Hollman et al v. Taser International Incorporated

Filing 128

ORDER granting 105 Motion for Summary Judgment; finding as moot 116 Motion to Strike: For the reasons set forth herein, defendant TASER's motion for summary judgment is granted in its entirety. The Court denies as moot defendant's mot ion to strike because, having considered all of plaintiff's evidence (including the declaration and exhibits that defendant seeks to exclude), the Court grants defendant's motion for summary judgment. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/8/2013. (Pilmar, Philip)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 06-cv-3588 (JFB) (ARL)
_____________________

MARY HOLLMAN, AND THE ESTATE OF SAMUEL A. COX,
Plaintiffs,
VERSUS

TASER INTERNATIONAL INCORPORATED,
Defendant.
___________________
MEMORANDUM AND ORDER
March 8, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Mary Hollman, as the
Administrator of the Estate of Samuel A.
Cox, and the Estate of Samuel A. Cox
(collectively, “plaintiff”) brings this action
against TASER International Incorporated
(“TASER” or “defendant”), alleging that an
Electronic Control Device (“ECD”)
manufactured by TASER was a contributing
factor in the death of Samuel A. Cox
(“Cox”). Specifically, plaintiff alleges that
TASER was either strictly liable or
negligent for failing to warn police officers
that repeated applications of an ECD can
result in fatal metabolic acidosis. Plaintiff
also brings causes of action for wrongful
death and breach of warranty.
On October 17, 2011, defendant filed
motions to exclude the expert testimony of
Dr. Michael Morse (“Morse”), Edward
Mamet (“Mamet”), and Dr. William Manion
(“Manion”) as being inadmissible under

Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). On February 1,
2012, the Court orally denied defendant’s
motions in limine, and indicated that a
written opinion would be forthcoming. This
is that written opinion.
TASER now moves for summary
judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Defendant also
moves to strike the declaration of Manion,
as well as certain exhibits that plaintiff
submitted in support of her opposition to
defendant’s motion for summary judgment.
For the reasons set forth below, the Court
grants defendant’s motion for summary
judgment. Specifically, summary judgment
must be granted on plaintiff’s failure to warn
claims because plaintiff has not submitted
any evidence that defendant knew or should
have known, at the time of Cox’s death in
April 2005, that ECD application in drivestun mode could cause metabolic acidosis.

Without such evidence, no rational jury
could conclude that defendant should have
warned ECD users of the risk of metabolic
acidosis. The Court also grants summary
judgment on plaintiff’s breach of warranty
claims because plaintiff has not brought
forth any evidence that the ECDs at issue
contained defects in workmanship or
materials that would constitute a breach of
the limited express warranty; moreover,
defendant properly disclaimed all implied
warranties. Accordingly, defendant’s motion
for summary judgment is granted, and all of
plaintiff’s claims are dismissed.1,2

Unless otherwise noted, where a party’s 56.1
Statement is cited, that fact is undisputed or
the opposing party has pointed to no
evidence in the record to contradict it.4,5
The TASER X26 ECD (“X26”) is a
weapon used by police officers to subdue
individuals. The X26 may be used in either
probe deployment mode or drive-stun mode.
(Decl. of Patrick Smith (“Smith Decl.”) ¶ 8.)
In probe deployment mode, “two small
metal darts” are fired from the ECD into the
target “via compressed nitrogen with
electrical impulse transmitted into the target
through very thin insulated trailing wires.”
(Id.) In this mode, the ECD is “designed to
transmit stimuli through very short duration
low charge electrical pulses that interfere
with the command and control systems of
the body at the motor-neuron level to
temporarily incapacitate the target.” (Id.
¶ 9.) The electrical pulse is intended to
result in Neuro-Muscular Incapacitation
(“NMI”). (Id.) The darts must be adequately
spread out on the target to “ensure major
muscle groups between the darts are affected
by the charge.” (Id. ¶ 10.) In drive-stun
mode, “electrical impulses are transmitted
superficially through two fixed electrodes on
the ECD,” which are then applied directly to
the target. (Id. ¶ 11; see also id. ¶ 17.)
TASER claims that use of the X26 in drivestun mode is “strictly [for] pain compliance”
and does not result in NMI. (Id. ¶ 11.) On

I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, and exhibits, and from the parties’
respective Rule 56.1 Statements of Facts.3
Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of N.Y., 422 F.3d 47, 50-51 (2d Cir. 2005).
1

As discussed below, having considered all of
plaintiff’s evidence (including the declaration and
exhibits that defendant seeks to exclude), the Court
grants defendant’s motion for summary judgment.
Thus, the Court denies defendant’s motion to strike
as moot.
2
Plaintiff also claims that punitive damages are
warranted in this case. Because the Court finds that
summary judgment should be granted in defendant’s
favor and that all of plaintiff’s other claims should be
dismissed, plaintiff’s cause of action for punitive
damages must also be dismissed. See Weinstein v.
Natalie Weinstein Design Assocs., Inc., 86 A.D.3d
641, 644 (2d Dep’t 2011) (holding that a cause of
action seeking punitive damages “was properly
dismissed in light of the dismissal of all causes of
action asserted against [defendant]”).
3
Any citations to “Pl.’s 56.1” in this Memorandum
and Order are a citation to “Plaintiff’s Statement of
Disputed Facts” and not Plaintiff’s “Counter
Statement of Facts.”

4

In addition, where the parties’ Rule 56.1 Statements
contain specific citations to the record to support
their statements, the Court has cited to the Rule 56.1
Statements, rather than the underlying citation to the
record.
5
Plaintiff disputes many of the facts that defendant
claims are undisputed, but then fails to cite to any
evidence in the record to support her assertion, or
instead, cites to evidence that does not actually
contradict defendant’s contentions. Where the Court
has cited defendant’s 56.1 Statement for a fact that is
disputed, the Court has verified in the record that
plaintiff has introduced no admissible evidence to
contradict that fact.

2

buttocks, and the back of his legs.” (Id. at
16.) Lixfield stated that the weapon
appeared to have no effect on Cox. (Id. at
44.) Because Lixfield believed the ECD was
not working, he tested it by pointing the
device up in the air and firing. (Id. at 140.)
Lixfield testified that he tested the ECD in
that manner approximately four or five
times. (Id. at 138-39.)

August 5, 2004, the Suffolk County Police
Department (“SCPD”) purchased forty-five
X26 ECDs from TASER. (Smith Decl. Ex.
A.)
On April 22, 2005, SCPD Sergeant
Kevin Lixfield (“Lixfield”) received a call
from another officer informing him that an
ECD might be needed to arrest an individual
inside a home in Bellport, New York.
(Def.’s 56.1 ¶ 8.) According to Lixfield’s
incident report and deposition, a large group
of people standing outside the home
indicated to Lixfield as he arrived that
someone was “busting up the house.” (Decl.
of John Tait (“Tait Decl.”) Ex. 1, Dep. of
Kevin Lixfield (“Lixfield Dep.”) at 14.)
When Lixfield entered the house, he
observed five or six officers surrounding
Cox, who was “bare chested, screaming,
threatening and moving in a highly agitated
state.” (Id. at 14-15.) Lixfield warned Cox
that he would use an ECD on him. (Id. at
15.) Cox lunged at Lixfield, and Lixfield
fired the ECD at Cox in probe deployment
mode. (Id.) Although the darts struck Cox in
the chest, the ECD “had no apparent [e]ffect
on him and he pulled both darts from his
chest and continued to come at [Lixfield].”
(Id.) Although the parties dispute how long
the probes remained in Cox’s chest, one of
plaintiff’s experts stated that they were
“probably” removed “pretty quick” and he
guessed that Cox removed the darts within
“a few seconds.” (Tait Decl. Ex. 10, Dep. of
William Manion (“Manion Dep.”) at 157.)
Lixfield attempted to reload new darts into
the ECD, but he accidentally discharged the
darts into his hand. (Lixfield Dep. at 15.)

Although the officers were eventually
able to handcuff Cox with his hands in front
of him, Cox continued to resist. (Id. at 40.)
As the officers attempted to carry him to a
stretcher across the room, Cox kicked and
attempted to stop the officers. (Tait Decl.
Ex. 3, Dep. of David Doherty (“Doherty
Dep.”) at 32.) While attempting to secure
Cox to the stretcher, Lixfield used the ECD
in drive-stun mode on Cox’s shoulder, while
SCPD Sergeant David Doherty (“Doherty”)
used an X26 on Cox’s lower back. (Def.’s
56.1 ¶ 21.)6 The officers were able to place
Cox into an ambulance and he was
transported to Brookhaven Hospital. (Id. ¶
24.) Once Cox was placed into the
ambulance, the officers did not use the ECD
on him again. (Id. ¶ 25.)
The X26 has data download capabilities
that record the date, time, and duration of
each trigger pull. (Id. ¶ 6.) The data does not
record whether the device made contact with
the target. (Id.) The data for Lixfield’s X26
demonstrates that the trigger was pulled ten
times during a 17-minute 40-second time
span. (Tait Decl. Ex. 2, Data Download
Report for Sgt. Lixfield’s X26 ECD.) The
first nine pulls occurred within a 2-minute

According to Lixfield, Cox and the
officers then engaged in a “free-for-all” for
approximately five minutes. (Id. at 37.) Cox
punched and kicked the officers as they tried
to arrest him. (Id.) During the scuffle,
Lixfield used the ECD in drive-stun mode
against Cox by placing it on Cox’s “back,

6

Plaintiff claims that Cox was actually secured to the
stretcher when the ECDs were used, but then cites to
material in the record which does not actually support
her assertion. (See Pl.’s 56.1 ¶ 21.) In any event, even
assuming arguendo that plaintiff was secured to the
stretcher during some of the ECD applications, this
would not affect the Court’s analysis because this
fact is not relevant to the claims against TASER.

