Salinas et al v. City of San Jose et al

Filing 171

ORDER granting 114 Motion for Reconsideration; granting 43 Motion for Summary Judgment. The court understands this disposition to effectively resolve the action against Taser International. As a result, the trial of this action should occupy less time than previously anticipated. Accordingly, the court intends postpone jury selection from 6/17/2013 to 6/24/2013, at 9:00 a.m. The Final Pretrial Conference shall remain as scheduled for 6/11/2013 at 10:00 a.m. Further discussions regarding trial scheduling will occur at that conference. Signed by Judge Edward J. Davila on 6/5/2013. (ejdlc1, COURT STAFF) (Filed on 6/5/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
CASE NO. 5:09-cv-04410 EJD

NOREEN SALINAS, et. al.,

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ORDER GRANTING DEFENDANT’S
MOTION FOR RECONSIDERATION;
GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

Plaintiff(s),
For the Northern District of California

United States District Court

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v.
CITY OF SAN JOSE, et. al.,

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[ Docket Item No(s). 114]
Defendant(s).

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/

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Presently before the court is Taser International’s Inc.’s (“Taser International”) Motion for

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Reconsideration of an order issued by Judge Richard Seeborg denying its Motion for Summary

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Judgment. See Docket Item No. 114. Plaintiffs Noreen Salinas, Carlos Salinas, Ana Liva Salinas

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and Loretta Salinas (“Plaintiffs”) have filed written opposition to the motion. See Docket Item No.

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119.1

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The court has carefully reviewed the relevant pleadings. For the reasons explained below,

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the court has determined that the Motion for Reconsideration and the Motion for Summary

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Judgment, although previously denied, should now be granted.

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The other named defendants are the City of San Jose, Chief Robert Davis, Sgt. Jason
Woodall, Officer Roderick Smith, Officer Barry Chikayasu, and Sgt. Michael McLaren.
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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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I.

BACKGROUND

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A.

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The relevant factual background was previously provided by Judge Seeborg in his order

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For the Northern District of California

United States District Court

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Factual Background

addressing summary judgment:
In the early evening of May 25, 2007, San Jose Police received a
report of a disturbance involving a male and a female at the Vagabond
Inn, a motel located on North First Street in San Jose. Police were
advised that a woman had possibly fallen out of a window.
Defendants Sgt. Jason Woodall, Sgt. Michael McLaren, Officer Barry
Chikayasu, and Officer Roderick Smith responded to the scene. Sgt.
McLaren arrived first, and made contact with Herbert Howard, who
was standing outside the room where the disturbance had been
reported, and who was later determined to be the person who had
called the police. Sgt. McLaren heard yelling between a male and
female from within the room, which plaintiffs characterize as a “verbal
disturbance.” Sgt. McLaren was unable to discern what the occupants
were saying, and as plaintiffs argue, did not specifically hear any
threatening statements. Conversely, defendants point out, Sgt.
McLaren was not able to determine that the situation was benign.
Howard reported that he had been hearing moaning and groaning from
the room.
Sgt. McLaren observed broken window glass on the ground, but saw
no indication that anyone had fallen through the window. He knocked
on the room door, identifying himself as a police officer, and
demanded that the occupants open the door. There was no response,
but Sgt. McLaren heard a woman trying to calm a man down, and
continued groaning from the man.

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Officer Chikayasu arrived on the scene, and the officers discussed the
fact that Sgt. McLaren had heard arguing. Sgt. McLaren, who had
continued to knock on the door with no response, then slid open one of
the room windows by five or six inches. Officer Chikayasu pulled the
curtain aside and looked into the room, where he saw a female who he
instructed to open the door. The woman, later identified as Lenore
Salazar, said that everything was fine, but she opened the door.
Around this time, Sgt. Woodall and Officer Smith arrived. Through
the open door, the police officers saw Salinas for the first time. He
was naked, but did not appear injured in any way.
Officer Chikayasu and Sgt. McLaren pulled Salazar from the room.
She was handcuffed and seated by the curb. Although Salazar
appeared uninjured, Sgt. McLaren believed she was in potential
danger from Salinas, who was still yelling, and that she might be under
the influence of a drug, possibly PCP.
At this point, there are two versions of what transpired. Salazar
testified that when the officers entered the motel room, they instructed
Salinas to turn around and place his hands behind his back, and that he
immediately complied. Salinas was then handcuffed, and pulled to the

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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ground by the handcuffs. According to Salazar, at least four police
officers then proceeded to beat Salinas with batons and, “kept hitting
him and hitting him,” despite the fact that he was not struggling.
Salazar contends Salinas was tased after being handcuffed and beaten.

