Home > Uncategorized > New Ninth Cir. Case – Taser Product Liability – No Failure To Warn – Risk Not Knowable

New Ninth Cir. Case – Taser Product Liability – No Failure To Warn – Risk Not Knowable

July 12, 2012

Rosa v. Taser International, Inc. (Ninth Cir., No. 09-17792, filed July 10, 2012, Appeal from the United States District Court for the Northern District of California Case No. 5:05-cv-03577-JF)

The following summarizes and condenses pertinent parts of the Court’s decision. You need to read the Court’s entire decision for a complete understanding whether the case is applicable in your circumstance. This summary does not provide legal or other professional advice.

Police officers tasered Michael multiple times during their subdue and arrest. “Until the handcuffs were in place, Michael continued to struggle and did not appear to be in medical distress. After officers had Michael in restraints, they rolled him onto his side. At this point, Michael slumped, his lips blue, his breathing erratic. He quickly stopped breathing entirely. Officers were unable to find a pulse and immediately began resuscitation efforts. Michael was transported to the hospital, where resuscitation efforts continued. But Michael’s heart went into atrial arrhythmia (a form of irregular heartbeat), tachycardia (accelerated heartbeat), and finally asystole (cardiac arrest). He was pronounced dead at about 12:30 a.m. on August 30, 2004. [Doctor] performed the autopsy. Discovering high levels of methamphetamine in Michael’s blood, [Doctor] concluded that his cause of death was ‘ventricular arrhythmia . . . due to methamphetamine intoxication.’  He listed ‘Taser application and arrest by police’ as contributing conditions. Michael’s death was subsequently linked to metabolic acidosis, a condition under which lactic acid—a byproduct of physical exertion—accumulates more quickly than the body can dispose of it, causing the pH in the body to decrease. The condition makes sudden cardiac arrest more likely.”

Following Michael’s death, Michael’s parents and his daughter Holly sued TASER, as manufacturer of the M26 Taser, “asserting that Michael died because it had provided an inadequate warning of the dangers of the product to the officers who used it. They pursued both strict liability and negligence theories underCalifornialaw based upon this failure to warn. At the times in question, TASER provided warnings that read in relevant part:

While the medical evidence strongly supports the [M26] will not cause lasting effects or fatality, it is important to remember the very nature of physical confrontation involves a degree of risk that someone will get hurt or may even be killed due to unforeseen circumstances and individual susceptibilities. Accordingly, the [M26] should be treated as a serious weapon and should only be deployed in situations where the alternative would be to use other force measures which carry similar or higher degrees of risk.”

Plaintiffs claimed that TASER also should have warned that repeated exposure to the M26 carried its own risks, particularly the risk that it can cause fatal levels of metabolic acidosis.

After the conclusion of discovery, the District Court awarded summary judgment to the defendant. Summary judgment was affirmed on appeal to the Ninth Circuit.

In pertinent part, the Court held “Californialaw places a duty on manufacturers to warn of a ‘particular risk’ if it is ‘known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.’ (Citations omitted). Thus, this case turns on what was ‘knowable’ by a manufacturer of electronic control devices in December 2003. The [Plaintiffs’] argue essentially that any risk that was discoverable through modern technology, no matter how unsubstantiated, was knowable by TASER. We do not interpret the standard so broadly.

Though theCaliforniacourts have never announced a comprehensive standard of when a particular risk is ‘knowable,’ a few key considerations are clear. ‘[A] manufacturer is held to the knowledge and skill of an expert in the field; it is obliged to keep abreast of any scientific discoveries and is presumed to know the results of all such advances.’ (Citations omitted). A manufacturer cannot defeat liability because it did not review the relevant scientific literature.

But a manufacturer is not under a duty to warn of ‘every report of a possible risk, no matter how speculative, conjectural, or tentative,’ because ‘inundat[ing the public] indiscriminately with notice of any and every hint of danger’ would ‘inevitably dilut[e] the force of any specific warning given.’”

Tate Comment: Interesting that in this important area of law and liability the California courts have not announced a comprehensive standard of when a particular risk is knowable so that designers and manufacturers can be more certain that they have satisfied their responsibilities.  Of course, it can also be argued that it is better to have such a standard determined on a case by case basis.  But in this case you can be sure that both the plaintiffs and the manufacturer expended considerable time and resources both at the trial court level and on appeal, and that absent some agreement of the parties plaintiffs might be looking at a large costs bill from the defendant.

Plaintiffs primarily relied on four peer-reviewed articles to establish that the risk that TASER’s products could cause fatal levels of metabolic acidosis was knowable by December 2003. The Court concluded that the articles did not present a triable issue of fact that the risk was more than purely speculative.  The first two articles contained no causation link between acidosis and the use of electronic control devices.  In the third article or study “[Doctors] hypothesized that electronic control devices may contribute to the condition by ‘affect[ing] acid-base balance’ of the individuals exposed to them. (Citations omitted). However, they made no attempt to test the hypothesis and noted that there was ‘no adequate information’ to link these deaths to exposure to TASER’s products. This sort of hypothetical side effect is insufficient to require a warning under Californialaw.’”  The fourth article was a study that was performed on behalf of the Department of Defense in 1999, but that did not become publicly available until after Michael’s death.  “Assuming that a document that is not publicly available can constitute generally accepted medical knowledge—which we doubt—this study suffers the same problem as the article from The Lancet. It merely states that ‘deaths following Taser use may be due to acidosis.’ (Citations omitted). It does not purport to establish that causal link and explicitly limits the reach of its findings due to its small data set.’”  The Court also ruled the fourth article inadmissible to establish what was knowable in December 2003.

Similarly, the Court concluded that Plaintiffs failed to establish a triable issue of fact on their separate negligence claim, and that summary judgment was also properly awarded to defendant on that claim.

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