FTC adds ammo to lawsuits for deaths
By Frank J. Murray
Lawyers for the parents of three girls murdered in Paducah, Ky., are considering a national class-action lawsuit using a Federal Trade Commission finding that Hollywood targets children in marketing violent movies and videos.
"I think that we have some very big bullets for our guns. The FTC report is just tailor-made for what we've been saying," said Michael Breen of Bowling Green, Ky.
"This is kind of like the embryonic days of tobacco litigation. They started out as individual lawsuits, too," added co-counsel John B. Thompson of Coral Gables, Fla., who has been active on issues involving rap music and two children's suicides linked to a "South Park" TV episode.
"You can't buy off a parent whose child is dead," Mr. Thompson said.
But a lawyer who worked on class-action lawsuits against "Big Tobacco" disputed that strategy - despite marketing parallels to the now-banned Joe Camel advertisements.
"There is a possibility you could get a court that would be receptive to that argument in a single case. I can't imagine you could geta court that would be receptive to that as a class action," said Daniel G. Abel, who helps manage class-action lawsuits on guns and tobacco for New Orleans super lawyer Wendell H. Gauthier.
"The tobacco industry was forced to discontinue its use of Joe Camel because it obviously targeted kids. Well, Hollywood has a Joe Camel problem of its own - aggressive marketing of adult material to underage children," said Robert Knight of the Family Research Council. On May 28, 1997, the FTC charged R.J. Reynolds Co. with "unfair trade practice" for the Joe Camel ads targeted at children, but later dismissed the charge after RJR agreed with state attorneys general to no longer use the ads.
Mr. Breen said a legal concept called "comparative fault" allows juries to set damages and then apportion blame among various parties, including the killer. A jury could leave the entertainment industry partially liable for a share of large judgments.
"There's nothing theoretical about victims," Mr. Breen said. "There are a half million incidents of school violence a month, in primary and secondary schools and 10 percent involve serious crimes such as rape, robbery, assault or weapons. If even a percentage of those is entertainment-induced, then by all means you have the makings of an action that could seek class relief."
He said FTC data released Monday "shows correlation between seeing violent images on computer, TV or movie screen and violent conduct on the part of the viewer." Mr. Abel didn't see it as clearly.
"There's a substantial difference between somebody who's been shot and someone who is emotionally injured after seeing an ad. A court would have to find a connection between the cause and effect. That is complex, and it sparks First Amendment issues," Mr. Abel said.
Mr. Breen and Mr. Thompson are part of the legal team seeking $130 million from some of the biggest entertainment companies - among them Time Warner, Nintendo and Sega - for the families of Jessica James, Kayce Steger and Nicole Hadley, who were killed at school when Michael Carneal, 14, opened fire on their prayer group Dec. 1, 1997.
The Paducah case is one of two notable lawsuits taking on the entertainment industry
In Louisiana, Lonnie Byers is moving ahead with his lawsuit against Time Warner, killer Sarah Edmondson and her prominent parents. He is the widower of shop clerk Patsy Ann Byers, who was paralyzed after being shot during a 1995 crime spree by Ben Darras and Sarah Edmondson. Mrs. Byers later died of cancer.
Edmondson said she and Darras, both 18, started killing after watching a video of "Natural Born Killers" and then watched the movie six times a day during their multistate rampage.
Producer/director Oliver Stone testified at a two-day deposition session in July after industry lawyers failed to have the U.S. Supreme Court throw out the case.
A three-judge Louisiana Court of Appeal panel said the accusation that the movie incited the shooting that paralyzed Mrs. Byers nullified the First Amendment defense Time Warner raised, and said Mr. Byers was within his rights to charge that the producers intended to incite viewers.
Other appeals courts have upheld more than a dozen murder prosecutions in which "Natural Born Killers" was cited as a motivating factor.
Mr. Byers' lawyer, Randolph A. Piedrahita of Baton Rouge, La., who helped take Mr. Stone's deposition, said yesterday he was seeking information on the FTC report but that he couldn't predict its effect on any class-action strategy.
"You're asking a tough question, but I have no comment right now," he said, expressing caution about discussing the case out of court.
Another lawyer in that case, Joseph H. Simpson of Amite, La., denied trying to censor Hollywood's creativity.
"But we feel something should be done about the violence on television and movies. Hopefully the industry will come to its senses," he said.
Mr. Breen said the Kentucky lawsuit accusations parallel the Federal Trade Commission findings.
"The FTC found that these people are targeting a juvenile audience with these products and that violence begets violence," he said. "I think in light of the FTC report we may have undervalued the case by asking $130 million, of which $100 million would be punitive damages."
Best-selling author John Grisham said he encouraged the lawsuit that brought Mr. Stone and Time Warner into court because an old friend was killed by the same people the day before they shot Mrs. Byers.
"Oliver Stone is saying murder is cool and fun, murder is a high, murder is a drug to be used at will. The more you kill, the cooler you are," Mr. Grisham said in a newspaper interview.
"Natural Born Killers" also was implicated in the Paducah shooting along with violent video games of the genre indicted by the FTC Monday, games with names like Doom and Quake.
In a separate state case in August, the Paducah parents won a $42 million settlement from the killer, which they consider "symbolic" if uncollectible.
Their federal lawsUit against the industry was dismissed April 6 by senior U.S. District Judge Edward H. Johnstone, who summarilY dismissed the case in April, in part on grounds that entertainment defendants couldn't have foreseen the effects their movies and videos would have on children.
"This was a tragic situation but . . . tragedies such as this simply defy rational explanation and courts should not pretend otherwise," the judge said.
"We're going to get that judge reversed and when we're back up running, we're going to have the subpoena power the FTC did not have," Mr. Thompson said. "Others who want to file lawsuits are going to be watching us and you're going to see a lot of them following us."
An advocate in disputes involving rapper Ice T and the 2 Live Crew obscenity case, Mr. Thompson represents parents of two children who he claims hanged themselves after watching the same episode of "South Park."