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The police officers describe a markedly different scenario. After
Salazar was removed from the room, they yelled various commands at
Salinas, who was unresponsive. Because Salinas was naked, grunting,
agitated, and enraged, and possibly under the influence of PCP, the
officers believed it was unsafe to approach him. At the direction of
Sgt. Woodall, Officer Chikayasu fired his Taser device at Salinas, in
“dart” mode. The police officers then rushed him, and attempted to
handcuff him. A fairly lengthy struggle ensued, and he was tased
several more times. Eventually Salinas was brought under control and
handcuffed. He was not tased after the officers gained control, and was
never beaten with batons. The testimony of Herbert Howard, who had
reported the disturbance, and that of the motel manager, who also
witnessed the events, both generally corroborate the police officers’
version of the incident.

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For the Northern District of California

United States District Court

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After Salinas was handcuffed, paramedics entered the room. Salinas
suffered cardiac arrest. CPR was unsuccessful, and he died at the
scene. An autopsy concluded that Salinas, “most likely did of a lethal
cardiac arrhythmia . . . due to a violent struggle . . . during PCP
intoxication, in the presence of significant natural heart disease.” The
autopsy did not reveal any bruising that the medical examiner believed
would be characteristic of baton strikes.

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The Taser device used against Salinas was a TASER Model X26 ECD,
purchased by and shipped to the San Jose Police Department in
August of 2006. It was packaged with a Training DVD and Operating
Manual, and a hard copy of Taser’s then current product warnings
dated June 8, 2006. The warnings in these documents repeatedly
cautioned that risk of injury and death is inherent in the circumstances
under which Taser devices are likely to be used, and included various
suggestions for minimizing those risks, including avoiding prolonged
or excessive discharges of the device against a subject. The warnings
did not state that use of a Taser device could in itself cause or
contribute to death, suggesting instead that the devices “have been
found to be a safer and more effective alternative when used as
directed [compared] to other traditional use of force tools and
techniques.”

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See Docket Item No. 62.
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B.

Relevant Procedural History

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1.

The Consolidated Complaint and Subsequent Motions

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On December 20, 2010, Judge Seeborg granted Plaintiffs’ request for leave to file a
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Consolidated Complaint, which was deemed filed that same day. See Docket Item Nos. 46; 40, at
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Ex. C. Plaintiffs asserted nine causes of action in that pleading: (1) violation of 42 U.S.C. § 1983
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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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against Chikayasu, Woodall, Smith, and McLaren, (2) municipal liability against the City, (3)

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supervisorial liability against Davis, (4) wrongful death in violation of California Code of Civil

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Procedure § 377.30 against all defendants, (5) survival action in violation of § 377.30 against all

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defendants, (6) wrongful death based on negligence against all defendants, (7) wrongful death based

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on battery against the City, Chikayasu, Woodall, Smith and McLaren, (8) conspiracy against

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unidentified Doe defendants, and (9) product liability against Taser International. Id.

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Most relevant to this analysis are the four causes of action asserted against Taser

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International. In support of their claim for wrongful death based on negligence, Plaintiffs alleged

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that Taser International “had a duty to Steve Salinas, the intended beneficiary and/or user of their
product, the Taser, to ensure that said product worked as warranted and to ensure that the SJPD

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For the Northern District of California

United States District Court

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officers were properly warned and trained regarding the use of the Taser and its lethal potential.” Id.

