Products Liability Law Alert: An Update On "State-of-the-Art" In California Products Liability Cases

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TASER International, Inc. ("TASER"), the maker of stun guns widely used by law enforcement, recently had a judgment in its favor upheld by the Ninth Circuit Court of Appeals in a products liability failure to warn suit. The case stemmed from the death of a suspect in police custody who was tasered several times by police officers on August 29, 2004.1 Plaintiffs, family members of the suspect, had argued that TASER was liable for failing to warn police that the application of TASER stun guns could contribute to acidosis, cardiac arrest and death, the official cause of death in the autopsy.

The trial court and Ninth Circuit both determined that the available scientific information as of August 2004 did not impose a duty on TASER to have known that its stun guns would contribute to fatal levels of acidosis. This was despite discussion in scientific literature as early as 1999 that stun gun use might induce acidosis and cardiac arrest; and the fact that TASER subsequently issued warnings for its stun guns that the product can cause changes in acidosis that may cause or contribute to death or serious injury.

The Ninth Circuit's opinion sheds more light on the level of scientific information required to trigger a duty to warn. It also offers a good example of how the decision to litigate in state or federal court can drastically impact the outcome of a case.

1. What Risks Are "Known Or Knowable" Such That a Manufacturer's Warning Is Required?

California law holds manufacturers to the knowledge and skill of an expert in the field. They are required to keep abreast of scientific discoveries and advances affecting their products. Manufacturers cannot avoid liability because they chose not to review relevant scientific literature and, as a result, did not provide warnings about potential harm.

But, as the Ninth Circuit observed, manufacturers are "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.'"2 Defendants in strict liability failure to warn cases may present evidence supporting the conjectural nature of a risk by offing evidence of the "state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution."3 To succeed on their claims, plaintiffs must present evidence of "'general recognition and prevailing best scientific and medical knowledge' to meet the 'known or knowable' element of a strict liability claim."4

TASER moved for summary judgment on the grounds that the risks of acidosis and death caused by the application of its stun guns were not known or scientifically knowable at the time of manufacture or distribution in 2003 -- or at the time of use in August 2004. In support, TASER offered scientific evidence as of August 2004 showing that the use of TASER's products shortened periods of suspects' physical aggression (through stunning), caused physiologic changes that mitigated acidotic conditions (e.g., increased respiration) and did not cause permanent injury.

Plaintiffs responded by offering two scientific publications pre-dating 2004, suggesting that the use of stun guns could contribute to acidosis and death. The first publication, dated 1999, was an internal Department of Justice ("DOJ") report surmising that the use of earlier stun guns "could cause acidosis which can lead to death." This DOJ article was not publically available until at least October 2004. The second publication from 2001 suggested that stun gun use in general may affect the acid-base balance in those already engaged in illicit drug use during periods of severe agitation plus prolonged physical aggression.

These publications – even taken together – could not overcome TASER's evidence that the risk of acidosis associated with the use of its stun guns was not known or knowable as of August 29, 2004.

Since the DOJ report was not publically available until late 2004, it was neither generally recognized nor prevailing scientific knowledge as of TASER's distribution in 2003. And neither the DOJ report nor the 2001 article studied TASER products. In fact, for the products these publications did analyze, the "link" between stun gun use and acidosis was merely an untested hypothesis. The writings only supposed that stun gun use on certain people at certain times might contribute to acidosis.

Neither of Plaintiffs' publications demonstrated that, even by August 2004, a known causal link was established between the use of TASER products and acidosis. At best, the publications amounted to knowledge of a potential side effect based on a single isolated report of a possible link between a product and an injury that would not require a warning. However, "reports of isolated or speculative injuries do not constitute generally accepted medical knowledge."5

Risks discussed only in scientific documents that are not publically available at the time of product manufacture or distribution may very well not be "known or knowable" risks that will subject a manufacturer to liability for strict liability failure to warn. Also, risks merely hypothesized in scientific publications that (a) incorporate small data sets, (b) fail to study the specific product at issue or (c) fail to establish a causal link between the product and the alleged risk of harm are likely not "known or knowable" risks in the context of strict liability failure to warn.

2. The Potential "Game Changing Effect" Of Litigating In Federal Court Versus California State Court

Plaintiffs next tried to offer evidence that TASER knew or should have known of the risk of acidosis by reference to a TASER "post-remedial measure," as TASER had issued a warning in 2009 that use of its stun guns can cause changes in acidosis that may contribute to death or serious injury.

Federal and state courts in California handle the admissibility of post-remedial measures in strict liability cases differently. In California state courts, plaintiffs may offer evidence of post-remedial measures, like changes to warnings after an injury, where appropriate to help show that a manufacturer's earlier warnings at the time of an injury were inadequate.6 In California federal courts (and throughout the Ninth Circuit), however, evidence of post-remedial measures is inadmissible in a products liability case.7

Assuming the post-remedial measures offered by Plaintiffs were otherwise relevant, the application of Federal Rule of Evidence 407 in this case excluded the evidence from consideration. Plaintiffs could offer no evidence that TASER knew or should have known prior to August 29, 2004 that its stun guns might contribute to acidosis.

3. Practical Points in Conclusion

Given the state of modern technology and scientific advancement, litigants may assume that most risks associated with products are at least knowable.

But this recent opinion brings to the fore just how important it is to consider exactly how specific the scientific evidence is supporting claims of injury from a specific product. The opinion also shows how the rules governing the admissibility of evidence should be considered early and closely with specific reference to the evidence in each case. The application of the rules of evidence might be the most important factor for consideration as a manufacturer thinks about whether to remove a case from state to federal court.

If you have any questions about the content of this alert, please contact Thomas Woods or your Stoel Rives attorney.

1Rosa v. TASER International, Inc. (9th Cir., July 10, 2012, No. 09-17792) ___F.3d ___ [12 C.D.O.S. 7822] (Rosa).

2 Rosa, supra, at 7951, quoting Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1115-1116.

3 Anderson v. Owens-Corning Fiberglas Corp.(1991) 53 Cal.3d 987, 1004 (Anderson). This argument, if true, can also defend against a negligent failure to warn claim as it did in Rosa, by establishing that a manufacturer was not unreasonable when it failed to warn about a potential risk of harm associated with its product. Rosa, supra, at 7957; Anderson, supra, at 1002-1003.

4 Rosa v. City of Seaside, et al. (N.D. Cal. 2009) 675 F.Supp.2d 1006, quoting Anderson, supra, 1002.

5 Rosa, supra, at 7952.

6 Ault v. International Harvester Co. (1974) 13 Cal.3d 113.

7 Fed. R. Evid. 407; Rosa, supra, at 7954-7955; Gauthier v. AMF, Inc. (9th Cir. 1986) 788 F.2d 634, 636.

Key Contributors

Thomas A. Woods
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