3

and 43-second span, and the final pull
occurred nearly 15 minutes after the ninth
pull.7 (Id.) The data from Doherty’s device
demonstrates that his ECD was only fired
once. (Id. Ex. 4, Data Download Report for
Sgt. Doherty’s X26 ECD.) The X26 does
not record whether the device was used in
probe deployment mode or drive-stun mode.
(See id. Exs. 2, 4.) Defendant states that all
applications of the ECDs to Cox were in
drive-stun mode except for Lixfield’s first
trigger pull in probe deployment mode.
(Def.’s 56.1 ¶ 12.) Plaintiff appears to
dispute this fact, but provides the Court with
no evidence demonstrating that more than
one of the ECD applications against Cox
was in probe deployment mode. (See Pl.’s
56.1 ¶ 12.)

down so he could not kick anyone. (Decl. of
Frederick K. Brewington, May 31, 2012
(“Brewington May 31 Decl.”) Ex. D, Dep.
of Sean Neknez at 226-29.) Shortly after
Cox was brought into the trauma room at the
hospital, a nurse realized that Cox was not
breathing. (Brewington May 31 Decl. Ex. V,
Dep. of Carol Burke at 28.) The hospital
staff initiated CPR, but resuscitation efforts
were not successful and Cox was
pronounced dead. (Def.’s 56.1 ¶ 28.)
Suffolk County Deputy Medical
Examiner Dr. Gwen Harleman (“Dr.
Harleman”) performed an autopsy on Cox.
(Id. ¶ 29.) Dr. Harleman observed five sites
of TASER ECD marks on Cox’s body. (Id.
¶ 33.) Dr. Harleman concluded that the
cause of Cox’s death was “excited delirium
syndrome” and that contributory factors
were
“cocaine
intoxication,”
“arteriosclerotic and hypertensive type
cardiovascular disease,” and “chronic
psychotic disorder.” (Tait Decl. Ex. 8,
Report of Autopsy at 1.) After reviewing
this autopsy, as well as an autopsy
performed by plaintiff’s former expert that
has subsequently been withdrawn, other
evidence in the record, and studies that have
been released since Cox’s death regarding
the risks posed by ECDs, plaintiff’s expert
Manion concluded:

There is conflicting evidence regarding
Cox’s physical state during the ambulance
ride to the hospital. Lindsey Smith, an EMT
who was in the ambulance with Cox, said
that Cox was “still flailing, yelling and
screaming” while en route to the hospital.
(Tait Decl. Ex. 5, Statement of Lindsey
Smith at 4.) However, SCPD Officer Sean
Neknez, who was also in the ambulance,
said that Cox did not speak or cry out, and
although Cox tried to move his left leg in a
backwards kicking motion, Neknez held it
7

Plaintiff correctly points out that the data concerning
the first trigger pull on Lixfield’s device is not
consistent with Lixfield’s testimony: the device
recorded that the first trigger pull lasted fourteen
seconds, while Lixfield testified that Cox quickly
ripped out the darts and Lixfield reloaded his ECD
immediately before accidentally firing the second set
of darts into his own hand. The Court also notes that
the data shows that the second trigger pull occurred
only six seconds after the first pull, indicating that the
second pull occurred while the first pull was still
continuing. This leads to the conclusion that the data
concerning the length of the first pull may have been
recorded inaccurately. However, this inconsistency
has no relevance to plaintiff’s claims against TASER.

It is my opinion with a reasonable
degree of medical certainty that the
manner of death of John Cox was
irreversible
metabolic
acidosis
caused by an extremely combative
altercation with police officers
causing a great deal of physical
stress along with pain caused by
multiple applications of the TASER
in both probe and stun mode which
increased the pain and stress level
and muscle contraction on Mr. Cox,
along with positional asphyxia
caused by the police officers on Mr.
4

Cox’s back while in a prone position;
that all were all contributing and
substantial factors in causing his
death.

motion for summary judgment. Plaintiff
filed her opposition on May 31, 2012, and
defendant replied on June 21, 2012.
Defendant also filed, on June 21, 2012, a
motion to strike the declaration of Manion
and certain exhibits that plaintiff filed in
connection with the opposition to summary
judgment. Plaintiff filed her opposition to
the motion to strike on July 16, 2012, and
defendant replied on July 23, 2012. On July
24, 2012, defendant filed a supplemental
reply in support of its motion for summary
judgment to respond to plaintiff’s arguments
regarding the summary judgment motion
contained in plaintiff’s opposition to the
motion to strike. The Court held oral
argument on August 3, 2012. At oral
argument, the Court requested additional
information from plaintiff in support of her
opposition to summary judgment, and on
August 13, 2012, plaintiff submitted a letter
containing that information. On August 23,
2012, defendant replied to plaintiff’s
submission. The Court has fully considered
the submissions of the parties.

(Brewington May 31 Decl. Ex. JJJ, Decl. of
William L. Manion, M.D. (“Manion Decl.”)
¶ 27; see also Tait Decl. Ex. 9, Export
Report and CV of William Manion
(“Manion Report”) at 6 (stating that Cox
was “already in a life threatening situation”
prior to the ECD applications and that the
“multiple forceful restraint methods and
weapons of the police officers including
their Tasers were significant contributing
factors to and hastened Mr. Cox’s death”);
Manion Report at 5 (“As a result of these
[TASER] shocks an acute metabolic
acidosis resulted because of the extreme
muscle exhaustion.”).)8
B. Procedural Background
Plaintiff filed the complaint in this action
on July 21, 2006. Defendant answered the
complaint on August 22, 2006. On April 30,
2009, defendant originally moved for
summary judgment, but the motion was
terminated on consent without prejudice to
allow for the conclusion of discovery. On
October 17, 2011, defendant filed motions in
limine to exclude the opinions of Morse,
Mamet, and Manion. On December 1, 2011,
plaintiff filed her opposition to those
motions, and defendant replied on December
15, 2011. On January 27, 2012, the Court
held oral argument on the motions in limine.
On February 1, 2012, the Court ruled orally
that defendant’s motions were denied, and
that a written opinion would be forthcoming.
On April 16, 2012, defendant filed a new

II. STANDARD OF REVIEW
A. Summary Judgment
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits

8

Although in the fact section of her opposition
papers plaintiff references the Report of Dr. Lone
Thanning that she previously withdrew, the Court
need not consider that withdrawn report because
plaintiff is no longer relying upon it in connection
with her claims.

5

Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to
assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

B. Admissibility of Expert Testimony
In deciding whether a motion for
summary judgment should be granted, a
district court may only consider admissible
evidence. See Nora Beverages, Inc., v.
Perrier Grp. of Am., Inc., 164 F.3d 736, 746
(2d Cir. 1998) (“On a summary judgment
motion, “[a] district court properly considers
only evidence that would be admissible at
trial.” (citation omitted)). Thus, as the
Second Circuit has explained, it is the proper
role of the district court to consider the
admissibility of expert testimony in
determining whether summary judgment is
warranted:

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment.
Id. at 247-48. Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Group, Inc. v. Horn &

Because the purpose of summary
judgment is to weed out cases in
which ‘there is no genuine issue as to
any material fact and . . . the moving
party is entitled to a judgment as a
matter of law,’ Fed. R. Civ. P. 56(c),
it is appropriate for district courts to
decide questions regarding the
admissibility of evidence on
summary
judgment.
Although
disputes as to the validity of the
underlying data go to the weight of
the evidence, and are for the factfinder to resolve, questions of
admissibility are properly resolved
by the court. The resolution of
evidentiary questions on summary

6

Fed. R. Evid. 702. The proponent of the
expert testimony bears the burden of
establishing the admissibility of such
testimony under the Daubert framework by
a preponderance of the evidence standard.
See Daubert, 509 U.S. at 592 n.10 (“These
matters should be established by a
preponderance of proof.” (citing Bourjaily v.
United States, 483 U.S. 171, 175-76
(1987))); see also Barrett v. Rhodia, Inc.,
606 F.3d 975, 980 (8th Cir. 2010) (“[T]he
party offering the expert testimony must
show by a preponderance of the evidence
both that the expert is qualified to render the
opinion and that the methodology
underlying his conclusions is scientifically
valid.” (internal citations and quotation
marks omitted)); accord Baker v. Urban
Outfitters, Inc., 254 F. Supp. 2d 346, 353
(S.D.N.Y. 2003); Fed. R. Evid. 702 advisory
committee’s note (“[T]he admissibility of all
expert testimony is governed by the
principles of Rule 104(a). Under that Rule,
the proponent has the burden of establishing
that the pertinent admissibility requirements
are met by a preponderance of the
evidence.”).

judgment conserves the resources of
the parties, the court, and the jury.
Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d
Cir. 1997) (alteration in original and internal
citations omitted). In other words, “[t]he
court performs the same role at the summary
judgment phase as at trial; an expert’s report
is not a talisman against summary
judgment.” Id. at 66. Thus, if the expert
testimony is excluded as inadmissible under
the Rule 702 framework articulated in
Daubert and its progeny, the summary
judgment determination is made by the
district court on a record that does not
contain that evidence. Id. at 66-67. Such an
analysis must be conducted even if
precluding the expert testimony would be
outcome determinative. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 142-43 (1997).
Accordingly, pursuant to Rule 104 of the
Federal Rules of Evidence, the court must
examine the admissibility of plaintiff's
expert testimony in ruling on defendant’s
motion for summary judgment.
The admissibility of expert testimony is
analyzed under Rule 702 of the Federal
Rules of Evidence, which provides:

“The district court is the ultimate
‘gatekeeper,’” United States v. Williams,
506 F.3d 151, 160 (2d Cir. 2007), and must
ensure that “any and all scientific testimony
or evidence admitted is not only relevant,
but reliable,” Daubert, 509 U.S. at 589; see
also Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999) (holding that whether
the witness’ area of expertise is technical,
scientific, or more generally “experiencebased,” the district court, in its
“gatekeeping” function, must “make certain
that an expert, whether basing testimony
upon professional studies or personal
experience, employs in the courtroom the
same level of intellectual rigor that
characterizes the practice of an expert in the
relevant field”); Nimely v. City of N.Y., 414
F.3d 381, 396 (2d Cir. 2005) (“The shift

A witness who is qualified as an
expert
by
knowledge,
skill,
experience, training, or education
may testify in the form of an opinion
or otherwise if: (a) the expert's
scientific, technical, or other
specialized knowledge will help the
trier of fact to understand the
evidence or to determine a fact in
issue; (b) the testimony is based on
sufficient facts or data; (c) the
testimony is the product of reliable
principles and methods; and (d) the
expert has reliably applied the
principles and methods to the facts of
the case.