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at ¶ 73. Plaintiffs further alleged that Taser International “negligently failed to ensure that the Taser,

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warranted as a non-lethal weapon, does not cause death, negligently failed to warn SJPD of the

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Taser’s potential to cause death, and negligently failed to train SJPD officers that the Taser can

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potentially cause death.” Id. Plaintiff then identified Taser International’s negligent actions as “the

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failure to properly train SJPD officers that Tasers are capable of causing death” and “the failure to

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market the Taser as a lethal weapon that is capable of causing death.” Id. at ¶ 74(h), (I). The

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statutory violations for wrongful death and survival appear to be based on this same set of

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allegations inasmuch as they are asserted against Taser International.

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As to the cause of action for products liability, Plaintiffs alleged that Taser International

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“knew that the Taser was defective, particularly in that it was unsafe for persons with epilepsy and

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other physical conditions, and failed to adequately warn of such danger.” Id. at ¶ 92. Plaintiffs also

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alleged that Taser International “knew that the Taser was capable of causing serious injury and

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death, but failed to warn with respect to this risk,” “knew that repeated applications of the Taser

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could cause serious injury and death, but failed to warn with respect to the risk,” and “failed to warn

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of this danger and specifically marked their Taser by expressly warranting that the application of

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their Taser could not cause serious injury or death, when in fact they knew or should have known

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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that application of the Taser could cause serious injury and the death of an individual.” Id. at ¶¶ 95-

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97.

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All defendants moved for summary judgment. See Docket Item Nos. 43, 47. Taser

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International based its motion as to all of Plaintiffs’ claims2 on four arguments: (1) that it expressly

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and repeatedly warned of the potential risks associated with multiple and continuous ECD

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applications, (2) that the SJPD heeded these warnings and adopted an ECD use-of-force policy

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generally limiting such use to no more than 5-second cycles, (3) that Chikayasu was aware of this

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policy such that no additional or different warnings from Taser International would have changed

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his conduct during his interaction with Steve Salinas, and (4) that Plaintiffs had no medical evidence

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For the Northern District of California

United States District Court

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to establish general or specific causation.
On the issue of failure to warn, Taser International argued that the warnings it provided to

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the SJPD were adequate as a matter of law, and that such a determination would be “claim

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dispositive.” After identifying the specific warnings at issue in this case, Taser International noted

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that a district court in Arizona had previously found that the same warnings dated June 8, 2006, were

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adequate as a matter of law. That case, which is discussed more fully below, is Marquez v. City of

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Phoenix, No. CV-08-1132-PHX-NVW, 2010 U.S. Dist. LEXIS 88545, 2010 WL 3342000 (D. Ariz.

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Aug. 24, 2010). It moved for the same result in this case.

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Judge Seeborg denied Taser International’s Motion for Summary Judgment. See Docket
Item No. 62. As to the warnings, the court stated:

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Plaintiffs’ theory in this action, however, is that [Taser International’s]
products are not as safe and free from the potential of causing or
contributing to death as it would have law enforcement and the public
believe. . . . [T]hey believe that [Taser International] has created a
false sense of security that leads law enforcement to resort to using its
products under circumstances that do not call for immediate use of
force at all, or at least not force that carries any substantial risk of
causing death . . . . The warnings on which [Taser International] bases
this motion, however, are not directed to preventing or reducing the
risks that plaintiffs contend exist. . . . [T]he overall message is that
Taser devices are not responsible for such deaths, and that an officer’s
priority should be to exert control over subjects and place them as

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Having read Taser International’s motion, the court disagrees with Plaintiffs’ interpretation
that it did not move for summary judgment on all causes of action asserted against it.
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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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necessary in the care of medical professionals as quickly as possible.
As such, it cannot be concluded as a matter of law that [Taser
International] adequately warns against the particular risks plaintiffs
contend it products pose.

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Id.
For these same reasons, the court was unpersuaded by Marquez, noting that it was not

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“entirely clear from the [district court] opinion what the Marquez plaintiffs may have been

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contending the inadequacies of the warnings were.” Id.

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The case was transferred to the undersigned on June 6, 2011. See Docket Item No. 67.

reconsideration of Judge Seeborg’s summary judgment order and denied its subsequent motion to

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stay this case during the pendency of two appeals to the Ninth Circuit: one from the district court’s

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For the Northern District of California

Thereafter, this court denied Taser International’s initial motion for leave to file a motion for

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United States District Court

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order in Marquez and one from a summary judgment order issued in Rosa v. City of Seaside, 675 F.

