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From Products Liability Law Daily, April 4, 2014

Additional warning would not have changed police officers’ behavior in action against manufacturer of electronic control device

By Susan Lasser, J.D.

The manufacturer of an electronic control device (ECD) was entitled to judgment as a matter of law on failure-to-warn claims brought by the mother of an individual who was shocked by the device when stopped by the police and who died of cardiopulmonary arrest following the incident, the U.S. Court of Appeals for the Eighth Circuit ruled, affirming a lower court decision. The court held that the mother’s failure-to-warn claim failed as a matter of law because she did not establish that an additional warning would have changed the behavior of the officers involved in the police stop. In addition, the court ruled that there was insufficient evidence to establish that the device was unreasonably dangerous as designed (Bachtel v. TASER International, Inc., April 3, 2014, Murphy, D.).

Background. Stanley Harlan was stopped by a police officer for speeding at approximately 12:30 a.m. on August 28, 2008. Other police officers arrived on the scene and Harlan resisted during the officers’ attempt to restrain him. One of the officers, Officer Jeremy Baird, deployed his electronic control device (ECD or taser), manufactured by TASER International, Inc. (TASER), to subdue Harlan, by firing the device, at an approximate distance of two feet from Harlan, sending two darts directly into his chest. According to the taser’s data recorder, Baird fired three times, sending an electrical current into Harlan’s chest for 21 seconds, 7 seconds, and 3 seconds respectively. Harlan fell to the ground and appeared to lose consciousness. He was pronounced dead at approximately 2 a.m., and the medical examiner determined his cause of death was “cardiopulmonary arrest shortly after the use of physical restraint and electro-muscular disruption technology device.”

The record indicated that the device used in the incident was TASER model X26 ECD, which was introduced in 2003. When fired, the X26 ECD deploys two probes which attach to the body and deliver electrical current (of 580 volts) into the subject through thin insulated wires. Pulling and releasing the trigger of the X26 ECD results in a 5 second electrical discharge cycle, although an officer may extend the cycle by holding down the trigger. The device produces 19 electrical pulses per second, each pulse lasting about 100 microseconds. The electrical current forces the subject’s muscles to contract, temporarily limiting muscle control and allowing police officers time to subdue the individual.

TASER shipped each X26 ECD with a product manual containing user instructions, safety instructions, and product warnings for the device. Also provided was an instructor training program to certify law enforcement officers for training end users within their agencies. To maintain certification, the instructors must take an additional course every two years; and TASER provides written training materials, annually updated, to certified instructors for use in training. Certified trainers are instructed to refer to TASER’s website a few days before conducting a training program to ensure they have the most recent materials. The police department in the case had received its shipment of devices in June 2004. The 2004 operating manual warned that the X26 “should only be deployed in situations where the alternative would be to use other force measures which carry similar or higher degrees of risk.” There were subsequent updates to the warnings and training materials relating to the risk of use and the application of the device.

Harlan’s mother, Athena Bachtel, brought an excessive force and deliberate indifference case against the City of Moberly, Officer Baird, and a police sergeant under 42 U.S.C. §1983. That case settled in June 2009 for $2.4 million. She then brought suit against TASER International in August 19, 2011, under Missouri tort law, alleging that the X26 ECD used by Officer Baird was a contributing factor causing her son’s death. She asserted both strict liability and negligence on the grounds that (1) TASER failed to provide adequate warnings that prolonged or repeated applications by the X26 ECD to the chest could lead to ventricular fibrillation and cardiac arrest, and (2) TASER’s X26 ECD was defectively designed. TASER removed the case to federal court and the district court granted the manufacturer’s motion to exclude the testimony of Bachtel’s proposed expert, Dr. Douglas Zipes, on the adequacy of the warnings, testing, and design of the device after the court concluded that he lacked sufficient experience and expertise on those subjects. The district court then granted TASER’s motion for summary judgment on all claims. Bachtel appealed.

Failure to warn—causation. Under Missouri law, to establish the element of causation for her strict liability failure-to-warn claim (i.e., that Harlan was damaged as a result of the X26 ECD being sold without an adequate warning), Bachtel was required to show both that the product caused Harlan’s death and that a warning would have altered the behavior of the officers involved in the incident. The court of appeals concluded that the claim failed as a matter of law because Bachtel did not establish on the record made in the district court that an additional warning would have changed the behavior of the officers involved in Harlan’s stop.

Expert testimony. The district court first ruled that because Bachtel failed to provide expert testimony that additional warnings could have altered Officer Baird’s behavior, the failure-to-warn claim failed. While expert testimony is not required under Missouri law in all strict liability cases, the appellate court determined that the district court did not abuse its discretion in determining that expert testimony was required in the case, which involved a complex subject matter, in order to assist the jury, which did not “possess the experience or knowledge of the subject matter sufficient to enable them to reach an intelligent opinion without help.” Missouri courts had found previously that warnings and how people react to them were subjects about which jurors had no particular training and, thus, could not form accurate opinions. The appellate court said this was particularly true in a case that turned on a warning’s effect on a police officer involved in a physical confrontation in the field.