7

expert will be proffering opinions on issues
or subject matters that are within his or her
area of expertise. See Stagl v. Delta Air
Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997).

under the Federal Rules to a more
permissive approach to expert testimony []
did not represent an abdication of the
screening function traditionally played by
trial judges.”).

With respect to reliability, “the district
court should consider the indicia of
reliability identified in Rule 702, namely, (1)
that the testimony is grounded on sufficient
facts or data; (2) that the testimony is the
product of reliable principles and methods;
and (3) that the witness has applied the
principles and methods reliably to the facts
of the case.” Williams, 506 F.3d at 160
(internal citation and quotation marks
omitted). As the Second Circuit has
explained, the Daubert Court “has identified
a number of factors bearing on reliability
that district courts may consider, such as (1)
whether a theory or technique can be (and
has been) tested; (2) whether the theory or
technique has been subjected to peer review
and publication; (3) a technique’s known or
potential rate of error, and the existence and
maintenance of standards controlling the
technique's operation; and (4) whether a
particular technique or theory has gained
general acceptance in the relevant scientific
community.” Amorgianos v. Nat’l R.R.
Passenger Corp., 303 F.3d 256, 266 (2d Cir.
2002) (internal citations and quotation
marks omitted); accord Nimely, 414 F.3d at
396. These criteria are designed to be
instructive, but do not constitute a definitive
test in every case. See Kumho, 526 U.S. at
151; Nimely, 414 F.3d at 396. Moreover, in
addition to these criteria for determining
whether the methodology is reliable, Rule
702 also requires that there be a sufficiently
reliable
connection
between
the
methodology and the expert's conclusions
for such conclusions to be admissible. See
Gen. Elec. Co., 522 U.S. at 146 (“[N]othing
in either Daubert or the Federal Rules of
Evidence requires a district court to admit
opinion evidence which is connected to
existing data only by the ipse dixit of the

Thus, under Rule 702, the district court
must make several determinations before
allowing expert testimony: (1) whether the
witness is qualified to be an expert; (2)
whether the opinion is based upon reliable
data and methodology; and (3) whether the
expert’s testimony on a particular issue will
assist the trier of fact. See Nimely, 414 F.3d
at 396-97. Moreover, if the requirements of
Rule 702 are met, the district court must also
analyze the testimony under Rule 403 and
may exclude the testimony “if its probative
value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . .” Fed. R.
Evid. 403; accord Nimely, 414 F.3d at 397.
Under the Daubert standards, the Court
must first determine whether the expert has
sufficient qualifications to testify. See
Zaremba v. Gen. Motors Corp., 360 F.3d
355, 360 (2d Cir. 2004) (stating that, where
the witness lacked qualifications, an analysis
of the remaining Daubert factors “seems
almost superfluous”). Specifically, under
Rule 702, the Court must determine whether
the expert is qualified “by knowledge, skill,
experience, training, or education.” Fed. R.
Evid. 702. A court should look at the totality
of the witness’ qualifications in making this
assessment. See, e.g., Rosco, Inc. v. Mirror
Lite Co., 506 F. Supp. 2d 137, 144-45
(E.D.N.Y. 2007) (“A court must consider
the ‘totality of a witness’[] background
when evaluating the witness’[] qualifications
to testify as an expert.’” (quoting 29 Wright
& Gold, Fed. Prac. & Proc. § 6265, at 246
(1997))); accord Arista Records LLC v.
Lime Group LLC, 06 CV 5936, 2011 WL
1674796, at *2 (S.D.N.Y. May 2, 2011). In
addition, the Court must ensure that the
8

Defendant argues that Morse is not
qualified to offer opinions on warnings
because he is “not an expert in law
enforcement policy, use of force, or
warnings.” (Id. at 17.) The Court disagrees.
Morse has a Bachelor’s Degree and a
Master’s Degree in Biomedical Engineering
from Tulane University, and a Ph.D in
Engineering from Clemson University. He is
a professor of electrical engineering at the
University of San Diego. Morse has
performed research on ECDs and written
peer reviewed articles on electrical injuries.
(Morse Report at 1-2.) Although he does not
have any specific experience with product
warnings, Morse has sufficient experience
regarding the effects of ECDs and the
possible lethality of electricity. See Wheeler
v. John Deere Co., 935 F.2d 1090, 1100
(10th Cir. 1991) (“In a products liability
action, an expert witness is not strictly
confined to his area of practice, but may
testify concerning related applications; a
lack of specialization does not affect the
admissibility of the opinion, but only its
weight.”); Santoro v. Donnelly, 340 F. Supp.
2d 464, 473 (S.D.N.Y. 2004) (“The question
is not whether the engineer is an expert on
the exact issues presented in the case, but
rather, whether his general engineering
experience qualifies him to testify in an area
in which he does not have extensive
experience.”); Lappe v. Am. Honda Motor
Co., Inc., 857 F. Supp. 222, 227 (N.D.N.Y.
1994) (“Liberality and flexibility in
evaluating qualifications should be the rule;
the expert should not be required to satisfy
an overly narrow test of his own
qualifications.” (footnote omitted)), aff'd sub
nom. Lappe v. Honda Motor Co. Ltd. of
Japan, 101 F.3d 682 (2d Cir. 1996)
(unpublished opinion).

expert. A court may conclude that there is
simply too great an analytical gap between
the data and the opinion proffered.”); see
also Amorgianos, 303 F.3d at 266 (“[W]hen
an expert opinion is based on data, a
methodology, or studies that are simply
inadequate to support the conclusions
reached, Daubert and Rule 702 mandate the
exclusion of that unreliable opinion
testimony.”).
With respect to whether the expert’s
testimony will assist the trier of fact, the
Second Circuit has repeatedly emphasized
that “expert testimony that usurps either the
role of the trial judge in instructing the jury
as to the applicable law or the role of the
jury in applying that law to the facts before
it, by definition does not aid the jury in
making a decision; rather, it undertakes to
tell the jury what result to reach, and thus
attempts to substitute the expert’s judgment
for the jury’s.” Nimely, 414 F.3d at 397
(internal alterations, citations, and quotation
marks omitted).
III. DISCUSSION
A. Motions in Limine
1. Dr. Michael Morse, Ph.D.
Plaintiff offers Morse as an expert in
biomedical and electrical engineering, with a
specific expertise in the area of electric
shock injury. (Tait Decl. Ex. 12, Report and
CV of Michael Morse (“Morse Report”) at
1.) Defendants filed a motion in limine to
exclude Morse’s report as it relates to the
warnings that TASER should have given to
law enforcement personnel. (Def.’s Mot. to
Exclude Design and Warnings Opinions of
Michael Morse, Ph.D. (“Def.’s Morse
Mot.”) at 1.) On February 1, 2012 the Court
orally denied defendant’s motion.

Defendant also contends that Morse’s
opinions are unreliable because Morse failed
to adequately review TASER’s training
materials before issuing his report. (Def.’s
9

evidence ‘fit’ the facts of the case is really
an issue of relevance”, and Morse’s
testimony meets the “any tendency”
threshold of Rule 401. Adesina v. Aladan
Corp., 438 F. Supp. 2d 329, 343 (S.D.N.Y.
2006).

Morse Mot. at 18-23.) Morse’s conclusions
regarding the effects of ECDs are
sufficiently reliable, and if Morse testified
specifically about the TASER warnings,
defendant’s argument would be a proper
avenue of cross-examination. See Daubert,
509 U.S. at 596 (“Vigorous crossexamination, presentation of contrary
evidence, and careful instruction on the
burden of proof are the traditional and
appropriate means of attacking shaky but
admissible evidence.”). Defendant’s narrow
arguments pertaining to alleged faults in
Morse’s methodology go to the weight of
his testimony, not its admissibility. See
McCullock v. H.B. Fuller Co., 61 F.3d 1038,
1044 (2d Cir. 1995) (“Disputes as to . . .
faults in [the expert’s] use of differential
etiology as a methodology, or lack of textual
authority for his opinion, go to the weight,
not the admissibility, of his testimony.”); see
also Best v. Lowe’s Home Ctrs., Inc., 563
F.3d 171, 181 (6th Cir. 2009)
(“Admissibility under Rule 702 does not
require perfect methodology.”).

