Salinas et al v. City of San Jose et al

Filing 97

ORDER denying 86 Motion to Stay. This case shall be reassigned to the Honorable Richard G. Kopf, who will be sitting as a visiting judge in this district, for trial and all further pretrial matters. The trial dates set by this court in 82 the s cheduling order shall remain as presently scheduled. However, all other pretrial deadlines, including the Final Pretrial Conference scheduled for 8/24/2012 are VACATED. The parties shall contact Judge Kopfs chambers ([phone]) to arrange for new pretrial deadlines consistent with the trial dates already set. Signed by Judge Edward J. Davila on 7/13/2012. (ejdlc1, COURT STAFF) (Filed on 7/13/2012)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

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

NOREEN SALINAS, et. al.,

11

ORDER DENYING DEFENDANT’S
MOTION TO STAY

Plaintiff(s),
For the Northern District of California

United States District Court

10

12
13

v.
CITY OF SAN JOSE, et. al.,
[Docket Item No(s). 86]

14
Defendant(s).
15
16

/
Presently before the court is Defendant Taser International, Inc.’s (“Taser”) Motion to Stay

17

this action during the pendency of two appeals to the Ninth Circuit in similar yet independent cases.

18

See Docket Item No. 86. The first appeal arises from the district court’s order granting summary

19

judgment in favor of Taser in Marquez v. City of Phoenix, No. CV-08-1132-PHX-NVW, 2010 U.S.

20

Dist. LEXIS 88545, 2010 WL 3342000 (D. Ariz. 2010) (“Marquez”). The second is taken from

21

another order granting summary judgment to Taser in Rosa v. City of Seaside, 675 F. Supp. 2d 1006

22

(N.D. Cal. 2009) (“Rosa”). Plaintiffs Noreen Salinas, Carlos Salinas, Ana Liva Salinas and Loretta

23

Salinas (collectively “Plaintiffs”) have filed written opposition to Taser’s abatement request. See

24

Docket Item No. 89. The remaining Defendants - City of San Jose, Chief Robert Davis, Sergeant

25

Jason Woodall, Officer Roderick Smith, Officer Barry Chikayasu (“Chikayasu”), and Sergeant

26

Michael McLaren (collectively, the “City Defendants”) - do not oppose the stay. See Decl. of

27

Pamela B. Petersen (“Petersen Decl.”), Docket Item No. 86, at ¶ 9.

28

The court has carefully reviewed the moving, opposing and reply papers and has considered
1
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY

1

the parties’ statements at the hearing on this motion. For the reasons explained below, Taser’s

2

Motion to Stay will be denied.

3
4

I. FACTUAL AND PROCEDURAL BACKGROUND
On May 25, 2007, officers from the San Jose Police Department (“SJPD”) arrived at the

5

scene of a reported disturbance at a motel on North First Street. Once there, they encountered

6

Steven Salinas (“Salinas”). One of the responding officers, Chikayasu, utilized a Taser Electronic

7

Control Device (“ECD”) against Salinas. Salinas ultimately died during the incident.

8
9

Plaintiffs, each of whom are Salinas’ surviving children, filed this consolidated action
against Taser and the City Defendants. As to Taser, Plaintiffs allege claims for wrongful death,
survival, negligence, conspiracy, and products liability. See Consolidated Compl., Docket Item No.

11
For the Northern District of California

United States District Court

10

41, at Ex. 4. In the simplest of terms, the claims against Taser rest on a theory that Taser allegedly

12

failed to warn that repeated applications of an ECD could cause serious injury or death, and that

13

Taser expressly warranted that application of the ECD would not cause serious injury or death.

14

On December 17, 2010, Taser filed a Motion for Summary Judgment within which it argued,

15

inter alia, that Taser expressly and repeatedly warned of the potential risks associated with multiple

16

and continuous ECD applications. See Docket Item No. 43. Taser based this argument on the

17

written warnings dated June 8, 2006, which it provided with the ECD utilized by Chikayasu.1 See

18

id. Judge Richard Seeborg denied Taser’s motion, and this court denied Taser’s subsequent Motion

19
20
21
22
23
24
25
26
27
28

1

According to Taser’s Motion for Summary Judgment, the warnings dated June 8, 2006,
stated the following:
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.
Taser also cited to the “Deployment Warnings” dated June 6, 2006, which directed users to
“control and restrain immediately,” avoid “prolonged and continuous exposure to the TASER
device’s electrical discharge,” and avoid “[e]xtended or repeated TASER device exposures.” See
Docket Item No. 43.
2
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY

1

for Leave to File a Motion for Reconsideration of that order. See Docket Item Nos. 62, 69. The

2

case was then set for trial to commence on September 24, 2012, with an associated pretrial

