Wednesday, July 11, 2012
Ninth Circuit Rejects Products Liability Suit Against Taser Maker
By KENNETH OFGANG, Staff Writer
The manufacturer of the taser used against a Northern California man, the use of which by police apparently contributed to his death, cannot be held liable on products liability theories, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In an opinion by Judge Diarmuid F. O’Scannlain, the panel said that TASER International, Inc. had no duty, at the time of the incident eight years ago, to warn police departments that repeated use of the company’s M26 “electronic control device” could cause metabolic acidosis.
Metabolic acidosis is 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.
Heart Attack Death
Pathologists determined that the heart attack death of Michael Robert Rosa was linked to metabolic acidosis after Rosa was tased multiple times by officers in the City of Del Rey Oaks. The officers testified that they approached Rosa because they had received a call from a resident regarding strange behavior, and that Rosa appeared to be “either really high or crazy” and was “moving really awkwardly, kind of just like freaking out.”
As more officers arrived, Rosa jumped over a fence, assumed a batter’s stance, and began swinging a piece of two-by-four, according to the testimony. After he refused commands, one of the officers, who said he feared for his safety, deployed the taser.
Rosa was stunned but not incapacitated, the officers said, and again reached for the two-by-four. Despite being tased several more times, he continued to struggle as officers attempted to handcuff him.
The officers said he did not appear to be in medical distress until after they had him in restraints and turned him on his side, at which point he stopped breathing and was rushed to the hospital. He was pronounced dead about 90 minutes after his initial encounter with the police.
The doctor who performed the autopsy said he died of “ventricular arrhythmia . . . due to methamphetamine intoxication.” He listed “Taser application and arrest by police” as contributing conditions; the link to metabolic acidosis was discovered later.
Rosa’s family sued TASER, along with the police and their agencies. Yesterday’s appeal was solely from an order granting summary judgment to TASER.
U.S. District Judge Jeremy Fogel of the Northern District of California said there was insufficient evidence to establish a triable issue as to whether TASER, at the time it sold the device in December 2003 or when it was used on Rosa the following August, knew of the risk of metabolic acidosis. Research cited by the plaintiffs, he said, did not relate to the defendant’s products, was not publicly available, or was merely speculative, the judge said.
O’Scannlain, joined by Senior Judge Mary M. Schroeder and Judge Susan Graber, agreed. California law does not permit imposition of failure-to-warn liability under these facts, he said, either on a negligence or strict liability theory.
California, the judge explained, requires a warning as to a “particular risk” that 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.”
That standard is not so broad, he said, as to permit imposition of liability when the risk is “discoverable through modern technology” but unsubstantiated.
The plaintiff’s evidence, he explained, consisted of four peer-reviewed articles. But two of those articles, while dealing with metabolic acidosis, did not deal with the taser; one hypothesized that electronic control devices might contribute to the condition, but its authors did not test the hypothesis and acknowledged lacking adequate information to link any in-custody deaths to TASER’s products; and the fourth also failed to establish a causal link, and was not published until after Rosa’s death, O’Scannlain wrote.
The judge acknowledged that under California law, even when strict liability does not apply, the plaintiff may recover for negligence where the manufacturer fails to adequately test its product before distribution. But there was no evidence that TASER failed to exercise due care with regard to the risk of metabolic acidosis, he said.
Attorneys on appeal were John Burton of Pasadena and Peter M. Williamson of the Woodland Hills firm Williamson & Kraus for the plaintiffs, and John R. Maley of Indianapolis and Mildred K. O’Linn of Manning & Marder, Kass, Ellrod, Ramirez LLP in Los Angeles for the defendant.
The case is Rosa v. TASER International, Inc., 09-17792.
Copyright 2012, Metropolitan News Company