Therefore, plaintiff has demonstrated by
a preponderance of the evidence that
Morse’s opinions are admissible under
Daubert.
2. Edward Mamet
Plaintiff offers Mamet as an expert in
police practices. (Tait Decl. Ex. 15, Report
and CV of Edward Mamet (“Mamet
Report”) at 5, 11.) Defendant filed a motion
in limine to exclude Mamet’s testimony,
arguing that his opinions have no bearing on
the issues in the case. (Mot. to Exclude
Warnings and Training Opinions of
Plaintiff’s Police Practices Expert Edward
Mamet as They Relate to TASER (“Def.’s
Mamet Mot.”) at 1.) On February 1, 2012
the Court orally denied defendant’s motion.

In its reply, defendant argues that it is
not
actually
challenging
Morse’s
qualifications regarding electricity and its
effects on the body, but rather, the relevance
of his opinions “since Cox undeniably did
not suffer an electrical death.” (Def.’s Reply
in Supp. of Def.’s Morse Mot. at 1.) Morse’s
testimony is relevant for explaining the
possible effects of electrical injuries on the
human body and the risks associated with
ECD application. Defendant’s argument that
Morse’s opinions do not shed insight into
Cox’s death may be persuasive to the jury,
but it is not the role of the Court at this stage
to determine which party’s experts have the
better of the argument. See Rink v.
Cheminova, Inc., 400 F.3d 1286, 1293 n.7
(11th Cir. 2005) (“[A] district court may not
exclude an expert because it believes one
expert is more persuasive than another
expert.”). “[T]he requirement that expert

Defendant argues that Mamet is not
qualified to offer opinions in this matter
because he is not sufficiently familiar with
ECDs. For example, Mamet has neither used
an ECD nor attended an ECD training
program. (Id. at 2-3.) The Court disagrees.
Mamet was a police officer with the New
York City Police Department for nearly
forty years. (Mamet Report at 5.) After he
became a captain, Mamet attended a training
course regarding emotionally disturbed
persons, which involved the demonstration
of electronic weapons. Mamet has also
attended a training course regarding the use
of less than lethal force. (Decl. of Fredrick
Brewington, Nov. 30, 2011 (“Brewington
Nov. 30 Decl.”) Ex. X, Feb. 16, 2010 Dep.

10

of Edward Mamet at 47-49.)9 Mamet is also
widely read on the subject. (Mamet 2011
Dep. at 86-88.) Therefore, Mamet has
sufficient experience regarding police
officers using electronic weapons to testify
in this matter. See Wheeler, 935 F.2d at
1100; see also Gardner v. General Motors
Corp., 507 F.2d 525, 528 (10th Cir. 1974)
(“[An expert] can through reading,
calculations, and reasoning process from
known scientific principles make himself
very much expert in the particular product
even though he has not had actual practical
experience in its manufacture.” (citation
omitted)); Arista, 2011 WL 1674796, at *2
(“Courts within the Second Circuit have
liberally construed expert qualification
requirements when determining if a witness
can be considered an expert.” (internal
citations and quotation marks omitted)).

so fundamentally unsupported that it can
offer no assistance to the jury must such
testimony be excluded.” First Union Nat’l
Bank v. Benham, 423 F.3d 855, 862 (8th Cir.
2005) (internal citations and quotation
marks omitted). Plaintiff has demonstrated
that Mamet’s opinions are sufficiently
supported; defendant’s argument on the lack
of factual basis is more properly asserted
during cross-examination. See Daubert, 509
U.S. at 596.
Therefore, plaintiff has demonstrated by
a preponderance of the evidence that
Mamet’s opinions are admissible under
Daubert.
3. Dr. William Manion
Plaintiff has designated Manion to offer
an expert opinion regarding Cox’s cause of
death. Defendants filed a motion in limine to
exclude Manion’s opinions, arguing that not
only is Manion not qualified to render
opinions on the physiological effects of
ECDs, but that Manion’s opinions are
“wholly speculative” and rely on
“fundamentally false assumptions.” (Def.’s
Mot. to Exclude Medical Causation
Opinions of William Manion, M.D. (“Def.’s
Manion Mot.”) at 1.) On February 1, 2012
the Court orally denied defendant’s motion.

Defendant also claims that Mamet’s
opinions are unreliable because he has no
factual basis to provide any opinions on the
necessary warnings. (Def.’s Mamet Mot. at
5-8.) “As a general rule, the factual basis of
an expert opinion goes to the credibility of
the testimony, not the admissibility, and it is
up to the opposing party to examine the
factual basis for the opinion in crossexamination. Only if the expert's opinion is
9

Although this deposition was taken in another
matter in the Eastern District of New York involving
the death of an individual following ECD application
by a TASER product, plaintiff submitted this
deposition as evidence. The attorneys for both parties
were the same as in this action. At the earlier
deposition in the separate action, defense counsel
asked the witness about his experience with ECDs.
Because defense counsel at the deposition in this
matter asked the witness about his experience with
ECDs since that prior deposition, the Court
references the earlier deposition even though it was
taken in a different matter. (See Brewington Nov. 30
Decl. Ex. Z, Feb. 1, 2011 Dep. of Edward Mamet
(“Mamet 2011 Dep.”) at 86 (Q: “[P]lease tell me
everything you have done, specifically in regard to
electronic control devices, since February 16, 2010,
the last deposition.”).)

Defendant argues that Manion is not
qualified to give opinions regarding whether
an ECD caused Cox’s death because he has
neither performed an autopsy on an
individual following the use of an electronic
weapon, nor is he an expert on the flow of
electrical current into the human body. (Id.
at 12-13.) The Court disagrees. Dr. Manion
graduated from West Virginia School of
Medicine and is board certified in anatomic,
clinical, and forensic pathology. He is an
assistant medical examiner and he was
previously the Chairman of the Department
of Pathology at Memorial Hospital in Ohio.
11

He has also held positions as a pathologist at
numerous other hospitals and has taught
courses on pathology, microbiology,
biology, anatomy, and physiology. (See
Manion Report at 9-12.)10 Manion clearly
has the qualifications necessary, under the
liberal standard of Rule 702, to testify
regarding Cox’s cause of death. See
McCullock, 61 F.3d at 1043 (upholding
admission of medical doctor’s testimony and
stating that defendant’s suggestion that the
doctor “had to be a specialist in
environmental medicine to provide expert
testimony in this case is an unwarranted
expansion of the gatekeeper role announced
in Daubert”); see also Quinton v. Farmland
Indus., Inc., 928 F.2d 335, 337 (10th Cir.
1991) (upholding admission of expert
testimony of doctor of veterinary medicine
to testify regarding toxic effects of
substances on animals, even though expert
was not a specialist in the field of
toxicology).

that [the experts’] opinions are reliable.” In
re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
744 (3d Cir. 1994) (footnote omitted).
Defendant’s arguments regarding Manion’s
assumptions and lack of authority go to the
weight, not the admissibility, of his
testimony. See Boucher v. U.S. Suzuki Motor
Corp., 73 F.3d 18, 21 (2d Cir. 1996) (stating
that as long as expert’s assumptions are not
“so unrealistic and contradictory as to
suggest bad faith,” arguments that the
“assumptions are unfounded go to the
weight, not the admissibility, of the
testimony” (internal citations and quotation
marks omitted)); see also McCullock, 61
F.3d at 1044 (“Disputes as to . . . [a] lack of
textual authority for [an] opinion[] go to the
weight, not the admissibility, of [the]
testimony.”). Accordingly, defendant’s
unreliability argument is not a sufficient
basis to exclude the testimony under
Daubert.
Defendant also seeks to have Manion’s
opinions regarding positional asphyxia
excluded. (Def.’s Manion Mot. at 23-25.)
Specifically, Manion stated in his report that
the police officers restricted Cox’s
respiratory muscles, and that this caused “a
reduction in lung capacity and [made] it
impossible for Mr. Cox to relieve his
metabolic acidosis.” (Manion Report at 6.)
Defendant’s contention that Manion
incorrectly understands the facts regarding
Cox’s confrontation with the police is a
proper basis for cross-examination, but there
is no basis to preclude this testimony.11

Defendant also argues that Manion’s
opinions are unreliable. First, defendant
states that Manion’s metabolic acidosis
theory “is factually dependent on the ECD
causing significant muscle contractions” but
that “there is no evidence that the ECD
exposures as applied to Cox caused any such
muscle contractions.” (Def.’s Manion Mot.
at 14.) Defendant also contends that
Manion’s “metabolic acidosis opinions are
wholly unsupported by any medical or
scientific study published to date.” (Id. at
20.) Defendant is attempting to demonstrate
that Manion’s opinions are incorrect.
However, plaintiffs do not “have to
demonstrate . . . by a preponderance of the
evidence that the assessments of their
experts are correct, they only have to
demonstrate by a preponderance of evidence

11

Defendant claims that Manion’s opinions regarding
positional asphyxia actually support its position
because Manion testified at his deposition that “if the
Taser hadn’t been used on [Cox], and [the police
officers] had still strapped him down and sat on him,
he still would have died.” (Brewington Nov. 30 Decl.
Ex. FF, Dep. of William Manion (“Manion Dep.”) at
216.) Therefore, defendant argues, plaintiff cannot
prove that an ECD was the proximate cause of Cox’s

10

Because the pagination restarts in this exhibit,
these page numbers refer to ECF page numbers
assigned to the document.

