Taser lawsuit dismissal is upheld on appeal

9th Circuit Court says Taser International had no reason to advise in 2004 that repeated jolts from its stun guns could cause a condition that raises heart attack risk.

Maura Dolan, Los Angeles Times

July 11, 2012

A federal appeals court Tuesday upheld the dismissal of a lawsuit against the manufacturer of Tasers, ruling the company had no duty to warn that repeated jolts from the stun guns could trigger death.

A three-judge panel of the U.S. 9th Circuit Court of Appeals agreed unanimously that Arizona-based Taser International had no reason to advise police agencies in 2004 that the stun guns could cause metabolic acidosis, a condition in which lactic acid, produced during physical exertion, accumulates more quickly than the body can expel it. The condition raises the risk of a heart attack.

The parents of Michael Rosa, 38, who died in 2004 after police repeatedly shocked him with electricity from Tasers, sued the manufacturer on the grounds the company should have warned of the risk. The company maintains there is no evidence that Tasers cause acidosis but began warning about it anyway in 2009.

The suit stemmed from an incident in the Monterey County city of Del Rey Oaks. Someone called police to report that a "pretty disturbed" man was walking around and yelling. The first officer on the scene believed the man, Rosa, was "either really high or crazy" and called for backup, the court said. More officers arrived, and officers repeatedly fired Tasers at Rosa before wrangling him into handcuffs.

"At this point, Michael slumped, his lips blue, his breathing erratic," Judge Diarmuid F. O'Scannlain wrote for the court. "He quickly stopped breathing entirely."

Efforts to resuscitate Rosa failed, and he died shortly thereafter. High levels of methamphetamines were discovered in his blood, and his death eventually was linked to acidosis, the court said. But studies previous to the Rosa incident failed to substantiate that Tasers cause acidosis, the court said.

John Maley, an attorney for the company, said it has been sued several times on the grounds the weapon caused the condition. One case led to a jury award of about $200,000 against the company. Maley said he hoped Tuesday's ruling would end the litigation.

"The science even today doesn't establish that dangerous acidosis results from Taser application," Maley said. He said the company decided to issue warnings only to avoid potential liability.

Peter Williamson, one of Rosa's lawyers, disagreed, citing a 2005 study that he said showed Tasers can trigger the deadly condition. The Rosa suit was dismissed only because the death occurred before that study was published, Williamson said.

TASER International's 100th Lawsuit Dismissal Won on Summary Judgment

Comments received on this post as follows:

Notice the case was thrown out, "without prejudice", meaning that it can be re-filed in the future. And it was all "based on available evidence in 2003", a time when the company probably claimed it had no idea that their products could cause death.

The above comment is inaccurate. The case was dismissed with prejudice; summary judgment was granted; it cannot be refiled.

It is important to note that despite Taser's inference to the contrary, the Court said that the ruling was not inconsistent with any of the rulings in the prior Heston case where Taser lost. Specifically, here the Court did not rule against the Plaintiffs based on their theory of how Rosa died, but only as to the knowability of their theory at the time he died.

November 23, 2009
CNN

Landmark Ruling in U.S. District Court for the Northern District of California in the Ninth Circuit

SCOTTSDALE, Ariz., Nov. 23, 2009 (GLOBE NEWSWIRE) -- TASER International, Inc. (Nasdaq:TASR), a leading provider of technology solutions and the market leader in electronic control devices (ECDs), announced that on November 20, 2009, the United States District Court for the Northern District of California entered an order and judgment for TASER International in the arrest-related-death lawsuit entitled Rosa v. TASER International, et al. granting TASER International's motion for summary judgment. Plaintiffs were represented in the Rosa case by California attorneys: John C. Burton, Peter M. Williamson, John F. Baker, and Peter T. Cathcart. Plaintiffs filed their lawsuit in 2005, and aggressively litigated their case for 4 years. The medical examiner had determined cause of death was from the methamphetamine Mr. Rosa ingested.

The Court noted that "California courts require that plaintiffs present evidence of 'general recogni[tion] and prevailing best scientific and medical knowledge' to meet the 'known or knowable' element of a strict liability claim." In addition, the court noted that the "evidence is insufficient as a matter of law to raise a triable issue as to 'knowability' of the risk,... [and] insufficient to create a triable issue as to whether TASER should have known of the risk."