3

conference on August 24, 2012. See Docket Item No. 82. Taser filed the instant motion June 12,

4

2012.
II. LEGAL STANDARD

5
6

The district court’s “power to stay proceedings is incidental to the power inherent in every

for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Under this power,

9

one case may be stayed in favor of another. Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857,

10

863-64 (9th Cir. 1997) (“A trial court may, with propriety, find it is efficient for its own docket and

11
For the Northern District of California

court to control the disposition of the causes on its docket with economy of time and effort for itself,

8

United States District Court

7

the fairest course for the parties to enter a stay of an action before it, pending resolution of

12

independent proceedings which bear upon the case. This rule applies whether the separate

13

proceedings are judicial, administrative, or arbitral in character, and does not require that the issues

14

in such proceedings are necessarily controlling of the action before the court.”).

15

In order to determine whether a Landis stay should be implemented, various interests must

16

be considered: (1) “the possible damage which may result from the granting of a stay,” (2) “the

17

hardship or inequity which a party may suffer in being required to go forward,” and (3) “the orderly

18

course of justice measured in terms of the simplifying or complicating of issues, proof, and

19

questions of law which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265,

20

268 (9th Cir. 1962) (citing Landis, 299 U.S. at 254-55). Whether to grant a stay request is a matter

21

entrusted to the discretion of the district court. See Landis, 299 U.S. at 254 (“How this can best be

22

done calls for the exercise of judgment, which must weigh competing interests and maintain an even

23

balance.”).

24

When weighing the relevant interests, the court must be mindful that “if there is even a fair

25

possibility that the stay for which he prays will work damage to some one else,” the moving party

26

“must make out a clear case of hardship or inequity in being required to go forward.” Id. at 255.

27

Indeed, “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a

28

litigant in another settles the rule of law that will define the rights of both.” Id. Moreover, the
3
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY

1

moving party must cite to something more than the intrinsic inconvenience arising from involvement

2

in litigation. “[B]eing required to defend a suit, without more, does not constitute a ‘clear case of

3

hardship or inequity’ within the meaning of Landis.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1112

4

(9th Cir. 2005).
III.

5
6

DISCUSSION

Taser argues that a stay is appropriate pending release of the Ninth Circuit’s opinions in

7

Marquez and Rosa due to the similarities between those cases and this case. In essence, Taser

8

contends that a decision affirming the district court determinations in Marquez and Rosa will

9

dispose of Plaintiffs’ claims against Taser, thereby saving Taser the time and expense associated

11
For the Northern District of California

United States District Court

10

with trial preparation.
The court begins with a discussion of the two cases pivotal to this motion. In Marquez,

12

Ronald Marquez (“Marquez”) died subsequent to an incident with Phoenix police officers, during

13

which an officer deployed an ECD on Marquez. Marquez, 2010 U.S. Dist. LEXIS 88545, at *13-14.

14

His survivors filed suit against Taser based on a products liability theory for failure to warn.

15

Specifically, the survivors alleged that Taser’s warnings dated June 8, 2006, did not sufficiently

16

warn of the risk of death or injury that could result from the use of ECDs under the circumstances

17

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

18

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

19

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

20

In Rosa, Michael Rosa (“Rosa”) was subjected to multiple applications of ECDs while

21

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

22

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

23

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

24

TASER application and arrest by police.” Id. at 1009, 1010. Within the ensuing litigation brought

25

by Rosa’s survivors, Taser moved for summary judgment on the claims for strict liability and

26

negligence. Id. at 1012. In granting Taser’s motion as to both claims, the court found it was neither

27

“generally recognized” nor a “prevailing” opinion in the scientific community at the time of Rosa’s

28

death in 2004 that ECD use could result in metabolic acidosis. Id. at 1014. Rosa’s survivors
4
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY

1
2

appealed from the order granting summary judgment to Taser.
As Taser points out, Marquez and Rosa are factually similar to this case in some rather

3

obvious ways. All three cases involve the death of an individual after application of an ECD by

4

police. The plaintiffs in each case are comprised of the decedent’s survivors, and each brought tort

5

claims against Taser based on a theory of products liability for failure to warn. Specific to Marquez,

6

the warnings at issue there are the exact same warnings at issue in this case. These common

7

elements are undisputed, and could weigh in favor of a stay if the analysis were to end there.

8
9

But as stated above, the requisite inquiry requires more than merely looking to factual
overlap between cases, and the remaining relevant factors outweigh the similarities identified by
Taser. To begin, the court agrees with Plaintiffs that important differences exist between this case

11
For the Northern District of California

United States District Court

10

and the two cases before the Court of Appeals. In contrast to Marquez, the instant Plaintiffs rely on

12

more than just the written warnings provided to law enforcement with the ECD in order to establish

13

Taser’s liability. Here, Plaintiffs “specifically claim that TASER’s warnings and training are

14

inadequate to sufficiently warn law enforcement officers” that ECD application may result in death.

15

See Docket Item No. 89, at 4:8-9. Both Judge Seeborg and this court have identified Plaintiffs’

16

nuanced theory in previous orders, and it appears that this particular distinction led to the denial of

17

Taser’s summary judgment motion in this case.2 For this reason, the court cannot accept Taser’s

18
19
20
21
22
23
24
25
26
27
28

2

In denying Taser’s Motion for Summary Judgment, Judge Seeborg clarified:
Plaintiffs’ theory in this action, however, is that Taser’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 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 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 necessary in the care of
medical professionals as quickly as possible. As such, it cannot be
concluded as a matter of law that Taser adequately warns against the
particular risks plaintiffs contend it products pose.

See Docket Item No. 62, at 12-13.
5
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY

1

contention that Marquez is, in fact, indistinguishable from this case such that an appellate decision

2

favorable to Taser in Marquez would be dispositive. The effect of that decision on this case is more

3

properly the subject of another motion, even if the Ninth Circuit’s decision in Marquez is precedent

4

that this court must observe.

5

With regard to Rosa, the court now has the benefit of the Ninth Circuit’s opinion affirming

Rosa’s survivors had not established, through the presentation of medical and scientific literature, a

8

triable issue of fact that the risk of metabolic acidosis was knowable when the ECD was shipped to

9

the Seaside Police Department in 2003 or applied to Rosa in 2004. Rosa v. TASER Int’l, Inc., No.

10

09-17792, 2012 U.S. App. LEXIS 14025, at *14, 2012 WL 2775006 (9th Cir. July 10, 2012). But

11
For the Northern District of California

the district court’s decision to grant summary judgment to Taser. There, the appellate court held that

7

United States District Court

6

the present case involves an ECD shipped to the San Jose Police Department three years later - in

12

August, 2006. See Docket Item No. 43, at 24-25. Surely, the relevant literature has progressed in

13

that intervening time period such that new and different studies are cited by Plaintiffs here. Thus,

14

Rosa’s application and effect on the issues before the this court is not readily apparent at this time.3

15
16

Furthermore, Taser has not established any “hardship or inequity” that would result in going

17

forward outside of the time expense that may result from trial preparations. That is not enough,

18

particularly when this case, taken together with its consolidated companion, have been pending since

19

2008. See Lockyer, 398 F.3d at 1112. Moreover, in light of the fact that the Ninth Circuit heard

20

oral argument on Rosa and Marquez on the same date, it is not unreasonable to expect an opinion in

21

Marquez in the very near future. This timing will allow Taser nearly two months to take whatever

22

action it deems appropriate in response. For these reasons, the prejudice to Plaintiffs in postponing

23

the trial outweighs the inconvenience to Taser at this point. This is not one of the “rare

24

circumstances” requiring abatement. See Landis, 299 U.S. at 254.

25

Taser’s motion to stay will therefore be denied, and the current trial dates will remain

26
27
28

3

Building on this conclusion, telling is the fact that Taser neither presented meaningful
argument analogizing Rosa to the instant case in its papers, nor did Taser articulate at oral argument
the specific reasons why the Ninth Circuit’s opinion mandates a stay despite having reviewed the
appellate result.
6
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY

1

undisturbed. However, as the court indicated at the hearing, this case will be assigned to another

2

judge for trial as well as any further pretrial matters. This court must vacate all current deadlines

3

associated with the trial in order to accommodate the reassignment, which may provide Taser some

4

relief as a result.

5

IV.

ORDER

6

Based on the foregoing, Taser’s Motion to Stay (Docket Item No. 86) is DENIED.

7

This case shall be reassigned to the Honorable Richard G. Kopf, who will be sitting as a

in the scheduling order issued October 28, 2011 (see Docket Item No. 82) shall remain as presently

10

scheduled. However, all other pretrial deadlines, including the Final Pretrial Conference scheduled

11
For the Northern District of California

visiting judge in this district, for trial and all further pretrial matters. The trial dates set by this court

9

United States District Court

8

for August 24, 2012, are VACATED. The parties shall contact Judge Kopf’s chambers ((402) 437-

12

1640) to arrange for new pretrial deadlines consistent with the trial dates already set.

13

IT IS SO ORDERED.

14
15

Dated: July 13, 2012
EDWARD J. DAVILA
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
7
CASE NO. 5:09-cv-04410 EJD
ORDER DENYING DEFENDANT’S MOTION TO STAY