12

Therefore, plaintiff has demonstrated by
a preponderance of the evidence that
Manion’s opinions are admissible under
Daubert.12

a. Applicable Law
Under New York law, in order to make a
prima facie case for failure to warn, a
plaintiff must show the following: (1) the
manufacturer had a duty to warn; (2) the
manufacturer breached the duty to warn in a
manner that rendered the product defective,
i.e., reasonably certain to be dangerous; (3)
the defect was the proximate cause of the
plaintiff's injury; and (4) the plaintiff
suffered loss or damage. See McCarthy v.
Olin Corp., 119 F.3d 148, 156 (2d Cir.
1997) (citing Becker v. Schwartz, 46 N.Y.2d
401, 410 (1978)); see also Mustafa v. Halkin
Tool, Ltd., No. 00-CV-4851, 2007 WL
959704, at *17 (E.D.N.Y. Mar. 29, 2007).
With respect to failure to warn claims, there
is no distinction between the prima facie
elements under New York law of such a
claim, regardless of whether it is sounding in
negligence or strict liability. See Martin v.
Hacker, 83 N.Y.2d 1, 8 n.1 (1993); see also
Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d
Cir. 1991) (“‘Regardless of the descriptive
terminology used to denominate the cause of
action . . . where the theory of liability is
failure to warn, negligence and strict
liability
are
equivalent.’”
(quoting
Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62
(4th Dep’t 1979))).

B. Summary Judgment
1. Failure to Warn
Plaintiff alleges that TASER negligently
failed to adequately warn law enforcement
of the risks associated with its products,
specifically that multiple applications of an
ECD in drive-stun mode can cause fatal
metabolic acidosis. Plaintiff also brings a
cause of action sounding in strict liability.13

death. (Def.’s Manion Mot. at 23.) However, Manion
clarified that comment by stating that “more likely
than not, [Cox] would have survived” if an ECD was
not used on him. (Manion Dep. at 218.) The Court
concludes that Manion’s qualifications and
methodology in this case are sufficient to satisfy
Daubert, and thus, there is no basis to preclude his
opinion that defendant’s product proximately caused
Cox’s death. However, as discussed infra, even with
that expert conclusion, plaintiff has not introduced
any evidence that defendant knew or should have
known in April 2005 of the specific risk that caused
Cox’s death, and therefore, no rational jury could
find that defendant’s failure to warn of the risk was
the proximate cause of Cox’s death.
12
In connection with its reply papers, defendant also
moves to strike the declaration of Manion, as well as
certain accompanying exhibits, that plaintiff
submitted in support of her opposition to summary
judgment. As stated supra n.1, the Court declines to
address defendant’s motion to strike because the
Court has considered the declaration and exhibits that
defendant seeks to exclude, and the Court
nonetheless grants defendant’s motion for summary
judgment. Thus, the motion to strike is moot.
13
Plaintiff also alleges in her complaint that TASER
negligently designed and manufactured the X26
ECD. Plaintiff summarily reiterates these claims in
her opposition to summary judgment, even though at
the January 27, 2012 Daubert hearing plaintiff’s
counsel conceded that plaintiff’s product liability
claims sounded entirely in a duty to warn theory of
liability. Plaintiff has introduced no evidence to
support a prima facie claim of a design defect or a
manufacturing defect. Therefore, even if not

It is well-settled that a manufacturer has
a duty to warn (1) “against latent dangers
resulting from foreseeable uses of its
product of which it knew or should have
known,” and (2) “of the danger of
unintended uses of a product provided these
uses are reasonably foreseeable.” Liriano v.
Hobart Corp., 92 N.Y.2d 232, 237 (1998).
“Under New York law, the jury does not
need expert testimony to find a warning
inadequate, but may use its own judgment
concerning all the circumstances.” Billiar v.
withdrawn, these claims must also be dismissed
because there is no evidence to support them.

13

v. BIC USA, Inc., 199 F. Supp. 2d 53, 93-94
(S.D.N.Y. 2001); see also Wolfgruber, 72
A.D.2d at 62-63 (granting defendant
summary judgment in a failure to warn case
when there were no disputed facts).

Minn. Mining & Mfg. Co., 623 F.2d 240,
247 (2d Cir. 1980) (citing Rainbow v. Albert
Elia Bldg. Co., 49 A.D.2d 250, 253 (4th
Dep’t 1975) (“[R]ecovery [under a failure to
warn theory] ultimately depends upon a
subjective determination by the trier of the
facts of what constitutes reasonable warning
under all the circumstances.”) and Young v.
Elmira Transit Mix, Inc., 52 A.D.2d 202,
205 (4th Dep’t 1976)). Moreover, the New
York Court of Appeals has described the
standard for evaluating failure to warn
liability as “intensely fact-specific, including
but not limited to such issues as feasibility
and difficulty of issuing warnings in the
circumstances; obviousness of the risk from
actual use of the product; knowledge of the
particular product user; and proximate
cause.” Liriano, 92 N.Y.2d at 243 (citation
omitted). Given this fact-intensive inquiry,
as the Second Circuit has emphasized,
“‘[t]he adequacy of the instruction or
warning is generally a question of fact to be
determined at trial and is not ordinarily
susceptible to the drastic remedy of
summary judgment.’” Urena v. Biro Mfg.
Co., 114 F.3d 359, 366 (2d Cir. 1997)
(quoting Beyrle v. Finneron, 199 A.D.2d
1022, 1023 (4th Dep’t 1993)).

b. Analysis
i.

Evidence in the Record in This Case

TASER trains select law enforcement
personnel to become certified ECD
instructors. (Def.’s 56.1 ¶ 36.) These
instructors then train ECD users within their
departments. (Id.) Instructors receive
materials during their training to assist them
with instructing end users of the ECDs.
(Smith Decl. ¶ 28.) TASER also distributes
operating manuals with the ECD units to
law enforcement personnel. (Def.’s 56.1
¶ 39.)
The parties dispute which version of the
training materials the Court should consider.
Defendant states that TASER’s Version 11
Training CD and the 2003 X26 ECD
Operating Manual were packaged with the
ECD units distributed to the Suffolk County
Police Department in August 2004. (Id.)14
The 2003 Operating Manual states in part:

However,
there
are
certain
circumstances where failure to warn claims
can be decided as a matter of law: (1)
“where the injured party was fully aware of
the hazard through general knowledge,
observation or common sense, or
participated in the removal of the safety
device whose purpose is obvious”; or (2)
where the hazards are “patently dangerous
or pose open and obvious risks.” Liriano, 92
N.Y.2d at 241; accord Bah v. Nordson
Corp., No. 00-CIV-9060, 2005 WL
1813023, at *14 (S.D.N.Y. Aug. 1, 2005).
Summary judgment is also appropriate when
plaintiff has introduced no evidence that a
manufacturer knew or should have known of
the danger at issue. See Colon ex rel. Molina

The TASER X26 is a less-lethal
weapon. It is designed to incapacitate
a target from a safe distance without
causing death or permanent injury.
While the extensive medical
evidence strongly supports the
TASER X26 will not cause lasting
aftereffects or fatality, it is important
to remember that the very nature of
14

Plaintiff disputes that the SCPD offices received
these training materials. (See Pl.’s 56.1 ¶ 39.)
However, this dispute is immaterial for purposes of
this motion because, as discussed infra, the contents
of the warnings or whether SCPD officers received
any warnings have no effect on the Court’s summary
judgment decision as to TASER.

14

The Version 12 CD contains the same
warnings and instructions as the Version 11
CD, i.e., the possible warning signs of a
fatality, that drive-stun mode will not cause
EMD, and that the use of an ECD on
someone in a mental health crisis may have
a limited effect. However, the materials also
contain some expanded warnings. In a slide
entitled “Warnings and Risks,” which
instructors must sign before voluntary
exposure to an ECD, the materials state:

physical confrontation involves a
degree of risk that someone will get
hurt or may even be killed due to
unforeseen
circumstances
and
individual
susceptibilities.
Accordingly, the TASER X26
should be treated as a serious
weapon and should only be deployed
in situations where the alternative
would be to use other force measures
which carry similar or higher degrees
of risk.

The TASER devices are non-lethal
devices. They are designed to
incapacitate a person from a safe
distance without causing death or
permanent injury. While the
extensive medical evidence strongly
supports the TASER devices will not
cause lasting aftereffects or fatality,
it is important to remember that the
very
nature
of
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. As
with any weapon system, there can
be
unforeseen
and
severe
consequences and there will always
be risk involved in this use of force.

(Smith Decl. Ex. C, X26 Operating Manual
at 1.) The Version 11 Training CD contains
numerous warnings and statements relevant
to the issues in this case. The materials
contain a slide entitled “In Custody Death
Warnings Signs” which states in part:
“Instruct your officers to watch for these
danger signs. If a suspect exhibits any of
these signs, get them to medical attention as
quickly as possible as these people are at
elevated risk for an in-custody death.”
(Smith Decl. Ex. D, Instructor Certification
Course TASER X26 and TASER M26 LessLethal Weapons Version 11.0 Released
January 2004 (“Version 11 Training CD”) at
129.) However, the materials also indicate
that drive-stun mode is not fatal: “The drive
stun mode affects the sensory nervous
system ONLY making it a pain compliance
weapon that will not cause EMD.” (Id. at
142.) The materials also state that drive-stun
mode will have limited effect on individuals
in a mental health crisis. “Someone in a
mental health crisis state, under the
influence of a mind altering substance, or
extremely focused are prone to ‘mind-body
disconnection.’ If only the stun mode is
used, the X/M26 becomes a pain compliance
technique with limited threat reduction
potential for subjects at the high end of the
three mind-body disconnect categories.” (Id.
at 143.)

...
The
TASER
device
causes
temporary incapacitation and the
inability to catch yourself as you fall.
This incapacitation and the resulting
fall can be dangerous and even fatal
under specific circumstances.
...
The TASER device causes strong
muscle contractions which may be
severe and may cause physical
exertion athletic type injuries to
15

whether Lixfield and Doherty received
training with the updated materials before
Cox’s death.

some
people.
These
muscle
contractions may result in injuries to
muscles, tendons, ligaments, backs,
joints and stress fractures.