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Supp. 2d 1006 (N.D. Cal. 2009). See Docket Item Nos. 69, 97.

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2.

The Appellate Opinions in Rosa and Marquez

On September 14, 2012, the court granted Taser International’s second motion for leave to

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file a motion for reconsideration since, by that time, the Ninth Circuit had filed its opinions in

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Marquez and Rosa.

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In Rosa, Michael Rosa (“Rosa”) was subjected to multiple applications of Taser devices

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while officers from the Seaside Police Department attempted to control and restrain him. Rosa, 675

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F. Supp. 2d at 1008-1009. Rosa died immediately after the encounter from ventricular arrythmia

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“due to methamphetamine intoxication” and, very likely, “the added stress and/or physiologic

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effects of TASER application and arrest by police.” Id. at 1009, 1010. His death was later linked to

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a condition known as “metabolic acidosis, a condition under which lactic acid - a byproduct of

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physical exertion - accumulates more quickly than the body can dispose of it, causing the pH in the

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body to decrease.” Rosa v. Taser Int’l, 684 F.3d 941, 945 (9th Cir. 2012). In ensuing litigation,

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Rosa’s survivors claimed that Taser International should have warned that repeated exposure to a

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Taser device “carried its own risks, particularly the risk that it can cause fatal levels of metabolic

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acidosis.” Id. Taser International moved for summary judgment on the claims for strict liability and

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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negligence based on failure to warn. Rosa, 675 F. Supp. 2d at 1012. The district court granted the

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motion, finding that it was neither “generally recognized” nor a “prevailing” opinion in the scientific

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community at the time of Rosa’s death in 2004 that Taser application could result in metabolic

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acidosis. Id. at 1014. Rosa’s survivors appealed from the order granting summary judgment.

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The Ninth Circuit affirmed. Rosa, 684 F.3d at 950. Applying California law, the court

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recognized that the survivors’ case against Taser International turned “on what was ‘knowable’ by a

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manufacturer of electronic control devices in December, 2003.” Id. at 946. The court then reasoned

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that the four scholarly articles relied on by Rosa’s survivors to demonstrate Taser International’s

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knowledge did not create a sufficient causal link between the application of Taser devices and
metabolic acidosis. Id. at 947-48. The court therefore concluded that Rosa’s survivors failed to

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For the Northern District of California

United States District Court

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“establish a triable issue of fact that the risk of metabolic acidosis was knowable at the time of

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distribution” of the Taser device to the Seaside Police Department. Id. at 948.

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In Marquez, Ronald Marquez (“Marquez”) died subsequent to an incident with Phoenix

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police officers, during which an officer deployed a Taser device on Marquez multiple times in an

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effort to restrain him. Marquez, 2010 U.S. Dist. LEXIS 88545, at *13-14. The medical examiner

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concluded that Marquez died from “excited delirium,” which resulted from “an overriding amount of

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dopamine in the brain.” Id. at *14. Marquez’s condition left him “at special risk for sudden death

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because of the cardiac effects of too much adrenaline.” Id. His survivors filed suit against Taser

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International based on a products liability theory for failure to warn. Specifically, the survivors

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alleged that Taser International’s warnings dated June 8, 2006, did not sufficiently warn of the risk

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of death or injury that could result from the use of Taser devices under the circumstances presented

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at the scene of the incident. Id. at *17. Taser International moved for summary judgment on that

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claim. The district court granted the motion, finding the warnings adequate as a matter of law. Id. at

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*22-23. Marquez’s survivors appealed from that decision.

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The Ninth Circuit affirmed the district court’s finding that Taser International’s warnings

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were adequate. Marquez v. Taser Int’l, 693 F.3d 1167, 1172-73 (9th Cir. 2012). The court found

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the warnings satisfied Arizona’s standard that they be “‘reasonably readable and apprise a consumer

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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exercising reasonable care under the circumstances of the existence and seriousness of the danger

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sufficient to enable the consumer to protect himself against it’” because Taser International warned

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its products should be used with care, warned against prolonged or continuous exposure, and warned

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of the potential for Sudden In-Custody Death Syndrome. Id. at 1173. The court reasoned that those

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warnings covered “precisely” what happened to Marquez. Id.

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The court also rejected the argument that Taser International should have provided a more

levels - may experience an increased risk of death when exposed to a Taser device. Id. The court

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held that “further detail could have detracted from officer’s ability to process the warning that was

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given.” Id. Moreover, the court found Marquez’s survivors had not demonstrated that a substantial

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For the Northern District of California

specific warning that certain populations - such as those, like Marquez, with elevated dopamine

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United States District Court

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number of people were affected by the alleged reaction and did not explain what additional warning

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language should have been provided. Id.

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II.

LEGAL STANDARD

The court has authorized reconsideration of an order denying summary judgment due to a

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change in law occurring subsequent to the ruling. See Civ. L.R. 7-9(b)(2). Accordingly, the court

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must examine the change in light of the standard which applies to motions for summary judgment.

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A motion for summary judgment should be granted if “there is no genuine dispute as to any

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material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a);

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Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the initial

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burden of informing the court of the basis for the motion and identifying the portions of the

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pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the

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absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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If the moving party meets this initial burden, the burden then shifts to the non-moving party

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to go beyond the pleadings and designate “specific facts showing that there is a genuine issue for

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trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The court must regard as true the opposing

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party’s evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324.

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However, the mere suggestion that facts are in controversy, as well as conclusory or speculative

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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testimony in affidavits and moving papers, is not sufficient to defeat summary judgment. See

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Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the non-moving

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party must come forward with admissible evidence to satisfy the burden. Fed. R. Civ. P. 56(c); see

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also Hal Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990).

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A genuine issue for trial exists if the non-moving party presents evidence from which a

material issue in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);

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Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991). Conversely, summary judgment must

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be granted where a party “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, on which that party will bear the burden of proof at trial.” Celotex, 477

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For the Northern District of California

reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the

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United States District Court

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U.S. at 322.
III.

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DISCUSSION

Taser International argues that the Ninth Circuit’s holdings in Rosa and Marquez foreclose

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the possibility of a triable issue on Plaintiffs’ claims based on inadequate warnings because (1) Taser

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International has no duty to warn of unsubstantiated and speculative risks, and (2) absent such a

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duty, the warnings at issue in this case have been found adequate as a matter of law. These

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arguments are addressed below.

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A.

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Under California law, manufacturers can be held strictly liable “for injuries caused by their

Unsubstantiated and Speculative Risk

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failure to warn of dangers that were known to the scientific community at the time they

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manufactured and distributed their product.” O’Neil v. Crane Co., 53 Cal. 4th 335, 351 (2012)

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(emphasis added). In that regard, “[a] manufacturer is held to the knowledge and skill of an expert

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in the field; it is obliged to keep abreast of any scientific discoveries and is presumed to know the

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results of all such advances.” Carlin v. Super. Ct., 13 Cal. 4th 1104, 1113 n.3 (1996). At the same

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time, however, liability for failure to warn is not designed to transform manufacturers into insurers

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for their products. See Brown v. Super. Ct., 44 Cal. 3d 1049, 1066 (1988). Thus, a manufacturer’s

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knowledge of potential harm “based on a single isolated report of a possible link” between the

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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product and the harm may not require a warning. Finn v. G.D. Searle & Co., 35 Cal. 3d 691, 701

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(1984). Moreover, as observed by the Ninth Circuit in Rosa, “a manufacturer is not under a duty to

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warn of ‘every report of a possible risk, no matter how speculative, conjectural, or tentative,’

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because ‘inundat[ing the public] indiscriminately with notice of any and every hint of danger’ would

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‘inevitably dilut[e] the force of any specific warnings.” Rosa, 684 F.3d at 946 (quoting Finn, 35

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Cal. 3d at 701) (emphasis preserved).

