PROVO A judge is considering whether to pursue or throw out the case of a man who says he was waterboarded during a motivational exercise at work.
Chad Hudgens, who formerly worked for Prosper Inc., a Provo motivational coaching company, filed a lawsuit against team manager Joshua Christopherson, who he said had team members hold him down and pour water on his mouth and nose.
This exercise was to encourage members to work as hard at making sales as Hudgens did to breathe, the lawsuit filed in 4th District Court contends.
Evan Schmutz, attorney for Prosper and Christopherson, argued Monday that the entire case should be dismissed, adding that he believes the term "waterboarding" was used in the lawsuit for "shock value."
"The phrase waterboarding as alleged in the complaint is meaningless; it's not descriptive of action," Schmutz said. "It (has been) used to describe a technique of interrogation that has been criticized by government and individuals as being torture."
And torture is not what happened at the Provo motivational training exercise where Hudgens volunteered on May 29, 2007, Schmutz said.
However, Hudgens' attorney, Sean Egan, said the term waterboarding is appropriate because the results of that procedure described exactly what Hudgens felt.
"Suffocation and panic, feeling in the victim that he is drowning," Egan said. "(Christopherson) knew that Chad was suffocating, he knew that he was panicked and disoriented and that's the injury."
Judge Gary Stott told both sides he would rule in writing shortly.
"You both argue an interesting case," Stott said. "It's a strange way to motivate people to do something. But that's neither here nor there with respect to the case."
Schmutz also argued that the lawsuit and subsequent responses were "deficient" because they never clearly stated that Christopherson intentionally and knowingly conducted himself in a way that he knew would injure Hudgens, Schmutz said.
Such an argument might have allowed the case to move through a narrow exception window beyond a basic Workers' Compensation claim, to the status it was actually filed under.
But they never made that argument, Schmutz said. They only alleged that Christopherson conducted the exercise as an "attempt to improve his sales performances and ... the revenue of the company," according to the lawsuit.
Egan argued it was too early to dismiss the case and asked the judge to allow them to amend the complaint if he believed it was unclear.
"(There is) not a pleading deficiency," Egan said. "This doesn't give them the right to avoid being held accountable in this court and before a jury of their peers."
He argued that even though there's not an established public policy regarding waterboarding, the action is similar to hazing, which is legislatively prohibited.
"Now we have a situation the Legislature may have never contemplated," Egan said. "Someone in the guise of a motivational exercise engages what amounts to an act of hazing."
However, Schmutz argued it comes back to the wording in the lawsuit."He alleged specifically ... that Mr. Christopherson's intent was to motivate employees, to create a sense of togetherness, increase productivity with commitment," Schmutz said. "That being the case, you cannot ... say, 'No, I take it back, his intention was to hurt me, to cause me to have future depression, sleeplessness.' An amendment cannot cure that."