However, this disputed issue is not
material to TASER’s motion. Specifically,
regardless of which version the Court
considers, and regardless of the contents of
the warnings themselves, plaintiff’s claim
still fails to survive summary judgment
because plaintiff has not introduced any
evidence that defendant knew, or should
have known, that multiple applications of an
ECD in drive-stun mode could contribute to
fatal metabolic acidosis. It is well-settled
that a manufacturer cannot insure against all
injuries that arise from the use of its
products. See Micallef v. Miehle Co., Div. of
Miehle-Goss Dexter, Inc., 39 N.Y.2d 376,
386 (1976); see also DeRosa v. Remington
Arms Co., 509 F. Supp. 762, 768 (E.D.N.Y.
1981) (stating that “[a] manufacturer in New
York is not . . . required to act as an insurer
with respect to its product” (citation
omitted)). Instead, “[a] manufacturer has a
duty to warn against latent dangers resulting
from foreseeable uses of its product of
which it knew or should have known . . .
[and] a duty to warn of the danger of
unintended uses of a product provided these
uses are reasonably foreseeable.” Liriano,
92 N.Y.2d at 237 (citations omitted).

The TASER devices cause pain
which can be stressful. This stress
may be injurious to some people.
(Smith Decl. Ex. F, User Certification
Course TASER X26 Non-Lethal Weapon
Version 12.0 Released November 2004
(“Version 12 Training CD”) at 44.)
The materials also warn officers that
“[e]specially when dealing with persons in a
health crisis such as excited delirium, it is
advisable to minimize the physical and
psychological stress to the subject to the
greatest degree possible.” (Id. at 110.) The
warning continues: “If repeated TASER
applications are not having the desired effect
. . . it may be reasonable to redeploy to a
different location on the body or transition
to another force option rather than continue
to expose the subject to the stress of further
TASER applications . . . .” (Id.)
Plaintiff is correct that there is a disputed
issue of fact regarding which version of the
training materials SCPD officers were
operating under at the time of Cox’s death.
TASER used the Version 11 Training CD
while training SCPD officers to become
instructors in September 2004. (Smith Decl.
¶ 28.) Doherty testified that ECD end users
within the department received training in
November 2004, indicating that they
therefore would have been trained under the
Version 11 CD. (Doherty Dep. at 11.)
TASER states that it mailed instructors
within the SCPD the Version 12 Training
CD on December 23, 2012, and that the
updated materials became effective on
January 1, 2005. (Smith Decl. ¶¶ 31-32.)
Therefore, while the Version 12 materials
were in effect when Cox died, it is unclear

During oral argument, the Court asked
plaintiff’s counsel to identify any study
published before Cox’s death or other
evidence that would have placed defendant
on notice of the risk that multiple
applications of an ECD in drive-stun mode
could contribute to metabolic acidosis.
Counsel was unable to do so. The Court
gave plaintiff an opportunity following oral
argument to submit any studies in the record
or court cases that would have placed
defendant on notice of this risk. Although
plaintiff submitted several exhibits, none of
them actually provide any evidence (even
16

construed most favorably to plaintiff) from
which a rational jury could find that
defendant knew or should have known of
this risk in April 2005, and therefore could
have placed a warning regarding such risk in
its training materials.15

into the record with proper foundation
before discovery closed. See Morritt v.
Stryker Corp., No. 07-CV-2319, 2011 WL
3876960, at *5-8 (E.D.N.Y. Sept. 1, 2011)
(holding that a party may not submit
evidence for the first time in connection
with their opposition to a summary
judgment motion).
However, even
assuming the Court could consider this
exhibit, nothing in it suggests a link between
multiple drive-stun applications and
metabolic acidosis. The excerpt of the
presentation provided to the Court mentions
TASERs on only one occasion, stating that
the objective of the presentation is to
“[i]llustrate the effects of TASER
deployment on acidotic subjects.” (Pl.’s
Aug. 13 Letter, Ex. A, at 3.) The only
information in the presentation that the
Court believes could be construed to favor
plaintiff’s position is the statement that a
study “demonstrated that severe metabolic
acidosis is associated with cardiac arrest
following exertion in a restrained position.”
(Id. at 16.) However, this broad statement
that does not even discuss ECDs is not
sufficient to place defendant on notice of the
possible risks of its product.

Plaintiff
submitted
a
medical
presentation authored in 2002 by Mark
Johnson (“Johnson”), the Director of
Technical Programs at TASER from 20032007. (See Letter Pursuant to the Court’s
Order of Aug. 3, 2012, ECF No. 126-1
(“Pl.’s Aug. 13 Letter”), Ex. A, at 2; Id. Ex.
B, at 20.)16 Johnson worked at the Hennepin
County Medical Center in Minnesota
(“Hennepin”) at the time of the presentation.
(Id. Ex. A at 2.) As a threshold matter, this
exhibit should not be considered by this
Court because plaintiff failed to introduce it
15

Defendant argues that plaintiff must demonstrate
that TASER knew or should have known of the risk
at the time of the product’s marketing, not at the time
of Cox’s death. (See Def.’s Mem. at 16 (citing
Geressy v. Digital Equip. Corp., 980 F. Supp. 640,
649 (E.D.N.Y. 1997) (“Whether [a product] is
reasonably safe ‘when marketed’ depends in part on
what the manufacturer knew or should have known at
the time of marketing . . . .”)).) Defendant fails to cite
the next sentence of Geressy, which states that a
“manufacturer may be found to be unreasonable even
after the product has been marketed if it should have
been aware of dangers and it was reasonable to try to
bring them to the attention of users of the product in
the field.” 980 F. Supp. at 649. New York law clearly
imposes a post-sale duty to warn on manufacturers.
See Cover v. Cohen, 61 N.Y.2d 261, 275 (1984)
(“Although a product be reasonably safe when
manufactured and sold and involve no then known
risks of which warning need be given, risks thereafter
revealed by user operation and brought to the
attention of the manufacturer or vendor may impose
upon one or both a duty to warn.” (citations
omitted)). However, even if defendant’s duty to warn
extended until Cox’s death in April 2005, plaintiff
has not introduced sufficient evidence for a rational
jury to conclude that defendant knew or should have
known of this risk at that time.
16
Because the pagination is not clearly labeled for
plaintiff’s submission, the Court has used the page
numbers assigned to the documents by ECF.

Plaintiff also submitted an excerpt from
a 2006 deposition of Patrick Smith
(“Smith”), the TASER executive who
submitted a declaration in this case, that was
taken in connection with an action in the
Northern District of California. (See id. Ex.
C.) Not only is this testimony not in the
record in the action before this Court, but it
also does not support plaintiff’s position.
During the deposition, Smith merely
confirms that Johnson worked on a study at
Hennepin to test for ventricular fibrillation
on sheep following ECD application. (Id. at
28.) Smith does not state that the study
concluded that ECD application induced
ventricular fibrillation, a condition not at
issue in this case, let alone caused metabolic
acidosis. (Id. at 28-29.)
17

find, any document in those cases indicating
that a medical professional determined that
metabolic acidosis contributed to any of the
decedents’ causes of death.

Plaintiff also submitted a chart listing
twenty-five incidents prior to Cox’s death in
which an individual died after receiving an
ECD application in drive-stun mode. (Id.
Ex. D.) Plaintiff states that the list is derived
from the book Taser Electronic Control
Devices and Sudden In-Custody Death by
Howard E. Williams (2008). The
information contained in this chart is clearly
hearsay. See Williamson v. Recovery Ltd.
P’ship, No. 06-Civ-5724, 2007 WL 102089,
at *4 (S.D.N.Y. Jan. 16, 2007). Even if the
Court could consider this exhibit, the chart
does not state that a medical examiner
concluded in any of these instances that the
proximate cause of these individuals’ deaths
was an ECD, or that they died from
metabolic acidosis. Thus, this exhibit also
does not assist plaintiff’s case.

Although not discussed in plaintiff’s
memorandum of law, or in the exhibit
submitted
following
oral
argument,
plaintiff’s counsel stated at oral argument
that Glowczenski v. TASER International,
Inc., No. 04-CV-4052 (E.D.N.Y.), and Rosa
v. City of Seaside, No. C 05-3577 (N.D.
Cal.) should have placed defendant on
notice. In those cases, the decedents died in
a manner similar to Cox following ECD
application by the police, and the plaintiffs’
experts in those cases stated that metabolic
acidosis contributed to their deaths. While
the incidents alleged in these cases happened
prior to Cox’s death, there is no evidence
that TASER knew in April 2005 that
metabolic acidosis contributed to these
fatalities. For example, in Glowczenski,
plaintiff’s counsel also introduced Manion
as an expert to support a metabolic acidosis
theory. However, Manion was not submitted
as an expert in the case until 2011, six years
after Cox’s death. See Glowczenski v.
TASER Int’l, Inc., No. 04-CV-4052
(E.D.N.Y.), ECF No. 191. Similarly, the
Rosa lawsuit was not filed until months after
Cox’s death.

The Court also allowed plaintiff to
submit court cases that alleged incidents that
would have placed defendant on notice.
While plaintiff cited to four cases in various
federal courts throughout the United States,
none of these cases actually support
plaintiff’s argument.
In Goebel v. TASER International, Inc.,
07-CV-28 (N.D. Ohio), plaintiff voluntarily
dismissed the action without prejudice just
one month after filing the complaint, even
before TASER had the opportunity to appear
in the action. In addition, the complaint does
not allege a medical diagnosis regarding the
cause of death.