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Here, Plaintiffs’ failure to warn theory is this, as stated in the opposition to the instant

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motion: that the “statements made by Taser [International] in their operating manual, warnings and

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training with respect to any risk of serious injury or death are specifically not meant to warn that
Taser[ devices] cause death.” See Docket Item No. 119, at 16:12-15. But the warnings at issue here

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For the Northern District of California

United States District Court

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- those that were in effect as of August, 2006 - did account for potential death under circumstances

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requiring use of force or physical incapacitation which, without much doubt, encompass

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circumstances during which a Taser device can be deployed.3

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Plaintiffs nonetheless claim that these warnings inadequately identify a direct connection

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between the application of a Taser device and the potential for death due to the pain, physical stress

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and psychological stress which can result. On that issue, the court faced with a question similar to

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that presented to the Ninth Circuit in Rosa: Plaintiffs’ case against Taser International “turns on”

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whether it was knowable, in August, 2006, that use of its devices could result in those particular

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psychological mechanisms which could ultimately cause death. With regard to that question, Taser

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International argues that Plaintiffs do not have the medical evidence necessary to support their

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Taser International’s warnings dated June 8, 2006, stated:
Taser electronic control devices are weapons designed to incapacitate
a person from a safe distance while reducing the likelihood of serious
injuries or death. Though they have been found to be a safer and more
effective alternative when used as directed to other traditional use of
force tools and techniques, it is important to remember that the very
nature of use of force and physical incapacitation involves a degree of
risk that someone will get hurt or may even be killed due to physical
exertion, unforeseen circumstances and individual susceptibilities.

See Docket Item No. 43, at Ex. C (emphasis added).
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ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
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theory.
Plaintiffs rely on the opinion of Dr. Harry Bonnell. According to the declaration submitted

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in opposition to Taser International’s motion to exclude his testimony,4 Dr. Bonnell bases his

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opinion that “it is well-accepted that pain and stress can cause cardiac arrhythmias resulting in

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death” on “the conclusions reached by the coroner” who examined Salinas’ body, “all of the cases in

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the public realm in which the application of a Taser was a contributing factor in an individual’s

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death,” and “on the hundreds of articles in the public domain linking Taser ECD exposure to an

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increased risk of death.” See Decl. of Dr. Harry Bonnell, Docket Item No. 34, at ¶¶ 9-11. At the

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same time, Dr. Bonnell admits that “no medical or scientific study has ever found that a TASER
ECD application can directly result in cardiac arrhythmia in humans” because “there is no

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For the Northern District of California

United States District Court

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Institutional Review Board that would allow such testing to be done.” Id. at ¶ 12.

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This medical evidence suffers from critical shortcomings. Although Dr. Bonnell provides a

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list of items on which he bases his opinion, he provides no specifics - none of the “cases in the

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public realm” nor the “hundreds of articles in the public domain” are identified. That is not

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sufficient for Plaintiffs to overcome a motion for summary judgment. See Thornhill Publ’g Co., 594

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F.2d at 738 (holding that “conclusory and speculative affidavits that fail to set forth specific facts”

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do not meet the burden imposed on a party resisting summary judgment).

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Furthermore, Plaintiffs have not established that Dr. Bonnell’s opinion or any of the cases or

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articles he relies upon establish that Taser International knew, in August, 2006, that there existed a

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potential for death due to the pain, physical stress and psychological stress which can result from

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application of a Taser device. Rosa requires such a showing. See Rosa, 684 F.3d at 948. Dr.

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Bonnell’s opinion, on its own, is not enough even if it was one he held in 2006. See Finn, 35 Cal. 3d

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at 701. In addition, the fact that no studies exist to support Dr. Bonnell’s theory leaves it unlikely

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that his opinion can constitute the type of “generally recognized and prevailing best scientific and

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medical knowledge” necessary to trigger a warning. See Chavez v. Glock, Inc., 207 Cal. App. 4th

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The court has chosen to discuss this declaration because the declaration from Dr. Bonnell
submitted in opposition to Taser International’s summary judgment motion provides even less
information. See Docket Item No. 50.
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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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1283, 1304 (2012). Thus, in the absence of anything more, Plaintiffs have not shown that Taser

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International was under an obligation to warn about the particular risk alleged.
Accordingly, the court must conclude that Plaintiffs, like the survivors in Rosa, have failed to

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“present a triable issue of fact that the risk was more than purely speculative.” Rosa, 684 F.3d at

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947.

