(Karl Heinz Spremberg)
Four years after the lead singer of the band Fishbone cracked the skull of a concertgoer with a stage dive, a federal judge has entered a judgment of $1.4 million against members of the band.
Kimberly Myers, who attended the February 2010 concert at the World Cafe Live in University City where Fishbone was the opening act, has had severe and persistent medical problems from the injuries she suffered when Angelo Moore dove from the stage and into the crowd where she was standing, U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania found.
He entered judgment against Moore and the band’s bassist, John Norwood Fisher, for $1.1 million in compensatory damages and a judgment against Moore for $250,000 in punitive damages.
“Moore, who refused to answer questions at his deposition regarding his use of illicit drugs on the date of the incident in question, intentionally dove from an elevated stage despite knowing that stage diving in and of itself poses a serious risk of harm to audience members. Further, Moore exhibits little remorse or impetus to change his conduct,” DuBois said in his discussion of punitive damages in the case captioned Myers v. Moore.
“Moore continues to stage dive at almost every performance and exhibits nothing but apathy … towards his victims, whom he repeatedly characterized, during his deposition, as ‘predators’ out to steal his money,” DuBois said.
During his deposition, “Moore invoked the Fifth Amendment privilege against self-incrimination in response to the question of ‘whether or not [he] did any drugs for the World Cafe Live show on February 23, 2010,’” DuBois said. “The court infers from Moore’s invocation of the Fifth Amendment that his testimony would have been unfavorable to his interests.”
The judge had noted that both Moore and Fisher knew that stage diving poses a risk of injury to audience members since Moore had testified during his deposition that ambulances are called to the band’s concert venues every couple of months for an injury.
However, “Moore’s primary concern when he is stage diving is with his own safety and with the potential for what Moore believes to be frivolous lawsuits filed by ‘predators,’” DuBois said.
In a footnote, DuBois cited Moore’s testimony that said when he stage dives, he tries to jump into the most densely packed crowd in order to minimize his own potential for injury.
In another footnote, DuBois quoted Moore explaining that he saw some audience members as litigious “predators” after a suit similar to Myers’ was filed elsewhere. After that suit was filed, Moore said, “I thought to myself, it’s predators out there, man, there’s predators to me.”
The footnote went on to quote from Moore’s deposition, “The authenticity of my performance is cramped because I have this thing going on in the back of my head if there’s somebody out there that’s trying to metaphorically step in front of the car so that they can get hit so they can make a bunch of money.”
Myers didn’t know that Fishbone was scheduled to be the opening act of the concert and “she had no reason to anticipate any stage diving,” DuBois said.
Neither Moore nor Fisher, who is identified in the opinion as having “the final word on band decisions,” notified the audience at World Cafe Live that there would be stage diving, DuBois said.
When Moore did dive off the stage that night, he knocked Myers to the ground where she lost consciousness and “Moore and Fisher continued to perform as if nothing had happened,” DuBois said.
Myers was taken by ambulance to the Hospital of the University of Pennsylvania where she was diagnosed with a skull fracture, a ruptured eardrum, and a fractured clavicle, according to the opinion.
Those injuries have since turned into a host of medical problems in the years since, detailed in two full pages of DuBois’ opinion.
Myers’ “injuries are severe and have caused her constant pain and permanent damage, including permanent hearing loss and cognitive difficulties,” DuBois said. She “has undergone three surgeries for her clavicle injury, which have left her with unsightly scars, and she plans to undergo, in the near future, a fourth surgery to treat her thoracic outlet syndrome.”
Her “other injuries, many of which are expected to be permanent, have similarly necessitated significant medical treatment, led to considerable embarrassment, and interfered with her activities of daily living and her ability to enjoy life’s pleasures,” DuBois said.
He awarded her $750,000 in past and future noneconomic damages.
The judge did, however, deny Myers’ request for compensation based on diminished future earnings, an argument she based on her inability to now finish an MBA program that she had begun in 2001. She had left the program before attending the concert and her estimated loss of $184,842 based on the assumption that she may have finished the program if not for her injuries was too speculative, DuBois said.
Myers was represented by Neil E. Jokelson of Neil E. Jokelson & Associates in Philadelphia, who couldn’t immediately be reached for comment.
Amee Hamlin of Silverback Artist Management, who manages the band, couldn’t immediately be reached for comment.
(Copies of the 14-page opinion in Myers v. Moore, PICS No. 14-0230, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •