Taylor v. Taser International, Inc.

Filing 114

MEMORANDUM OPINION denying 69 MOTION to Strike Designation of Responsible Third-Party or, in the Alternative, Motion for Partial Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KAREN TAYLOR,
Plaintiff,
v.
TASER INTERNATIONAL, INC.,
Defendant.

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June 13, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-673

MEMORANDUM OPINION
Pending before the court1 is Plaintiff’s Motion to Strike
Designation of Responsible Third Party or, in the Alternative,
Motion for Summary Judgment (Doc. 69).2

The court has considered

the motion, the response, all other relevant filings, and the
applicable law.

For the reasons set forth below, the court DENIES

the motion.
I.

Case Background

On October 8, 2015, Plaintiff answered a disturbance call at
a convenience store where a woman was drinking beverages before
paying for them and refused to leave upon the owner’s request.3
The woman, Florence Walker (“Walker”), was pacing outside the store

1

The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 105, Ord. Dated
May 29, 2018.
2
Several other motions remain pending, and the court will address
those motions at a later date.
3

See Doc. 24, Pl.’s 1 st Am. Compl. p. 13.

when Plaintiff arrived.4

Plaintiff attempted to direct Walker

toward Plaintiff’s patrol car and to “gain control over . . .
Walker without the use of any force.”5

Walker, who was suffering

from a psychosis, became “suddenly violent and uncontrollable” and
fought with Plaintiff.6

Plaintiff deployed a TASER X2 Conducted

Electrical Weapon (“Taser”) multiple times during the altercation.7
Walker “continued with her vicious attack on [Plaintiff,] which
resulted in

serious,

permanent,

injuries to her back.”8

disabling

and

career[-]ending

Defendant does not dispute that Walker

suffered from mental illness or that Walker’s attack resulted in at
least a portion of Plaintiff’s alleged injuries.9
Plaintiff filed this action against the company that supplied
the Houston Police Department with Tasers and other products and
services.10

Plaintiff asserted a claim under the Texas Deceptive

Trade Practices - Consumer Protection Act (“DTPA”) and common law
claims

of

strict

tort

liability,

negligence,

4

Id.

7

See id. pp. 14-15.

8

of

Id. (internal quotations marks omitted).

6

breach

See id. at p. 14.

5

and

Id. p. 16.

9

See id.; Doc. 84, Def.’s Opp’n to Pl.’s Mot. to Strike Designation
of Responsible 3d Party or, in the Alternative, Mot. for Partial Summ. J. p. 1.
10

See Doc. 1, Pl.’s Orig. Compl.

2

warranty.11

On July 25, 2017, Defendant filed a motion for leave

to designate Walker as a responsible third party pursuant to
Chapter 33 of the Texas Civil Practices and Remedies Code (“Chapter
33”).12

On August 16, 2017, the court granted the motion.13

Plaintiff filed the pending motion to strike the designation on
April 20, 2018.14
II.

Responsible Third Party

Chapter 33, which is generally recognized as applicable in
diversity actions, applies to any action based on tort or brought
under

the

DTPA

“in

which

a

defendant,

settling

person,

or

responsible third party is found responsible for a percentage of
the harm for which relief is sought.”

Tex. Civ. Prac. & Rem. Code

§ 33.002(a); see also EH Nat’l Bank v. Tran, Civil Action No. 3:16cv-00083-M,

2016

WL

4138634,

at

*2

(N.D.

Tex.

Aug.

4,

2016)(unpublished)(quoting Hernandez v. Bumbo (Pty.) Ltd., No.
3:12-cv-1213-M,

2014

WL

924238,

at

*1

(N.D.

Tex.

Mar.

10,

2014)(unpublished), as stating that Chapter 33 is state substantive
law that applies to diversity actions).
A “responsible third party” is:
[A]ny person who is alleged to have caused or contributed

11

See id. pp. 6-8.

12

See Doc. 22, Def.’s Mot. for Leave to Designate Responsible 3 d Party.

13

See Doc. 30, Mem. Op. & Ord. Dated Aug. 16, 2017.

14

See Doc. 69, Pl.’s Mot. to Strike Designation of Responsible 3 d Party
or, in the Alternative, Mot. for Summ. J.

3

to causing in any way the harm for which recovery of
damages is sought, whether by negligent act or omission,
by any defective or unreasonably dangerous product, by
other conduct or activity that violates an applicable
legal standard, or by any combination of these.
Tex. Civ. Prac. & Rem. Code § 33.011(6).