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B.

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The determination that Taser International was not under an obligation in August, 2006, to

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warn of potential death due to the physiological conditions alleged by Plaintiffs raises the issue of

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whether the warnings, as they were, “captured the circumstances of this case” such that the court

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For the Northern District of California

United States District Court

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Warnings Adequate as a Matter of Law

should find them sufficient as a matter of law in a manner similar to Marquez.
“Whether the absence of a warning makes a product defective depends on several factors,

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among them the normal expectations of the consumer as to how a product will perform, degrees of

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simplicity or complication in its operation or use, the nature and magnitude of the danger to which

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the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a

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warning.” Jackson v. Deft, Inc., 223 Cal. App. 3d 1305, 1320 (1990). Although the adequacy of a

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warning is normally a question of fact, “[o]ccasionally the evidence is such that the adequacy of a

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warning may be decided by the court as a matter of law.” Id. at 1320.

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This is one of those cases where the adequacy of a warning can be determined as a matter of

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law. Like the Marquez court did when applying Arizona law, the court finds that Taser

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International’s warnings meet the California standard as to the defects alleged. While Plaintiffs

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claim that Taser International failed to warn that use of a Taser device may be unsafe for persons

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with certain physical conditions, it is nonetheless clear that such a warning was provided. Indeed,

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the warnings dated June 8, 2006, state, in addition to the one addressing potential death, that

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“conditions such as excited delirium, severe exhaustion, drug intoxication or chronic drug abuse,

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and/or exertion from physical struggle may result in serious injury or death.” See Docket Item No.

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43, at Ex. 4. The warnings further state that “[i]n some circumstances in susceptible people, it is

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conceivable that the stress and exertion of extensive, repeated, prolonged, or continuous

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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application(s) of the Taser device may contribute to cumulative exhaustion, stress and associated

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medical risk(s).” Id. Moreover, entire sections of these warnings are dedicated to discussing

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“Sudden In-Custody Death Syndrome Awareness” and cautions officers to combine the use of a

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Taser device “with immediate physical restraint techniques and medical assistance” if the subject is

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exhibiting certain behaviors. Id.

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These warnings cover the circumstances presented by this case, where Salinas “most likely

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died of a lethal cardiac arrhythmia due to a violent physical struggle during Phencyclidine (PCP)

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intoxication in the presence of significant heart disease.” See Docket Item No. 52, at Ex. A. Thus,

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in the absence of a triable issue of fact, Taser International warnings are deemed sufficient as a
matter of law.

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For the Northern District of California

United States District Court

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C.

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Having reconsidered the order denying Taser International’s Motion for Summary Judgment

Conclusion

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in light of the Ninth Ciruit’s rulings in Rosa and Marquez, it is now apparent that summary

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judgment should be granted in favor of Taser International on all causes of action asserted against it,

15

including those based on negligence and express warranty. See Anderson v. Owens-Corning

16

Fiberglas Corp., 53 Cal. 3d 987, 1002 (1991) (explaining that, in a a failure to warn case based on

17

negligence “a plaintiff [must] prove that a manufacturer or distributor did not warn of a particular

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risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent

19

manufacturer would have known and warned about.”); see also Rosa, 684 F.3d at 949. Plaintiffs’

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attempt to differentiate these claims from the strict liability claim is unpersuasive.

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IV.

ORDER

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Based on the foregoing, Taser International’s Motion for Reconsideration (Docket Item No.

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114) is GRANTED. The Motion for Summary Judgment (Docket Item No. 43), previously denied,

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is also GRANTED.

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The court understands this disposition to effectively resolve the action against Taser

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International. As a result, the trial of this action should occupy less time than previously anticipated.

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Accordingly, the court intends postpone jury selection from June 17, 2013, to June 24, 2013, at

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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9:00 a.m. The Final Pretrial Conference shall remain as scheduled for June 11, 2013, at 10:00 a.m.

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Further discussions regarding trial scheduling will occur at that conference.

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IT IS SO ORDERED.

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Dated: June 5, 2013
EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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CASE NO. 5:09-cv-04410 EJD
ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT