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From Products Liability Law Daily, August 24, 2015

Taser has no duty to warn of risk of cardiac arrest from chest shots

By Pamela C. Maloney, J.D.

The manufacturer of a taser used by a police officer to subdue a suspect who died of cardiac arrest after receiving two shots to the chest had no duty to warn end users of the risk of cardiac arrest from chest shots, the U.S. Court of Appeals for the Sixth Circuit ruled. There was no proof that the risk of cardiac arrest was known or knowable at the time the police department purchased the taser used by the officer (Mitchell v. City of Warren, August 21, 2015, Sutton, J.).

Background. When Robert Mitchell resisted arrest, a police officer discharged two taser darts from his X26 taser into Taylor’s chest. Taylor experienced cardiac arrest and died shortly after the taser hit. Taylor’s mother, as his personal representative, brought a products liability action against TASER International, Inc. (Taser), the manufacturer of the weapon, alleging failure to warn, gross negligence, and breach of express and implied warranties. The district court granted summary judgment to Taser on the estate’s claims that the company negligently failed to warn end-users about the risk of cardiac arrest from an X26 discharge to the chest, and that the company’s training program negligently assured end-users that the device was safe when aimed at the chest. The district court ruled that (1) the company had no duty to warn the police department about any cardiac risks at the time of sale in August 2006; (2) Michigan law precluded any post-sale duty to warn; (3) Taser had not assumed a duty to warn by virtue of its training regimen; and (4) the estate could not prove that the police officer would have ever seen a warning even if Taser had issued one [see Products Liability Law Daily’s July 24, 2014 analysis]. The estate appealed.

Duty to warn. The gist of the estate’s duty to warn claim was that the company should have warned police departments about the risks of shooting the darts into the upper part of the front torso, i.e., the chest. In evaluating this claim, the court looked to Michigan law, not common law, for guidance and found that any liability for failure to warn under the statute required a showing that the company knew or should have known about the risk of cardiac arrest from an X26 shot based on the information available at the time of sale. The level of proof must establish that the risk of cardiac arrest actually, not possibly, existed. The estate failed to meet this standard. All that the relevant medical literature presented in the case showed was that a chest shot from a taser created a material risk of cardiac capture. It did not show any more than a possibility that cardiac capture might cause ventricular fibrillation which could cause cardiac arrest. Combining the medical literature with the statistics regarding the effectiveness of taser use in the field, the court concluded that the evidence failed to create a triable issue of fact about the company’s duty to warn.

Post-sale warning duty. The estate’s alternative argument that the company had a post-sale duty to warn based on studies and information that came to light after the sale fared no better under Michigan law, the court stated. The statute limits the scientific, technical, or medical information relevant to failure-to-warn claims to information reasonably available at the time the specific unit of the product left the control of the manufacturer. Thus, given that the company had no duty to warn based on the available pre-sale information, it could not be liable if later studies suggested safer ways to design and market its products.

Continuing duty to warn. The court also rejected the argument that the company assumed a continuing duty to warn the police department by virtue of its continued updating of its training manuals, noting that the Michigan Supreme Court has never recognized that such a duty exists. Although the court had assumed that a continuing duty to warn could arise if “a unique or controlling relationship” developed between the manufacturer and end user, the only connection between the company and the police department after the initial training session was the mailing of updates. According to the record, training was done by one of the company’s independent distributors and thus, there was no sufficiently unique or controlling relationship to justify imposing on the company a perpetual duty to warn the police department about all the X26 dangers that surfaced after purchase.

Negligent training claim. The estate also argued as part of its continuing duty to warn claim that the company had assumed a duty of care through its training program and thus owed its customers a duty to warn of dangers revealed through new studies that came to light after the point of sale. On appeal, this argument was cast in terms of the company’s liability independent of products liability because it kept telling its customers to aim at center mass and kept marketing the X26 as safe after it knew or should have known better. This estate’s theory asserts not a failure to warn but that some other affirmative aspect of the training was negligent. However, under Michigan law, a person has a duty to guard only against foreseeable injuries. The known risk of cardiac arrest was no less tentative and speculative at the time of training than it was a month earlier at the point of sale. Thus, the company had no responsibility to prevent the harm the suspect suffered by refraining from instructing its customers to aim at center mass.

The case is No. 14-2075.

Attorneys: John Burton (The Law Offices of John Burton) for Cora Mitchell. Pamela B. Petersen for Taser International, Inc.

Companies: Taser International, Inc.

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