan alone,
Levine concluded with a picture of Jennifer in her wedding dress, with her smiling som Keegan hugging her. When asked what he missed about her most, Keegan simply replied, "Her."
(Editor's Note: I will post the Defense Opening Statement tomorrow.)