The definition of

“percentage of responsibility” refers to the percentage attributed
to each plaintiff, defendant, settling person, or responsible third
party with respect to causing by any of the ways described in the
definition of responsible third party the personal injury, property
damage, death, or other harm for which recovery of damages is
sought.

Tex. Civ. Prac. & Rem. Code § 33.011(4).

Neither the designation of a third party as responsible nor
the finding of fault against that person imposes liability on that
person.

Tex. Civ. Prac. & Rem. Code § 33.004(i).

Thus, “[a]

defendant may liberally designate responsible third parties[,] . .
. even parties who are not subject to the court’s jurisdiction or
who are immune from liability to the claimant.”
Motor of

Am.,

Inc.,

CIVIL

ACTION

NO.

Brewer v. Suzuki

4:15-CV-00197,

2016

WL

4159754, at *3 (S.D. Tex. Aug. 3, 2016)(unpublished)(quoting Fisher
v. Halliburton, 667 F.3d 602, 621-22 (5th Cir. 2012)); see also In
re

Unitec

Elevator

Servs.

Co.,

178

S.W.3d

53,

58

n.5

(Tex.

App.—Houston [1st Dist.] 2005, no pet.).
After a motion for leave to designate a responsible third
party is granted, the person named in the motion is so designated
without further action by the court or any party.

4

Tex. Civ. Prac.

&

Rem.

Code

§

33.004(h).

A

party

may

move

to

strike

the

designation after an adequate time for discovery “on the ground
that there is no evidence that the designated person is responsible
for any portion of the claimant’s alleged injury or damage.”
Civ. Prac. & Rem. Code § 33.004(l).

Tex.

The court is directed to grant

the motion to strike “unless a defendant produces sufficient
evidence to raise a genuine issue of fact regarding the designated
person’s responsibility for the claimant’s injury or damage.” Tex.
Civ. Prac. & Rem. Code § 33.004(l).
If the designation survives a motion to strike, the defendant
then bears the burden at trial to produce evidence that the
designated

person

is

responsible

for

some

portion

of

the

plaintiff’s damages. See Tex. Civ. Prac. & Rem. Code § 33.003(b).
Ultimately,

the

trier

of

fact

is

tasked

with

deciding,

if

sufficient evidence is presented on the conduct of each designated
party,

the

percentage

of

responsibility

that

falls

to

each

claimant, defendant, settling person, and/or designated third party
as to each cause of action asserted.

Tex. Civ. Prac. & Rem. Code

§ 33.003.
III. Analysis
Plaintiff moves to strike the designation of Walker as a
responsible third party.

The burden is on Defendant to produce

sufficient evidence to raise a fact issue regarding whether Walker,
by conduct that violated an applicable legal standard, caused or

5

contributed to causing in any way Plaintiff’s physical and other
injuries for which she seeks recovery of damages.
question that concerns the court at this time.

This is the only

If Defendant meets

its legal burden at this stage, it carries that burden to trial,
where it must convince a jury that Walker is responsible for all or
some portion of Plaintiff’s damages.
Because the harm for which damages are sought in this lawsuit
includes the physical injuries that Plaintiff suffered at the hands
of Walker, the applicable legal standard is civil assault.

“The

elements of a civil assault mirror those of a criminal assault,”
which is defined by the following behavior:
(1) intentionally, knowingly, or recklessly caus[ing]
bodily injury to another . . .;
(2) intentionally or knowingly threat[ing] another with
imminent bodily injury . . .; or
(3) intentionally or knowingly caus[ing] physical contact
with another when the person knows or should reasonably
believe that the other will regard the contact as
offensive or provocative.
Tex. Penal Code § 22.01(a); Loaisiga v. Cerda, 379 S.W.3d 248, 256
(Tex. 2012).

Plaintiff’s own allegations to which Defendant does

not object provide sufficient evidence to raise a fact issue
regarding

whether

Walker

caused

or

contributed

to

causing

Plaintiff’s physical and other injuries resulting from Walker’s
assault.

This alone meets Defendant’s current burden and requires

that the court deny Plaintiff’s motion.

6

Furthermore, Plaintiff’s

arguments15 in favor of striking the designation do not move the
court to reach beyond the parameters of the statute for several
reasons.
First, federal preemption does not apply.