The Court also noted that "TASER has developed a comprehensive warning system in which every ECD sold or distributed is accompanied by a training CD/DVD and operating manual to be used by TASER-certified instructors," and that Defendant's expert Dr. Raymond Fish "unequivocally rejects the theory that ECDs on humans decrease respiration and cause dangerous acidosis."

In granting TASER's motion for summary judgment, the Court stated that TASER International's assertions "are well-taken" that there are no genuine issues of material fact with regard to whether, "the alleged propensity of ECDs to cause metabolic acidosis was known or knowable on December 30, 2003, when the ECDs in question were shipped from TASER to its distributor; [and]... TASER's warnings with respect to the dangers posed by application of its ECDs were adequate..."

"It is important to note that this case was brought by the same plaintiff's counsel, using fundamentally the same liability theory as the Heston case in 2008," and "it is ironic that this case is won in the same week as TASER filed its opening appellate brief in the 9th Circuit Court of Appeals in the Heston case," said Doug Klint, President and General Counsel of TASER International. "Studies published since the Heston trial have largely disproven the acidosis theory, demonstrating that the exertion effects associated with TASER(R) ECD discharges are lower than several other physical force tactics. We believe the findings from the court in this most recent case is an important landmark for both law enforcement and the Company. TASER International will continue to aggressively defend all litigation filed against the Company and will seek all recoverable costs from plaintiffs."

Settlement reached in man’s death from taser

January 22, 2009
SUNITA VIJAYAN • The Salinas Californian

Four years following a Del Rey Oaks man’s death after being shot by Taser stun guns, his family has settled a lawsuit against the city of Seaside and its police department.

Attorneys for the city and Michael Robert Rosa’s family confirmed Wednesday that the case was successfully mediated.

Peter M. Williamson, the Rosa family’s lawyer, said after about a year of talks, both parties settled the case Jan. 9 through a mediator in Southern California.

Details of the tentative settlement could not be disclosed, Williamson said, as the City Council has not approved it. He said the council is scheduled to approve the matter at its next meeting later this month.

Williamson, who’s representing the family along with co-counsel John Burton of Pasadena, said they will now focus on the case against the Arizona-based Taser International Inc., makers of the stun gun. He said a jury trial is set for July 17 before Judge Jeremy Fogel of the U.S District Court for the Northern District of California in San Jose.

The wrongful death suit was filed after two Seaside police officers, responding to the Aug. 29, 2004, call, repeatedly fired their Tasers at 38-year-old Rosa in Del Rey Oaks. Police have said Rosa was screaming and yelling and brandishing a 2-by-4 board when officers tased him. After he was hit, police said, Rosa experienced health problems. He was taken to the Community Hospital of the Monterey Peninsula, where he was pronounced dead.

According to the complaint filed by his family’s attorneys, Rosa did not pose a danger to anyone in his vicinity, though his behavior was erratic — possibly from the effects of methamphetamine. The complaint also alleges that officers bruised Rosa when they “compressed his chest on the ground” after shocking him with the Tasers. Four months after the incident, the Monterey County District Attorney’s Office ruled the Taser use was justified.

Williamson said the decision to settle with the city was not an easy one for the family, including Rosa’s mother, Evelyn Rosa, of Seaside.

“Until this thing is resolved, she is not able to put it behind her,” he said. “The family continues to grieve.”

Taser International could not be reached for comment Wednesday.

In June, Williamson and Burton, representing a Salinas family, won an unprecedented victory against Taser International. The two represented the family of Robert Heston, 40, who died 30 hours after being shot 25 times from five different stun guns in February 2005 outside his parent’s home on the 100 block of Rodeo Avenue.

In that case, jurors found Taser International 15 percent responsible in Heston’s death and Heston’s own actions, which included having levels of methamphetamine in his system, 85 percent responsible.

The city of Salinas and its officers were cleared from the case mainly because the jurors found the company failed to clearly convey the risks of prolonged deployment.

In October, however, the U.S. District Court for the Northern District of California threw out the $5.2 million punitive damages awarded in the case. It allowed that the company be responsible for $153,000 in net compensatory damages, stating that the previous amount was excessive. The court also denied a motion for a new trial.

Williamson said they are waiting for a ruling on attorney’s fees, which amounted to $1.6 million.

On Wednesday, some Salinas-area civil rights advocates and law enforcement agencies weighed in on the controversy the stun gun has created since it was first adopted for use in this county.

Since 2002, three men, including Heston and Rosa, have died from being tased by law enforcement officers.

Jaime Coronel, 27, of Watsonville, died in January 2006 after he was stunned by county sheriff’s deputies trying to subdue him on the rooftop of a home in Castroville. Like the two others, toxicology reports revealed a high level of illegal drugs in Coronel’s system.

“Before they started to use that, I felt that it was good — instead of using lethal weapons like guns,” said Crescencio Padilla, a founding member of the League of United Latin American Citizens’ Salinas chapter No. 2055. “The problem now is they use it so much. You can tase a guy to get him off balance, but to tase four or five times? That’s unnecessary.”

Soledad police Chief Richard Cox said the stun gun is just one of the many tools his officers have at their disposal, which includes verbal commands, physical contact and chemical agents. Cox said its usage is based on each officer’s judgment.

Federal court denies Taser International Inc's motion to dismiss wrongful death lawsuit

July 8, 2006
PRWeb

United States District Judge James Ware of the Northern District of California today denied Taser International INC's motion to dismiss claims arising from the February 20, 2005, death of a Monterey County, California, man following repeated shocks from one of its electric shock weapons.

San Jose, CA (PRWEB) July 8, 2006 -- United States District Judge James Ware of the Northern District of California today denied Taser International’s motion to dismiss claims arising from the February 20, 2005, death of a Monterey County, California, man following repeated shocks from one of its electric weapons.

On February 20, 2005, Robert Heston, Jr. began acting erratically inside his family’s Salinas, California home. His father, believing his son might be under the influence of drugs, called the police reporting his bizarre behavior. Officers from the Salinas Police Department responded to the Heston home and confronted Mr. Heston. Approximately 4-5 police officers used their Taser electric weapons repeatedly as other officers restrained Heston on the ground. Heston stopped breathing, and then died shortly thereafter.

In the lawsuit, Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW, Heston’s parents alleged that Taser electric shock weapons are unreasonably dangerous and defective for use on human beings because they are sold without warning about the effect of multiple shocks for extended durations, the danger of shocking people who are under the influence of drugs, and the effects of Taser shocks on respiration. The weapon, when used repeatedly and in combination with aggressive police restraints, causes unnecessary deaths.

Taser International, Inc., asked the district court to dismiss the claims of the Heston family, contending that (1) Robert Heston’s death was not reasonably foreseeable, (2) its product is not inherently dangerous, and (3) it had no duty to warn of the dangers of its product.

Judge Ware denied Taser International’s Motion to Dismiss without comment. Taser International has been ordered to respond to plaintiffs’ complaint. No trial date has been set in the case as yet.

Judge Ware’s ruling follows on the heals of a similar ruling by United States District Judge Jeremy Vogel on March 7, 2006 in the case of Rosa v. City of Seaside, N.D. Cal. Case No. C 05-03577 JF. That case, which is also being litigated by Messrs. Burton and Williamson, involves the death of Michael Rosa on August 29, 2004 after he had been repeatedly subjected to multiple uses of Taser electric weapons by police officers from several police agencies.

In denying Taser International’s Motion to Dismiss, Judge Fogel ruled that Taser has a duty to design and manufacture its products to avoid foreseeable dangers arising from their use, and to warn its customers and users of any foreseeable dangers that could arise when people such as Michael Rosa are shocked repeatedly and then subjected to aggressive restraint procedures. No trial date has been set in this case either.

Taser listed as contributing factor

Aug. 29, 2004

Michael Rosa, 38, Del Rey Oaks, California

Michael Rosa was wandering through yards and screaming. When police approached, he picked up a 2x4 piece of wood and swung it at officers. Police shocked him with a Taser. After being handcuffed. Rosa started having difficulty breathing. He was pronounced dead at the hospital. Rosa had a 2003 arrest for cocaine possession. The coroner said Rosa died of a heart attack from methamphetamine intoxication. But he listed Taser as a contributing factor in the death. The coroner says the Taser shock and the struggle with police combined with the drugs led to Rosa’s death.