The only other incident relied on by
plaintiff involves the death of a 7-month-old
infant after the child’s foster mother
repeatedly shocked him with a non-TASER
stun gun. (See Brewington May 31 Decl. Ex.
EE, Stun Gun Injuries in the Abuse and
Death of a Seven-Month Old Infant, J.
Forensic Sci., Jan 2003, Vol. 48, No. 1 at 1.)
Although this incident became public well
before defendant marketed the ECDs at
issue in this case, no rational jury could find
that defendant should have known of the
risk of metabolic acidosis in adults based on

The other three cases, Bolander v.
TASER International, Inc., No. 07-CV80789 (S.D. Fla.), Woolfolk v. Columbia
County, Florida, No. 07-CV-137 (M.D.
Fla.), and Williams v. TASER International,
Inc., 06-CV-51 (N.D. Ga.), all concern
incidents that occurred prior to Cox’s death.
However, plaintiff has not pointed to, and
the Court in its independent review did not
18

the death of a 7-month-old infant weighing
less than 13 pounds from another
manufacturer’s stun gun.17

2011) (stating that under Tennessee law a
manufacturer is not negligent for failing to
“test for every possible risk that, with the
benefit of hindsight, could be envisioned
from use of the product”).

Plaintiff essentially alleges that TASER
should have known of the risks of fatal
metabolic acidosis because “a manufacturer
has a duty to test fully and inspect its
products to uncover all dangers that are
scientifically discoverable.” George v.
Celotex Corp., 914 F.2d 26, 28 (2d Cir.
1990) (citations omitted).18 In fact, under
New York law, a manufacturer does not
have an unqualified duty to uncover all
dangers that are scientifically discoverable.
See In re Joint E. & S. Dists. Asbestos Litig.,
762 F. Supp. 519, 526 (E.D.N.Y. &
S.D.N.Y. 1991) (stating that the Second
Circuit in Celotex “was not suggesting that
an unqualified [jury] charge of a ‘duty to test
fully and inspect’ their ‘products to uncover
all
dangers
that
are
scientifically
discoverable’ was the only proper charge”).
Instead, New York law holds that a
manufacturer “must keep abreast of
knowledge of its products as gained through
research, adverse reaction reports, scientific
literature and other available methods.”
Baker v. St. Agnes Hosp., 70 A.D.2d 400,
406 (2d Dep’t 1979). As discussed supra,
plaintiff has introduced no evidence that
defendant should have known in 2005,
either through its own testing or by closely
monitoring medical studies and reports of
fatalities following ECD use, of the risk of
fatal metabolic acidosis from ECDs. Cf.
Rodriguez v. Stryker Corp., No. 08-0124,
2011 WL 31462, at *10 (M.D. Tenn. Jan. 5,

ii.

The Rosa Decision

In Rosa v. Taser International Inc., 684
F.3d 941 (9th Cir. 2012), the Ninth Circuit
recently affirmed summary judgment in
favor of TASER under extremely similar
circumstances to those of the instant case.
Although obviously non-binding, this Court
finds that analysis in Rosa to be wellreasoned, persuasive, and consistent with
this Court’s conclusion under New York
law.
On August 29, 2004, Michael Rosa died
after receiving multiple ECD applications by
police officers in both probe deployment and
drive-stun mode. Id. at 944-45. The medical
examiner concluded that the cause of death
was “ventricular arrhythmia . . . due to
methamphetamine
intoxication,”
with
“Taser application and arrest by police” as
contributing conditions. Id. at 945 (internal
quotation marks omitted). Rosa’s death “was
subsequently linked to metabolic acidosis . .
. .” Id. Plaintiff alleged that TASER was
liable under both negligence and strict
liability theories for failing to warn of the
potential fatal side effects of its products. Id.
To demonstrate that TASER should have
known that its products could cause fatal
metabolic acidosis, plaintiff submitted four
peer-reviewed articles. However, the Ninth
Circuit found that the studies did “not
establish a triable issue of fact that the risk
of metabolic acidosis was knowable at the
time of [the product’s] distribution” because
two of the articles did not link its findings to
the use of ECDs, and the other two merely
speculated that ECDs could cause acidosis,
without actually testing the hypothesis and
establishing a causal link. Id. at 948-49.

17

Defendant seeks to exclude this exhibit in their
motion to strike. However, as stated supra n.1, the
Court need not resolve whether this exhibit should be
excluded because even considering this exhibit, the
Court still grants defendant’s motion for summary
judgment.
18
Although plaintiff does not cite Celotex, it appears
that plaintiff intended to recite this proposition of
law. (See Pl.’s Opp’n at 20.)

19

posed by its product. Compare Rosa v. City
of Seaside, 675 F. Supp. 2d 1006, 1011
(N.D. Cal. 2009) (stating that under
California law a plaintiff must prove that
“the defendant knew or reasonably should
have known that the product was dangerous
or was likely to be dangerous when used in a
reasonably foreseeable manner” or “the
product had potential risks that were known
or knowable at the time of manufacture or
distribution” (citations omitted)) with
Liriano, 92 N.Y.2d at 237 (“A manufacturer
has a duty to warn against latent dangers
resulting from foreseeable uses of its
product of which it knew or should have
known . . . [and] a duty to warn of the
danger of unintended uses of a product
provided these uses are reasonably
foreseeable.” (citations omitted)). Thus,
under that standard, the Rosa decision held
that, because there are no studies or
evidence to suggest that TASER should
have known of the risk of metabolic acidosis
at the time in question, summary judgment
is appropriate.
This Court similarly
concludes under New York law that,
because there are no studies or other
evidence to suggest that TASER should
have known of the risk of metabolic acidosis
in April 2005, summary judgment for
TASER is warranted.

Thus, summary judgment in favor of
TASER was appropriate because “the risk of
lactic acidosis was not knowable in 2003.”
Id. at 950.
In Rosa, plaintiff argued that TASER
should be held liable because TASER issued
a warning in 2009 discussing the risk of
metabolic acidosis. Id. at 948. The Ninth
Circuit, citing Federal Rule of Evidence 407,
stated that “[b]ecause the fact of this 2009
warning is not admissible to establish what
was knowable in December 2003, it cannot
aid [plaintiff] in avoiding summary
judgment.” Id. As in Rosa, this Court may
only consider evidence that defendant
should have known of this risk in April
2005, and like the plaintiff in Rosa, plaintiff
has failed to introduce any evidence,
admissible or otherwise, to support her
contention. Thus, no rational jury could find
that TASER knew, or should have known,
of the risk of fatal metabolic acidosis in
2005. See Basko v. Sterling Drug, Inc., 416
F.2d 417, 426 (2d Cir. 1969) (holding that a
manufacturer is not “expected to warn of
unknown dangers”).
Plaintiff urges the Court to ignore the
Rosa decision and find it to be unpersuasive
because the case (1) was decided under
California law, and (2) involved what
TASER should have known in December
2003, while the products were sold in this
case in August 2004 and Cox did not die
until April 2005. There are some small
differences between California and New
York products liability law, and this Court
has evaluated (as required under New York
law) whether there is any evidence in the
record that TASER should have known of
the risk at the time of Cox’s death in April
2005, rather than at the time of sale (as
required under California law). However,
the law in both states dictates that a
manufacturer may only be held liable if it
knew or should have known of the danger

Plaintiff states that a footnote in Rosa
actually supports her position that defendant
should have known of the risk. In that
footnote, the Ninth Circuit stated that “[t]he
parties conceded at oral argument that the
study that most strongly supported
[plaintiff’s] position, James R. Jauchem, et
al., Acidosis, Lactate, Electrolytes, Muscle
Enzymes, and Other Factors in the Blood of
Sus Scrofa Following Repeated TASER
Exposures, 161 FORENSIC SCI. INT’LL
20, 28 (2006), was first presented at a
conference in late 2004, several months after
[plaintiff’s] death. It was not published for
an additional two years.” Rosa, 684 F.3d at
20

any evidence that defendant knew or should
have known in April 2005 that ECD
application in drive-stun mode could cause
metabolic acidosis.19 Therefore, no rational
jury could conclude that defendant TASER
knew or should have known of this risk at
the time of Cox’s death when plaintiff has
not submitted any evidence, through medical
studies or otherwise, which would have
placed defendant on notice in April 2005.
Accordingly, the Court grants defendant’s
motion for summary judgment on the
negligence and strict liability claims.20

949 n.8. This study has been introduced as
evidence in this matter. (See Brewington
Nov. 30 Decl. Ex. V.) Not only has plaintiff
not introduced evidence that this research
was publicly available before Cox’s death (it
was apparently presented at a conference in
late 2004, but was not published online until
months after Cox’s death), but this study
involved extreme testing of ECD application
in probe deployment mode on pigs, not
drive-stun mode on humans. (See id. at 2022.)
Rosa would have absolutely no bearing
on this case had plaintiff been able to
identify any evidence that defendant knew
or should have known of this risk in April
2005 and nevertheless failed to warn users
of its product. However, having been given
multiple opportunities by the Court to
present a study or a case supporting her
position, plaintiff has only submitted
inadmissible exhibits that, even if
admissible, would not allow a rational jury
to conclude that defendant knew or should
have known of the risk.

2. Breach of Warranty
Defendant also moved for summary
judgment on plaintiff’s breach of express
warranty and breach of implied warranty
claims. Although plaintiff did not oppose
this portion of defendant’s motion in her
opposition to summary judgment, plaintiff’s
counsel stated at oral argument that these
claims had not been withdrawn.
19

For example, plaintiff and plaintiff’s expert
repeatedly cite a Canadian report commissioned by
the provincial government of British Columbia that is
strongly critical of the use of ECDs. (See Brewington
May 31 Decl. Ex. B, Braidwood Commission Report
at 19-25.) The report states that “several researchers
have raised concerns” that the electrical current from
ECDs can interfere with the ability to breathe, which
can lead to acidosis. (Id. at 14.) However, this report
was released in June 2009, more than four years after
Cox’s death. Any citation to this report “is not
admissible to establish what was knowable” in April
2005, and “it cannot aid [plaintiff] in avoiding
summary judgment.” Rosa, 684 F.3d at 948.
20
Defendant also moves for summary judgment on
the failure to warn claim by arguing (1) that the
warnings were adequate as a matter of law, and (2)
that the danger here was open and obvious, and
therefore, there was no duty to warn. (See Def.’s
Mem. at 14-15, 19-21.) Because the Court finds that
defendant should prevail on summary judgment,
given that no rational jury could conclude that
TASER knew or should have known of the risk in
April 2005, it need not decide whether the warnings
were adequate as a matter of law or whether the
danger was open and obvious.

***
The Court recognizes that it must
proceed with great caution in granting
summary judgment in a failure to warn
products liability case as “[t]he adequacy of
the instruction or warning is generally a
question of fact to be determined at trial . . .
.” Beyrle, 199 A.D.2d at 1022. However, a
Court “shall grant summary judgment if the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also
Wolfgruber, 72 A.D.2d at 62-63. New York
law requires plaintiff to prove by a
preponderance of the evidence that a
manufacturer knew or should have known of
a particular risk and failed to warn of that
risk. However, plaintiff has not submitted
21

Forklift, Inc., 14 A.D.3d 63, 66 (3d Dep’t
2004) (internal alterations, citations, and
quotation marks omitted); accord Denny v.
Ford Motor Co., 87 N.Y.2d 248, 259-60
(1995). “A warranty of fitness for ordinary
purposes does not mean that the product will
fulfill a buyer's every expectation.” Denny,
87 N.Y.2d at 258 n.4 (internal alterations,
citation, and quotation marks omitted).
Instead, recovery for breach of the implied
warranty of merchantability is warranted
“upon a showing that the product was not
minimally safe for its expected purpose –
without regard to the feasibility of
alternative designs or the manufacturer's
‘reasonableness’ in marketing it in that
unsafe condition.” Id. at 259.

a. Applicable Law
An express warranty is created by “[a]ny
affirmation of fact or promise made by the
seller to the buyer which relates to the goods
and becomes part of the basis of the
bargain,” “[a]ny description of the goods
which is made part of the basis of the
bargain,” or “[a]ny sample or model which
is made part of the basis of the bargain.”
N.Y. U.C.C. § 2-313(1)(a); see also
Scientific Components Corp. v. Sirenza
Microdevices, Inc., 399 F. App’x 637, 639
(2d Cir. 2010) (summary order). “Under that
provision, in order to demonstrate that an
express warranty was created under New
York law, a plaintiff must prove that the
statement falls within the definition of a
warranty, that he or she relied on it, and that
it became part of the basis for the bargain.”
Kaplan v. Home Depot USA, Inc., No. 11
Civ. 2125, 2012 WL 3283456, at *4
(S.D.N.Y. Aug. 13, 2012) (internal
alterations, citations, and quotation marks
omitted).

Although “a cause of action for breach
of warranty is a contractual remedy . . .
which seeks to provide the parties with the
benefit of their bargain,” Martin v. Julius
Dierck Equip. Co., 43 N.Y.2d 583, 589
(1978), a warranty extends to a person “if it
is reasonable to expect that such person may
use, consume or be affected by the goods
and who is injured in person by breach of
the warranty.” N.Y. U.C.C. § 2-318.

The implied warranty of merchantability
is governed by New York Uniform
Commercial Code Section 2-314(1), which
provides that “a warranty that the goods
shall be merchantable is implied in a
contract for their sale if the seller is a
merchant with respect to goods of that
kind.” N.Y. U.C.C. § 2-314(1). In order for
goods to be merchantable, they must be “fit
for the ordinary purposes for which such
goods are used.” Id. § 2-314(2)(c).
Therefore, “[t]o establish that a product is
defective for purposes of a breach of implied
warranty of merchantability claim, a
plaintiff must show that the product was not
reasonably fit for its intended purpose, an
inquiry that focuses on the expectations for
the performance of the product when used in
the customary, usual and reasonably
foreseeable manners.” Wojcik v. Empire

b. Analysis
In TASER’s “Sales Terms and
Conditions,” TASER included a limited
warranty that states: “TASER warrants that
its products are free from defects in
workmanship and materials for a period of
one year from the date of purchase.” (Smith
Decl. Ex. B, at 2.) TASER stated that this
was the “exclusive warranty” and
“disclaim[ed] any and all other warranties,
whether express, implied or statutory,
including, without limitation, any implied
warranties of merchantability, design or
fitness . . . .” (Id.)
Plaintiff’s claim of a breach of an
express warranty must be dismissed as a
22

requirements imposed by the U.C.C. In
addition, the disclaimer exclusion is
conspicuous. It appears directly below the
limited warranty, with a bold-face and
underlined heading entitled “Warranty
Exclusions.” (Smith Decl. Ex. B at 2.) The
exclusion is in a larger font and in all capital
letters. See Kolle, 2006 WL 1085067, at *4
(holding that an exclusion was conspicuous
when it was “printed in boldface type, in all
capital letters, under [a] boldface heading”);
Sky Acres Aviation Servs., Inc. v. Styles
Aviation, Inc., 210 A.D.2d 393, 393 (2d
Dep’t 1994) (disclaimer “in bold type and
readily noticeable” is conspicuous).

matter of law because plaintiff has not
brought forth any evidence that the ECDs at
issue contained any defects in workmanship
and materials. Even assuming that plaintiff
introduced evidence of defects in
workmanship and materials, plaintiff’s claim
must fail because she has not introduced any
evidence that the SCPD relied on this
statement when purchasing the ECDs. See
Traub v. Cornell Univ., No. 94-CV-502,
1998 WL 187401, at *11 (N.D.N.Y. Apr.
15, 1998) (holding that “express warranty
claims must be dismissed because
[plaintiffs] cannot show that any purchaser
relied on the statement . . . .”). Therefore, no
rational jury could find that defendant
breached the express warranty.

Therefore, defendant’s motion for
summary judgment is granted on plaintiff’s
breach of warranty claims.

Plaintiff’s claim of a breach of the
implied warranty must also fail because
TASER clearly disclaimed all implied
warranties. The U.C.C. allows sellers to
exclude implied warranties. To exclude the
implied warranty of merchantability, the
language disclaiming the warranty must use
the word “merchantability,” and if the
exclusion is in writing, it must be
“conspicuous.” N.Y. U.C.C. § 2-316(2). To
exclude the implied warranty of fitness, the
exclusion “must be by a writing and
conspicuous.” Id.; see also Maltz v. Union
Carbide Chems. & Plastics Co., 992 F.
Supp. 286, 304 (S.D.N.Y. 1998) (“It is wellsettled that under New York law, parties to a
contract may exclude or modify implied
warranties so long as the warranty
disclaimer is conspicuous and specific.”).
“The question of whether a particular
disclaimer is conspicuous is a question of
law to be determined by the Court.” Kolle v.
Mainship Corp., 04-CV-711, 2006 WL
1085067, at *3 (E.D.N.Y. Apr. 20, 2006).

3. Wrongful Death
Plaintiff also asserts a claim for
wrongful death under N.Y. Estate Powers &
Trusts Law § 5-4.1. To make out a prima
facie claim of wrongful death, a plaintiff
must establish “(1) the death of a human
being, (2) the wrongful act, neglect or
default of the defendant by which the
decedent's death was caused, (3) the survival
of distributees who suffered pecuniary loss
by reason of the death of decedent, and (4)
the appointment of a personal representative
of the decedent.” Chong v. N.Y.C. Transit
Auth., 83 A.D.2d 546, 547 (2d Dep’t 1981).
Because no rational jury could find that
defendant failed to warn of the risks of its
product or breached a warranty, plaintiff
cannot satisfy the second element of the tort,
which requires a “wrongful act [or] neglect.”
Therefore, summary judgment is awarded to
defendants, and plaintiff’s wrongful death
claim against TASER is dismissed. See
Cerbelli v. City of N.Y., 600 F. Supp. 2d
405, 429 (E.D.N.Y. 2009) (adopting Report
and Recommendation) (stating that because

In this case, it is clear that TASER
properly disclaimed all implied warranties.
The language in the Sales Terms and
Conditions is unambiguous and tracks the
23

“plaintiff fails to sustain a negligence or
medical malpractice cause of action . . .
[plaintiff] . . . cannot prove the second
element of a wrongful death claim”); Tuosto
v. Philip Morris USA Inc., 05-CIV-9384,
2007 WL 2398507, at *16 (S.D.N.Y. Aug.
21, 2007) (dismissing plaintiff’s wrongful
death claim because all of plaintiff’s other
claims had been dismissed).
IV. CONCLUSION
For the foregoing reasons, defendant
TASER’s motion for summary judgment is
granted in its entirety. The Clerk of the
Court shall enter judgment accordingly and
close the case.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 8, 2013
Central Islip, NY
***
Plaintiff is represented by Frederick K.
Brewington and Ira Fogelgaren, Law Offices
of Frederick K. Brewington, 556 Peninsula
Boulevard, Hempstead, NY 11550. The
attorneys for defendants are John V. Tait,
Christopher Renzulli, and John Renzulli,
Renzulli Law Firm, LLP, 81 Main Street,
White Plains, NY 10601 and Michael Brave
and Holly L. Gibeaut, TASER International,
Inc., 17800 North 85th Street, Scottsdale,
AZ 85255.

24