Federal preemption

applies “when Congress so completely preempts a particular area
that any civil complaint raising this select group of claims is
necessarily federal in character.”

Elam v. Kan. City S. Ry. Co.,

635 F.3d 796, 803 (5th Cir. 2011)(internal quotation marks and
alterations omitted).
between

Defendant’s

Trademark

Office

Plaintiff frames the preemption conflict as
representations

(“USPTO”)

“to

to

the

establish

U.S.

Patent

novelty

and

and
non-

obviousness under 35 U.S.C. §§ 102, 103, and the USPTO’s approval
of [the] invention as novel and non-obvious, on the one hand; and
its diametrically opposed argument that the device’s failure is
reasonably foreseeable under Texas law, on the other.”16

Congress

has preempted the area of patent law.

However, nothing in this

case

by

falls

within

the

area

covered

federal

patent

law,

regardless of any representations made during the prosecution of

15

In her reply, Plaintiff conceded that Defendant raised a fact issue
on intervening cause.
See Doc. 98, Pl.’s Reply in Support of Mot. to Strike
Designation of Responsible 3d Party or, in the Alternative, Mot. for Partial
Summ. J. p. 1 n.1. The court offers no opinion as to whether “intervening cause”
applies at all to the designation of Walker as a responsible third party.
16

Doc. 98, Pl.’s Reply in Support of Mot. to Strike Designation of
Responsible 3 d Party or, in the Alternative, Mot. for Partial Summ. J. p. 3 n.4.
(emphasis omitted).

7

any patent.17
Second, the equitable doctrine of judicial estoppel also does
not apply.

“Judicial estoppel is . . . applied in the court’s

discretion to prevent a party from asserting a position in a legal
proceeding that is contrary to a position previously taken by [that
party] in the same or some earlier legal proceeding. United States
v. Farrar, 876 F.3d 702, 709 (5th Cir. 2017)(internal quotation
marks omitted).

Plaintiff states that the basis for judicial

estoppel is Defendant’s “successful defense of its intellectual
property, as procured by . . . representations to the USPTO[] in
patent

cases.”18

infringement

The

court

finds

nothing

in

Defendant’s alleged representations to be contrary to its assertion
that Walker caused or contributed to causing Plaintiff’s harm.
Third, regardless of Walker’s mental illness, it is undisputed
that Walker attacked Plaintiff, resulting in Plaintiff’s physical
and other injuries.

As stated above, that satisfies Defendant’s

burden at this stage.

Plaintiff asserts, without citing legal

authority, that “the person committing an intentional tort must
have the mental capacity to commit an intentional tort in order to

17

The court also notes that foreseeability is not an element of civil
assault. Although foreseeability may come into play with Plaintiff’s negligence
claim against Defendant, the issue is not relevant to the designation of Walker
as a responsible third party.
18
Doc. 98, Pl.’s Reply in Support of Mot. to Strike Designation of
Responsible 3d Party or, in the Alternative, Mot. for Partial Summ. J. p. 3 n.4.
The court notes that patent prosecutions before the USPTO are not judicial
proceedings.

8

be ‘responsible’ under Texas law.”19

The court is not willing to

read this requirement into Chapter 33, particularly when the
statute itself states that the designation of a responsible third
party or the finding of fault does not impose liability on that
person.

See Tex. Civ. Prac. & Rem. Code § 33.004(i).

The jury

will be free to consider all facts in apportioning damages.
In the alternative to striking the designation of responsible
third party, Plaintiff asks that the court grant summary judgment
that Walker is not responsible for Plaintiff’s injuries but offers
no argument pursuant to summary judgment standards.

Federal Rule

of Civil Procedure 56 allows a party to move for summary judgment
on any claim or defense.

Assault is not a claim in this action;

Walker is not a party; and the designation of a responsible third
party

is

neither

a

claim

Defendant’s liability.

of

either

party

nor

a

defense

to

The proper method and legal standards for

challenging the designation of a responsible party are clearly
outlined in Chapter 33 and discussed in the foregoing opinion.
IV.

Conclusion

Based on the foregoing, the court DENIES Plaintiff’s motion to
strike.
SIGNED in Houston, Texas, this 13th day of June, 2018.

19

______________________________
U.S. MAGISTRATE JUDGE

Id. p. 4 n.6.

9