The appellate court also found that it was not an abuse of discretion to exclude Zipes’ testimony on the issue of whether a different or additional warning would have altered Officer Baird’s actions during the incident. Although he was an expert on electrophysiology and the impact of electrical impulses on heart rhythm, Dr. Zipes admitted that he had had no experience in crafting warnings for law enforcement weapons, tools, or equipment. Nor was he familiar with law enforcement training protocols or use of force guidelines, and he lacked specific knowledge about Officer Baird’s training or expertise in how such training would impact an officer’s actions in the field.

Heeding presumption. The court of appeals additionally rejected Bachtel’s argument that she was entitled to a presumption under Missouri law that an adequate warning would have been read and heeded by Officer Baird if provided. To establish a rebuttable presumption that Officer Baird would have read and heeded an adequate warning, Bachtel had to show that there was “a legitimate jury question” as to whether Officer Baird knew of the “specific danger that caused [Harlan’s] injury.” Officer Baird pleaded the Fifth Amendment and did not testify in this case, making direct evidence of his knowledge unavailable. However, the record showed that the outdated version 12 training program handouts used in the officer’s training included a chart indicating that the electrical output of the X26 ECD could not cause ventricular fibrillation when applied in 5 second increments directly to a subject’s chest. Additionally, the sergeant testified that he trained officers to aim for “center mass” when they were employing the device against a combative individual without the support of other officers.

The appellate court determined that even if it were to conclude that there was a legitimate jury question as to whether Officer Baird had been made aware of the specific risk of cardiac danger when the device was fired directly at a subject’s chest, such a conclusion would be rebuttable by undisputed evidence in the record that he had not been instructed on available warnings and did not heed the limited training he had received. Also, the evidence showed that the officer never read the warning in the 2004 operating manual about the risk of killing someone when the device is used, and the appellate court concluded that he did not read the available March 2007 product warning urging officers to begin restraint procedures as soon as it was reasonably safe to do so, so as to “minimize the total duration of exertion and stress experienced by the subject.” Nor did he read the updated instructions in the version 13 training materials to avoid extended or repeated applications of the device directly to the chest, the court said. Therefore, the Eighth Circuit concluded that there was no genuine dispute on the record that the officer would have read any additional warning that the manufacturer may have added relating to the cardiac danger of the X26 ECD in any of its product warnings or in any training materials prepared after January 1, 2005. The record further indicated that Baird did not heed the instructions that the sergeant had provided in his training program. The sergeant instructed that the back was the preferred deployment location, and that a “chest shot” should only be taken when an officer is confronted by a “combative individual” and is unable to maneuver to target the person’s back. Despite this training, Baird fired directly at Harlan’s chest from two feet away, even though three other officers were at the scene and one of Harlan’s hands had already been cuffed without using force. The court therefore concluded that even if an adequate warning had appeared in the version 12 training program, Officer Baird would not have heeded it. The court held that the presumption that Officer Baird would have read and heeded a warning as to the cardiac danger of firing the X26 ECD at a subject’s chest was unavailable as a matter of law.

Failure to warn—strict liability and negligence. Because the causation elements under Missouri law are the same for both strict liability and negligent failure to warn, the appellate court held that Bachtel’s failure to establish that an additional warning would have altered the behavior of Officer Baird was fatal to both her strict liability and her negligence claims for failure to warn. Thus, TASER was entitled to summary judgment on both claims.

Design defect claim. The Eighth Circuit also concluded that Bachtel failed to present evidence that the X26 ECD used by Officer Baird was unreasonably dangerous as designed. Bachtel’s design defect claim was based solely on the fact that the X26 ECD could be lethal and was therefore unreasonably dangerous. Under Missouri law, however, strict liability does not require that a manufacturer is an insurer for any and all injuries caused by its products. The court said that the fact of an injury alone was, thus, insufficient to prove the unreasonable dangerousness of a product in a design defect case. The evidence the plaintiff pointed to in her brief on appeal established only a link between the device and the injury. That evidence included: the testimony of Dr. Zipes that electrical current could capture heart rhythm, audio and video recordings of the Harlan stop, and eyewitness accounts about Harlan’s response to the electrical current the taser injected into his chest. Because Bachtel failed to demonstrate any “specific design choices” that rendered the model X26 ECD unreasonably dangerous, the court held that her claim failed as a matter of law.

The case number is 13-1445.

Attorneys: Steven Joseph Gunn (The Ryals Law Firm) for Athena Bachtel. Michael A. Brave for TASER International, Inc.

Companies: TASER International, Inc.

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