Taylor v. Taser International, Inc.
Filing
131
MEMORANDUM OPINION granting in part, denying in part 74 MOTION to Exclude Certain Plaintiff Experts and Opinions (Daubert), denying 70 MOTION to Exclude Opinion Testimony that the TASER X2 is as Effective as the TASER X26, granting in part, denying in part 76 Sealed Event (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.
§
§
§
§
§
§
§
§
§
March 29, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-673
MEMORANDUM OPINION
Pending before the court1 are: (1) Plaintiff’s Motion to
Exclude Opinion Testimony that the TASER X2 is as Effective as the
TASER X26 (Doc. 70); (2) Defendant’s Motion to Exclude Certain
Experts’ Opinions (Doc. 74); and Defendant’s Motion for Summary
Judgment (Doc. 76).2
The court has considered the motions, the
responses, the replies, and the applicable law.
For the reasons
set forth below, the court DENIES Plaintiff’s motion to exclude and
GRANTS IN PART AND DENIES IN PART Defendant’s motion to exclude.
The court GRANTS IN PART AND DENIES IN PART Defendant’s Motion for
Summary Judgment.
I.
Plaintiff
filed this
Case Background
products-liability
action
against
a
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
Also pending is Defendant’s redacted version of the motion for
summary judgment (Doc. 77), which is identical in substance to the sealed motion
for summary judgment. Therefore, in accordance with the ruling expressed herein,
that motion is GRANTED IN PART AND DENIED IN PART.
company that supplied the Houston Police Department (“HPD”) with
Conducted Electrical Weapons (“CEWs”),3 alleging that Plaintiff
suffered injuries in an assault by a suspect when the CEW Plaintiff
was using failed to subdue the individual.4
A.
Factual History
The parties submitted statements of facts and filed responses
and replies thereto.
The court relies on all of those briefs to
craft the following sections on undisputed facts and disputed facts
and inferences.
1.
Undisputed Facts
From 2003 to 2014, Defendant produced the TASER X26E CEW
(“X26E”).5
In September 2013, Defendant and the City of Houston
entered into a contract for the sale of the newer TASER X2 CEWs
(“X2s”) for the city’s police force over a five-year period at a
purchase price of more than $8 million.6
The underlying email
quote included a statement on warranties with the following heading
3
CEWs are known by several other names: Electronic Control Devices,
Conducted Energy Devices, and Electronic Control Weapons. See Doc. 71, Def.’s
Statement of Facts in Support of Mot. for Summ. J. & Daubert Mot. (“Def.’s
Statement of Facts”) p. 4 n.3.
4
See Doc. 1, Pl.’s Orig. Compl.
5
See Doc. 71, Def.’s Statement of Facts ¶ 22; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts in Support of Mot. for Summ. J. & Daubert Mot. (“Pl.’s
Resp. to Def.’s Statement of Facts”) p. 7.
The record evidence refers to the X26E and the TASER X26 CEW (“X26”). It
is unclear whether those are one and the same model. To avoid confusion, where
the record specifically refers to the X26E, the court does so as well.
6
See Doc. 71, Def.’s Statement of Facts ¶ 8; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 4.
2
in bold typeface as here: “Warranty; Exclusions and Limitations;
Release,” which stated in part, “TASER specifically disclaims any
and
all
statutory
or
implied
warranties,
including
without
limitation, warranties of merchantability, design fitness for a
particular purpose . . . .”7
An attachment to the email included
a similar warranty in bold typeface that disclaimed the implied
warranties of merchantability and fitness for a particular purpose,
among others.8
That same month, Defendant shipped the first 2,188 X2s and
related accessories, valued at $2.8 million.9
Plaintiff received
an individually boxed X2 from that shipment; it is the CEW at issue
in this case.10
The box in which Plaintiff’s X2 was packaged also contained
Defendant’s “Warranty, Limitations and Release - Law Enforcement
Products,” which read in bold typeface:
TASER specifically disclaims any and all statutory or
implied
warranties,
including
without
limitation,
warranties of merchantability, design, fitness for a
particular purpose, arising from a course of dealing,
usage or trade practice, warranties against hidden or
latent
defects,
and
warranties
against
patent
7
Doc. 71, Def.’s Statement of Facts ¶ 11; see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 4.
8
See Doc. 71, Def.’s Statement of Facts ¶ 11; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 4.
9
See Doc. 71, Def.’s Statement of Facts ¶ 8; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 4.
10
See Doc. 71, Def.’s Statement of Facts ¶¶ 8, 24; Doc. 83, Pl.’s Resp.
to Def.’s Statement of Facts pp. 4, 7.
3
infringement. If statutory or implied warranties cannot
be lawfully disclaimed, then all such warranties are
limited to the duration of the express warranty described
above and limited by the other provisions contained in
this warranty document.11
According to its specifications, the X2’s electrical output
consisted of the following:
(1) pulse duration: 50-125 microseconds . . .[;] (2) peak
loaded voltage: 840-1440 volts[;] (3) pulse rate: 19 ± 1
pulses per second[;] (4) full pulse charge: 63 ± 9
microcoulombs . . .[;] and [(5)] current: 1.2
milliamperes.12
The
X2
was
“designed
to
use
electrical
impulses
to
cause
stimulation of both the sensory and motor nerves [“called NeuroMuscular Incapacitation” (“NMI”)] to temporarily incapacitate a
target.”13
The discharge cycle upon pulling and releasing the
trigger the first time lasts five seconds.14
The X2 has options of
re-energizing the deployed probes for another five seconds or
deploying of a second pair of probes.15
The X2 is also equipped
with “data download capabilities that record the date, time, and
11
Doc. 71, Def.’s Statement of Facts ¶ 10; see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 4.
12
Doc. 71, Def.’s Statement of Facts ¶ 12; see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 4.
13
Doc. 71, Def.’s Statement of Facts ¶ 14; see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 5.
14
See Doc. 71, Def.’s Statement of Facts ¶ 18; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 5.
15
See Doc. 71, Def.’s Statement of Facts ¶ 18; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 5.
4
duration of each CEW activation.”16
In May 2008, Plaintiff was hired by HPD as a patrol officer.17
While on duty on October 8, 2015, Plaintiff was in a physical fight
with Florence Walker (“Walker”).18 During the encounter, Plaintiff
physically struggled with Walker and, due to their proximity, was
unable to deploy her X2 or her baton at that time.19
In an attempt
to create space between them, Plaintiff struck Walker in the upper
torso, but Walker grabbed Plaintiff and tried to bite her.20
Plaintiff attempted another hand strike to Walker’s upper torso,
but Walker ducked, and Plaintiff struck Walker “solidly on top of
her forehead,” causing Plaintiff “a large amount of [hand] pain and
discomfort.”21
Walker fell, and Plaintiff armed her X2.22
As Walker stood up
and lunged toward Plaintiff, Plaintiff deployed the X2 into the
16
Doc. 71, Def.’s Statement of Facts ¶ 19; see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 5.
17
Doc. 71, Def.’s Statement of Facts ¶ 1.
18
See Doc. 88, Pl.’s Resp. in Opp. to Def.’s Mot. for Summ. J. (“Pl.’s
Statement of Facts”) ¶ 1; Doc. 102, Def.’s Resp. & Objs. to Pl.’s Statement of
Undisputed Material Facts (“Def.’s Resp. to Pl.’s Statement of Facts”), Resp. to
¶ 1.
19
See Doc. 71, Def.’s Statement of Facts ¶ 33; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
20
See Doc. 71, Def.’s Statement of Facts ¶ 33; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
21
Doc. 71, Def.’s Statement of Facts ¶ 34 (quoting Doc. 72-1, Ex. 1 to
Def.’s Statement of Facts, Pl.’s Incident Report p. 2); see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 7.
22
See Doc. 71, Def.’s Statement of Facts ¶ 34; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
5
center of Walker’s torso.23 Walker “became rigid and fell over onto
the concrete” and hit her face causing her mouth to bleed.24
Plaintiff believed, at the time, that this deployment was effective
for the full five-second cycle.25
Walker stood up and shouted that
she was going to kill Plaintiff, after which Plaintiff deployed her
X2 a second time, hitting Walker “center mass.”26
immediately” pulled out the probes.27
Walker “almost
Plaintiff unsuccessfully
attempted to re-energize the deployed probes.28
Thereafter,
Walker
encountered
a
witness,
Raymond
Davis
(“Davis”). The details of the encounter are disputed and discussed
in
the
next
encountering
section.
Davis,
ran
Plaintiff
into
barricaded herself inside.29
the
chased
bathroom
Walker
at
the
who,
after
store
and
When other officers arrived, they
23
See Doc. 71, Def.’s Statement of Facts ¶ 34; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
24
Doc. 71, Def.’s Statement of Facts ¶ 34 (quoting Doc. 72-1, Ex. 1 to
Def.’s Statement of Facts, Pl.’s Incident Report p. 2); see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 7.
25
See Doc. 71, Def.’s Statement of Facts ¶ 35; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
26
See Doc. 71, Def.’s Statement of Facts ¶ 37 (quoting Doc. 72-1, Ex.
1 to Def.’s Statement of Facts, Pl.’s Incident Report p. 2); see also Doc. 83,
Pl.’s Resp. to Def.’s Statement of Facts p. 7.
27
Doc. 71, Def.’s Statement of Facts ¶ 37 (quoting Doc. 72-2, Ex. 2 to
Def.’s Statement of Facts, Dep. of Pl. p. 150); see also Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
28
See Doc. 71, Def.’s Statement of Facts ¶ 38; see also Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 7.
29
See Doc. 71, Def.’s Statement of Facts ¶ 38; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7.
6
eventually were able to secure Walker.30
At the scene, Plaintiff was treated only for a hand injury and
did not indicate in her incident report that she suffered a back
injury.31
Two weeks later, Plaintiff also complained of a back
injury and sought treatment.32
2.
Disputed Facts and Inferences
In at least three material areas, as outlined by the parties
in
their
statements
of
facts,
the
facts
or
the
inferences
reasonably drawn from those facts are in dispute: (1) comparative
effectiveness between the X2 and other models; (2) the timeline
vis-à-vis Plaintiff’s deployment of the X2; and (3) the cause of
Plaintiff’s back injury.
The court recounts those disputes.
One officer on the scene stated that Plaintiff told him that
her X2 did not work, and another officer on the scene said that
Plaintiff
was
upset
about
the
X2’s
performance.33
Defendant
disputes that these were accurate portrayals of the officers’
30
See Doc. 71, Def.’s Statement of Facts ¶ 38; Doc. 83, Pl.’s Resp. to
Def.’s Statement of Facts p. 7; Doc. 88, Pl.’s Statement of Facts ¶¶ 21, 29; Doc.
102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶¶ 21, 29.
31
See Doc. 71, Def.’s Statement of Facts ¶ 39; Doc. 72-1, Ex. 1 to
Def.’s Statement of Facts, Pl.’s Incident Report; Doc. 83, Pl.’s Resp. to Def.’s
Statement of Facts p. 7; Doc. 88, Pl.’s Statement of Facts ¶ 2; Doc. 102, Def.’s
Resp. to Pl.’s Statement of Facts, Resp. to ¶ 2.
32
See Doc. 71, Def.’s Statement of Facts ¶¶ 39, 53; Doc. 83, Pl.’s
Resp. to Def.’s Statement of Facts p. 7; Doc. 88, Pl.’s Statement of Facts ¶ 2;
Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶ 2.
33
See Doc. 88, Pl.’s Statement of Facts ¶¶ 11-12.
7
statements.34
The main phase charge of a CEW is “the single most important
electrical parameter” and is important in determining its ability
to cause NMI.35
The earlier model X26E had a main phase charge of
approximately 100 microcoulombs.36
Although Defendant does not
dispute the accuracy of the TASER X26 CEW’s (“X26”) main phase
charge; Defendant states that charge is not the only significant
factor and that the X26 and other older-generation CEWs had a
different waveform than the X2 and lacked charge metering.37
Defendant also markets a consumer CEW, the TASER Pulse, that
has a charge of ninety microcoulombs and uses the same type of
circuit as the X2.38
Defendant disputes that the X2 and the Pulse
have the same circuits and waveforms.39
Plaintiff offers a timeline of events based on the HPD data
download report from the X2, which indicated that Plaintiff’s first
trigger pull occurred at 12:46 p.m.40
34
Harmonizing this time stamp
See Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶¶
11-12.
35
Doc. 88, Pl.’s Statement of Facts ¶ 37 (quoting Doc. 88-8, Ex. H to
Pl.’s Statement of Facts, Dep. of Bryan Chiles pp. 15-16); see also id. ¶ 31.
36
See Doc. 88, Pl.’s Statement of Facts ¶ 31.
37
See Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶
38
See Doc. 88, Pl.’s Statement of Facts ¶ 35.
39
See Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶
40
See Doc. 88, Pl.’s Statement of Facts ¶ 13.
31.
35.
8
with the time of her call for assistance at 12:51 while she was
heard physically engaging Walker, Plaintiff raises an inference
that she and Walker fought after the first deployment of the X2.41
Defendant, however, produced evidence that the weapon’s internal
clock was running five minutes and eleven seconds slow, meaning
that
Plaintiff’s
call
for
help
while
struggling
with
Walker
occurred nearly contemporaneously with her first trigger pull.42
Davis, the witness, reported that after Walker fell and hit
her head, she jumped up immediately and ran to him.43
Davis said
that Walker hugged him for a “long time” before Plaintiff pulled
Walker away.44
Defendant disputes that the witness said Walker
jumped up immediately and disputes any insinuation that the first
deployment did not incapacitate Walker for the full five seconds.45
Defendant also disputes any suggestion that fighting occurred after
the first deployment because, in addition to saying that Plaintiff
pulled Walker away, Davis also said that he was “positive” no
fighting occurred after Walker jumped back up.46
Defendant also
41
See Doc. 88, Pl.’s Statement of Facts ¶¶ 13, 16, 20; Doc. 102, Def.’s
Resp. to Pl.’s Statement of Facts, Resp. to ¶¶ 13, 16, 20.
42
See Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶
43
See Doc. 88, Pl.’s Statement of Facts ¶¶ 7-8.
13.
44
Doc. 88-4, Ex. D to Pl.’s Statement of Facts, Dep. of Raymond Davis
p. 47; see also Doc. 88, Pl.’s Statement of Facts ¶ 9.
45
See Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶¶
46
Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶ 9.
7-8.
9
points to Plaintiff’s incident report that did not describe any
physical contact with Walker after the first deployment, but
Plaintiff has since recalled the incident differently.47
Although Plaintiff did not initially claim a back injury,
Sergeant Richard Reyna (“Reyna”) testified that he was “aware
during [his] time as a Houston police officer where someone ha[d]
been injured in a course of a fight and [did] not realize the full
extent of their injuries on the . . . day of the fight.”48
Defendant
disputes
that
Reyna’s
deposition
response
could
be
understood to mean that such a phenomenon was “common,” a word
Plaintiff interjected into the deposition testimony.49
Officer
Darrell
to
Williams
(“Williams”)
testified,
in
response
the
question whether he recalled Plaintiff mentioning a back injury at
the time of the altercation, that “Police are typically more
concerned about knives and guns; and, you know, if you’re alive and
you’re not stabbed or shot, you know, it’s a good day.”50 Defendant
disputes Plaintiff’s embellishment of Williams’s statement that he
was “not surprised” Plaintiff did not report her back injury on the
47
See Doc. 71, Def.’s Statement of Facts ¶ 41.
48
Doc. 88-2, Ex. B to Pl.’s Statement of Facts, Dep. of Reyna p. 85;
see also Doc. 88, Pl.’s Statement of Facts ¶ 4.
49
Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶ 4; see
also Doc. 88, Pl.’s Statement of Facts ¶ 4.
50
Doc. 88, Pl.’s Statement of Facts ¶ 4 (quoting Doc. 83-7, Ex. G to
Pl.’s Resp. to Def.’s Statement of Facts, Dep. of Williams p. 24).
10
day of the fight with Walker.51
A physician who performed a physical examination of Plaintiff
pursuant to the Federal Rules of Civil Procedure 35 testified, that
Plaintiff’s back injury was “what’s called a lumbar radiculopathy”
that, hypothetically, could have resulted from a rotational injury
caused by a physical
fight with another person.52
Defendant
disputes that this amounts to a causation opinion that Plaintiff’s
back injury resulted from her altercation with Walker.53
B.
Procedural History
On March 2, 2017, Plaintiff filed this lawsuit, asserting
claims of negligence in the manufacturing of the X2, strict tort
liability in the designing and marketing of the X2, breaches of the
express warranty and the implied warranties of merchantability and
suitability related to the X2’s effectiveness, and violations of
the Texas Deceptive Trade Practices Act54 (“DTPA”) through false,
deceptive, and misleading representations and failure to disclose
51
Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶ 5; see
also Doc. 88, Pl.’s Statement of Facts ¶¶ 5, 27; Doc. 102, Def.’s Resp. to Pl.’s
Statement of Facts, Resp. to ¶ 27.
52
Doc. 87-15, Ex. O to Pl.’s Opp. to Def.’s Consolidated Daubert Mot.
to Exclude Certain Pl.’s Experts & Ops. (“Pl.’s Resp. to Def.’s Mot. to
Exclude”), Dep. of Andrew Kant (“Kant”) pp. 23-24; see also Doc. 88, Pl.’s
Statement of Facts ¶ 3.
53
See Doc. 102, Def.’s Resp. to Pl.’s Statement of Facts, Resp. to ¶
54
Tex. Bus. & Com. Code §§ 17.41-17.63.
3.
11
material information.55
Plaintiff sought compensatory damages for
physical
anguish,
pain,
mental
lost
wages,
loss
of
earning
capacity, physical impairment, medical-care expenses, out-of-pocket
economic loss, enhanced statutory damages, costs, attorneys’ fees,
and pre- and post-judgment interest.56
On July 27, 2017, Plaintiff timely amended her complaint.57
Plaintiff
significantly
rewrote
and
expounded
the
factual
allegations; however, she added no additional causes of action.58
In addition to the relief requested in her original complaint,
Plaintiff sought exemplary damages.59
On
portions
August
of
17,
2017,
Plaintiff’s
Defendant
amended
filed
a
complaint,
motion
to
arguing
strike
that
they
contained “immaterial, inflammatory and superfluous statements that
have nothing to do with Plaintiff’s claims, and are solely intended
to improperly cast TASER in a derogatory light and try this case in
the
media.”60
Defendant
simultaneously
counterclaim to the amended complaint.61
55
filed
an
answer
and
On October 31, 2017, the
See Doc. 1, Pl.’s Orig. Compl. pp. 6-8; Doc. 24, Pl.’s 1 st Am. Compl.
pp. 17-24.
56
See Doc. 1, Pl.’s Orig. Compl. pp. 8-9.
57
See Doc. 24, Pl.’s 1 st Am. Compl.
58
See id.
59
See id. pp. 24-26.
60
Doc. 32, Def.’s Mot. to Strike Portions of Pl.’s 1 st Am. Compl. p.
61
See Doc. 33, Def.’s Ans. & Countercl. to 1 st Am. Compl.
1.
12
court denied Defendant’s motion to strike, and, on November 17,
2017, Defendant filed an amended answer and counterclaim.62
amended
answer,
Defendant
asserted
forty-one
In the
defenses
and
affirmative defenses.63 Defendant’s “counterclaim” consisted solely
of a request for the award of “court costs and reasonable and
necessary attorneys’ fees” under the provisions of the DTPA, based
on the assertion that Plaintiff’s claims “are groundless in fact or
law,
brought
in
bad
faith,
or
brought
for
the
purpose
of
harassment.”64
In
April
2018,
following
a
period
of discovery
and
the
exchange of reports by the designated experts, each party filed a
motion to exclude certain expert testimony of the other side.65
Defendant also filed a motion for summary judgment.66
All of these
motions are fully briefed.
II.
Motions to Exclude
Plaintiff filed a motion to exclude the opinion expressed by
three of Defendant’s experts that the X2 is as effective as the X26
62
See Doc. 44, Ord.
Countercl. to 1 st Am. Compl.
Dated Oct.
31,
2017;
Doc.
47,
Def.’s
Ans.
&
63
See Doc. 47, Def.’s Ans. & Countercl. to 1 st Am. Compl. pp. 41-47.
64
Id. p. 47.
65
See Doc. 70, Pl.’s Mot. to Exclude Op. Test. that the Taser X2 is as
Effective as the Taser X26 (“Pl.’s Mot. to Exclude”); Doc. 74, Def.’s Mot. to
Exclude Certain Experts’ Ops. (“Def.’s Mot. to Exclude”).
66
See Doc. 76, Def.’s Mot. for Summ. J.
13
at stopping suspects.67 Defendant filed a motion to exclude certain
opinions by three of Plaintiff’s experts, specifically, opinions
regarding the X2, medical and electrical engineering conclusions
about
its
effectiveness,
and
medical
causation
related
to
Plaintiff’s back injury.
A.
Legal Standard
Under the Federal Rules of Evidence and related case law, an
expert may be qualified by “knowledge, skill, experience, training,
or education.”
Fed. R. Evid. 702.
“[T]o qualify as an expert, the
witness must have such knowledge or experience in his field or
calling to make it appear that his opinion or inference will
probably aid the trier in his search for truth.”
United States v.
Hicks, 389 F.3d 514, 524 (5th Cir. 2004)(internal quotation and
alteration marks omitted)(quoting United States v. Bourgeois, 950
F.2d 980, 987 (5th Cir. 1992)).
If an opinion is based solely or primarily on experience, it
“must be grounded in an accepted body of learning or experience in
the expert’s field.” Fed. R. Evid. 702, advisory committee’s note,
2000 Amends.
The witness must connect the experience to the
conclusion offered, must explain why the experience is a sufficient
basis for the opinion, and must demonstrate the appropriateness of
the application of the experience to the facts.
67
Id.
Although an
To the extent Plaintiff is asking the court to disallow lay testimony
on this issue, the court declines to entertain that request at this time and will
address it at the pretrial conference if filed in the form of a motion in limine.
14
expert need not be highly qualified to testify on a given topic,
his testimony on subjects in which he is not qualified must be
Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
excluded.
The expert’s testimony must be both relevant and reliable.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Smith v.
Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007); see
also Fed. R. Evid. 702 & advisory committee’s note, 2000 Amends.
The
burden
of
establishing
this
predicate
for
the
expert’s
testimony falls on the party producing the expert. Mathis v. Exxon
Corp., 302 F.3d 448, 459-60 (5th Cir. 2002).
The trial court has
the responsibility of determining whether that party has met its
burden.
Fed. R. Evid. 104(a); Mathis, 302 F.3d at 459-60.
The
trial judge has “wide latitude in determining the admissibility of
expert testimony;” yet, “the rejection of expert testimony is the
exception rather than the rule.”
Fed. R. Evid. 702, advisory
committee’s note, 2000 Amends.; Wilson v. Woods, 163 F.3d 935, 93637 (5th Cir. 1999)(quoting Watkins v. Telsmith, Inc., 121 F.3d 984,
988 (5th Cir. 1997)).
To be relevant, the testimony must assist “the trier of fact
to understand the evidence or to determine a fact in issue.”
R. Evid. 702.
Fed.
The Federal Rules of Evidence define relevant
evidence as that which “has any tendency to make a fact more or
less probable than it would be without the evidence” and “the fact
is of consequence in determining the action.”
15
Fed. R. Evid. 401.
Reliability hinges on the sufficiency of the facts or data
upon
which
the
opinion
is
based,
the
dependability
of
the
principles and methods employed, and the proper application of the
principles and methods to the facts of the case.
See Fed. R. Evid.
702. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94
(1993), the U.S. Supreme Court outlined several reliability factors
for scientific testimony: (1) whether the theory or technique has
been tested; (2) whether it has been subjected to publication and
peer review; (3) whether it has a known or potential rate of error;
and (4) whether it is generally accepted or has gained only minimal
support within the relevant community.
When the testimony is not
scientific, these factors may apply even though the focus is on
experience and personal knowledge. See Kumho Tire Co., 526 U.S. at
151.
The trial judge must make certain that the expert applied
“the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.”
Kumho Tire Co., 526
U.S. at 152.
The court’s gate-keeping responsibility is not intended to
infringe upon the adversarial process.
596
(“Vigorous
cross-examination,
Cf. Daubert, 509 U.S. at
presentation
of
contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence.”); Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d
546, 562 (5th Cir. 2004)(quoting United States v. 14.38 Acres of
16
Land, More or Less Situated in Leflore Cty., Miss., 80 F.3d 1074,
1077 (5th Cir. 1996))(“[A]s a general rule, questions relating to
the bases and sources of an expert’s opinion affect the weight to
be assigned that opinion rather than its admissibility and should
be left for the jury’s consideration.”); 14.38 Acres of Land, More
or Less Situated in Leflore Cty. Miss., 80 F.3d at 1079 (“The
perceived flaws in the testimony of [the] experts are matters
properly to be tested in the crucible of adversarial proceedings;
they are not the basis for truncating that process.”).
B.
Plaintiff’s Motion to Exclude
Plaintiff’s motion seeks to limit the testimony of three of
Defendant’s designated experts: (1) Jeffrey Ho (“Ho”), a medical
doctor who serves as Defendant’s Medical Director and who developed
the methodology and performed the testing on both the X26 and the
X2; (2) Magne Nerheim (“Nerheim”), an electrical engineer who
serves as Defendant’s Vice President of Research and Technical
Fellow; and (3) Dorin Panescu (“Panescu”), a biomedical scientist
and expert in cardiac devices.
Plaintiff “only seeks to exclude
the opinions of both Dr. Ho and Dr. Nerheim that the X2 and the X26
have equivalent (or better) effectiveness, and the similar, more
ambiguously expressed opinions of Panescu . . . regarding any
related effectiveness between the X2 and previous models.”68
Plaintiff explicitly does not question the qualifications of any of
68
Doc. 70, Pl.’s Mot. to Exclude p. 3.
17
the three to offer expert testimony in his field of expertise.
The court understands that the effectiveness of the X2 is a
fact of consequence in this case.
Without a doubt, the expert
testimony of all three of these experts is relevant in that their
opinions would help the jury determine the effectiveness of the X2
in comparison to the X26.69
Plaintiff’s challenges go to the
reliability of Defendant’s methodology for and adequacy of the
testing of the X2.
Because Ho developed the “human motivation
testing” methodology and performed the testing on the X2 and the
other two experts relied on that testing, Plaintiff argues, these
experts’ opinions “devolve merely to the ipse dixit of Dr. Ho.”70
The
court
finds
that
Defendant
has
met
its
burden
of
demonstrating that Ho’s methodology is reliable because it has been
tested, has been published and peer reviewed, has statistical
significance,
Minnesota’s
and
School
has
of
been
accepted
Medicine.
by
Based
the
on
University
that
ruling,
of
the
reliability of the opinions of Nerheim and Panescu are not tainted
by any purported reliance on Ho’s methodology.
As to Panescu, “Plaintiff additionally requests that [he] be
prohibited from referencing [American National Standards Institute,
the Crane Power Line Standards Organization (“ANSI/CPLSO”)] 17 in
his testimony unless and/or until the [c]ourt is satisfied that
69
Plaintiff does not challenge the prior testing used by Ho in testing
the X26.
70
Doc. 70, Pl.’s Mot. to Exclude p. 7.
18
this standard is a legitimate, publicly available, safety standard
that was in effect when the X2 in issue in this case was designed
and manufactured.”71
Plaintiff argues that Panescu’s opinions
concerning whether the X2 electrical output met ANSI/CPLSO 17 are
not reliable because Panescu played a role in creating ANSI/CPLSO
17.
Framing its concern as TASER’s “working behind the scenes to
create a new ‘standard’ for determining the effectiveness of CEWs,”
Plaintiff suggests a nefarious purpose without any evidence of
improper action.72
Defendant has also countered Plaintiff’s challenge to the
legitimacy of ANSI/CPLSO 17.
As a reviewer for the ANSI/CPLSO,
Panescu reviewed the standard prior to its adoption.
According to
Panescu, ANSI/CPLSO 17 is a safety standard applicable to high
voltage CEWs used by law enforcement agencies.
Panescu cited to
the CPLSO website, which provides information about the standard,
including the process by which standards are developed and general
information about the background, research, and subject matter of
the
ANSI/CPLSO
17.
By
all
appearances,
ANSI/CPLSO
17
is
a
legitimate, publicly available (albeit not free), safety standard.
Panescu cited to the 2017 version of the standard; if the standard
was created after the X2 was designed and manufactured, Plaintiff
can test its applicability to the X2 on cross-examination.
71
Id. p. 19.
72
Id. p. 8.
19
If
Defendant has not turned over a copy of the ANSI/CPLSO 17, it must
do so or show cause why it is unable to do so.
Based on Plaintiff’s motion to exclude, the court is confident
that Plaintiff’s counsel is more than capable of revealing any
flaws or shortcomings of these experts’ reports through crossexamination and the presentation of contrary evidence at trial.
None of Plaintiff’s concerns, however, warrants the exclusion of
any expert opinions as each report meets the minimum threshold for
admissibility under Daubert and its progeny.
C.
Defendant’s Motion to Exclude
Defendant’s motion seeks to limit the testimony of Mark Jones
(“Jones”), a political science professor, and Michael Leonesio
(“Leonesio”), a former police officer with “hands-on professional
experience using, testing, and forensically analyzing [electroshock
weapon (“ESW”)] performance.”73
opinions of
Cameron
Jackson
Defendant also seeks to strike the
(“Jackson”),
Plaintiff’s
treating
chiropractor.
Defendant contends that Jones does not have the training,
knowledge,
or
experience
to
offer
“medical/physiological
or
electrical engineering opinions on the effectiveness of the TASER
X2 CEW, the central design issue in this case,” including opinions
drawn from a spreadsheet listing CEW deployments by HPD personnel
between
73
January
2011
and
April
2016
that
HPD
identified
Doc. 87, Pl.’s Resp. to Def.’s Mot. to Exclude p. 12.
20
as
unsuccessful.74 Defendant also seeks to prevent Jones from offering
societal impact opinions as to what “could result if (1) the X2 is
less effective (which he has no opinion on)[] and if (2) someday
officers lose confidence in the X2 (which he has seen no evidence
of yet).”75
Plaintiff
counters that
Defendant
is
“attack[ing]
Jones’
qualifications to render opinions he does not intend to render in
this case, and thereby attempts to seed doubt as to the reliability
of the opinions that he will render, all of which are squarely
within his professional expertise and the product of his unique
experience with evaluating the City of Houston’s use of TASERs.”76
Plaintiff represents that it does not intend to ask Jones whether
the X2 has less stopping power than the X26 because “Jones is
neither a medical doctor nor an engineer and has no particular
expertise in testing ESWs or measuring their output.”77
On the
other hand, Plaintiff does intend to solicit Jones’s opinion on
“exactly what can happen in this very community if the X2 at issue
is underpowered.”78
The court agrees with the parties that Jones is not qualified
74
Doc. 74, Def.’s Mot. to Exclude p. 8; see also id. pp. 10-12.
75
Id. p. 12.
76
Doc. 87, Pl.’s Resp. to Def.’s Mot. to Exclude p. 5.
77
Id. p. 6.
78
Id. p. 5.
21
to offer opinions on any scientific aspect of the X2, including its
effectiveness and/or stopping power.
Jones’s experience with CEWs
is limited to his participation as a researcher in a 2008 audit of
X26E deployments between December 2004 and June 2007 with the
purpose of examining police behavior and the impact of CEWs.
Defendant
concedes
that
Jones
is
qualified
to
discuss
these
research findings and, therefore, does not seek to exclude that
portion of his testimony.
The
problem
area
is
Jones’s
testimony
as
to
public
policy/social utility “concerning the potential effect of arming
police
officers
with
less
powerful
TASERs.”79
As
Plaintiff
acknowledges, Jones employed that same type of analysis as used in
the
2008
audit
but
assumed
a
less
effective
weapon.
His
conclusions do not pass Daubert review for multiple reasons.
First, he does not have the extensive data that was available to
him for the 2008 audit on this “less effective weapon.”
The
spreadsheet identifying deployments that HPD labeled unsuccessful
did not include nearly the information to which Jones had access in
2008.
Additionally, the document itself is of limited value
because it lacks basic information such as what model of CEW was
used and how the deployment was unsuccessful.
Because of the lack
of information, reliable conclusions cannot be drawn and the
spreadsheet also must be excluded from evidence.
79
Id. p. 9.
22
Second, Jones’s opinions are irrelevant if not tied to the X2.
Jones is not qualified to make the determination that the X2 is
less effective than the X26E, and he does not have the factual
support for that conclusion.
Third, his opinion on the societal
impact of a less effective CEW will not help the jury reach a
decision in this particular product-liability case because no claim
is based on Plaintiff’s or any other officer’s confidence in the
X2.
Fourth, much of this portion of his testimony is not the
substance of expert opinion.
The jury is capable of reaching
logical, common-sense conclusions about what could happen if police
officers were armed with less effective CEWs and lost confidence in
their use.
Jones’s societal-impact opinions are excluded.
Regarding Leonesio’s testimony, Defendant does not seek to
exclude opinions on Plaintiff’s use of force or opinions on the
testing performed on Plaintiff’s X2 but does seek to exclude all of
Leonesio’s opinions that rely on expertise in medical and/or
electrical engineering. Without a doubt, Leonesio is not qualified
to offer opinions in those areas of expertise.
Plaintiff agrees.
The difference lies in what the two sides view as falling in that
prohibited area of testimony.
Although Leonesio has years of
experience using and testing CEWs, he cannot serve as an expert on
ultimately scientific topics, such as incapacitation performance,
and he cannot formulate his own scientific opinions based on the
medical or engineering work or opinions of others.
23
If Plaintiff
wants to rely on the work or opinions of others, she will need to
find another way to get that into evidence.
The court recognizes
that the line between the subjects on which Leonesio may opine and
those he may not is less than clear-cut and may require more
specific rulings pretrial or from the bench.
Finally, Defendant moves to exclude the opinions of Jackson as
improperly disclosed and unreliable.
As Plaintiff’s treating
physician, who was not retained or specially employed to offer
expert testimony, he was not required to provide a written report.
See Fed. R. Civ. P. 26(2)(B).
The court finds that Plaintiff
complied with the disclosure requirements. Additionally, the court
will allow Jackson to testify as to causation regarding Plaintiff’s
back injury based on his treatment of Plaintiff.
Defendant may
raise all of its concerns in cross-examination.
III.
Motion for Summary Judgment
Defendant’s motion for summary judgment seeks judgment in its
favor on all of Plaintiff’s claims.
Before
addressing
the
merits
of
Defendant’s
dispositive
motion, the court turns to the parties’ objections to each other’s
statement of facts.
Except for including the date on which HPD
employed Plaintiff, the court did not rely on any of the evidence
to which either party objected as irrelevant or hearsay.
objections to evidence are OVERRULED.
Plaintiff’s objection to
Defendant’s sealing and redacting its filings is OVERRULED.
24
All
Additionally, Defendant seeks a spoliation instruction related
to
Plaintiff’s
self-serving
statements
about
post-deployment
fighting that contradict her incident report and other prior
statements.
Plaintiff failed to disclose a second witness, a tow-
truck driver who intervened to assist Plaintiff and who could
provide testimony on this topic.
so “to do him a solid.”80
Plaintiff explained that she did
According to Defendant, Plaintiff
contacted the driver when she was contemplating legal action, and
the driver refused to provide an affidavit.
Defendant contends
that her failure to disclose him in this case “arguably constitutes
perjury” but “certainly sanctionable discovery misconduct.”81
The spoliation doctrine allows a jury to draw an inference
“that a party who intentionally destroy[ed] important evidence in
bad faith did so because the contents of those documents were
unfavorable to that party.”
Whitt v. Stephens Cty., 529 F.3d 278,
284 (5th Cir. 2008)(quoting Russell v. Univ. of Tex., 234 F. App’x
195, 207 (5th Cir. 2007)(unpublished)).
In order for the court to
permit a spoliation inference, the moving party must show bad faith
or bad conduct in relation to the destruction of evidence. Condrey
v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005).
Despite the accusation, Defendant fails to point the court to
actual
evidence
of
bad
faith
or
bad
conduct,
80
as
opposed
to
Doc. 71, Def.’s Statement of Facts ¶ 45 (quoting Doc. 72-22, Ex. 21
to Def.’s Statement of Facts, Pl.’s Facebook Posts p. 3730).
81
Doc. 76, Def.’s Mot. for Summ. J. p. 17.
25
suspicious motivations and appearances of impropriety. Plaintiff’s
actions were perhaps bad judgment and improper under HPD policies,
but they occurred prior to the filing of this lawsuit and do not
manifest bad faith or bad conduct.
At the point that Plaintiff
contemplated legal action, she attempted to include the tow-truck
driver as a witness when she asked him to provide an affidavit.
Absent evidence of bad faith, an adverse inference or any other
sanction for spoliation is not warranted.
The court finds summary
judgment in Defendant’s favor an inappropriate sanction in light of
the evidence as a whole.
Plaintiff’s self-serving statements are
not the only evidence of post-deployment fighting.
A.
Legal Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014). A material
fact is a fact that is identified by applicable substantive law as
critical to the outcome of the suit.
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v.
Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001).
To be
genuine, the dispute regarding a material fact must be supported by
evidence such that a reasonable jury could resolve the issue in
favor of either party.
See Royal v. CCC & R Tres Arboles, L.L.C.,
26
736 F.3d 396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at
248).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues.
Celotex
Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th
Cir. 1992).
If the movant carries its burden, the nonmovant may
not rest on the allegations or denials in the pleading but must
respond with evidence showing a genuine factual dispute. Stauffer,
741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir.
2007)).
The
court
must
accept
all
of
the
nonmovant’s
uncontroverted evidence as true and draw all justifiable inferences
in her favor.
Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank,
N.A., 759 F.3d 498, 505 (5th Cir. 2014)(quoting Anderson, 477 U.S.
at 255).
B.
Discussion
With
negligence
regard
and
to
Plaintiff’s
strict
tort
products-liability
liability,
Defendant
claims
argues
of
that
Plaintiff has failed to produce evidence supporting her position on
the “only two things this [c]ourt needs to decide:” (1) whether the
X2 was underpowered as designed; and (2) whether Plaintiff and
Walker engaged in any post-deployment “fighting to support a causal
27
link between the X2 CEW and Plaintiff’s alleged back injury.”82
Additionally, Defendant argues that it disclaimed all implied
warranties and that, among other arguments, Plaintiff produced no
evidence that she relied on any express warranty.
Regarding the
DTPA claim, Defendant contends that the transaction in issue was
statutorily exempt.
1.
Negligence and Strict Tort Liability
The
only
challenges
to
these
claims
are
factual
ones.
Restating Defendant’s arguments, the court must determine whether
Plaintiff
has
produced
evidence
that
the
X2
was
underpowered/ineffective, particularly in comparison with the X26
and/or the Pulse, and that its ineffectiveness caused Plaintiff’s
back injury.
As the parties agree that these factual issues are
material, the court’s duty in this regard is to determine whether
Plaintiff has produced sufficient evidence to raise a genuine
dispute.
The court is bound by legal precedent to draw all
justifiable
inferences
in
Plaintiff’s
favor.
As
perhaps
foreshadowed by the court’s identification of disputed facts and
inferences
in
a
prior
section
of
this
memorandum,
the
court
determines that Plaintiff’s evidence raises genuine disputes as to
both of these factual issues, albeit by the slimmest of margins.
Regarding the X2’s effectiveness, Plaintiff primarily focuses
on evidence of the comparative full pulse charges.
82
Doc. 76, Def.’s Mot. for Summ. J. p. 10.
28
The evidence
supports her position that the full pulse charge is lower than the
electrical output by either the X26 or the Pulse.
Defendant
concedes the full pulse charge is one factor in determining power
and effectiveness, but produces evidence that it is not the only
relevant measurement.
As
to
the
X2’s
performance
on
that
particular
day, the
evidence is conflicting on how long Walker was incapacitated.
Plaintiff
points
to
witness
testimony
immediately after deployment of the X2.
that
Walker
got
up
Defendant’s evidence
suggests that Walker was incapacitated for the full five-second
cycle.
The court is not at liberty to make that determination.
The timeline vis-à-vis deployment of the X2 and the fighting
is
one
aspect
deployment,
of
causation.
Plaintiff’s
If
back
no
injury
fighting
was
not
occurred
caused
after
by
the
(in)effectiveness of the X2. Plaintiff’s theory of the timeline of
the first trigger pull and physical engagement with Walker is
supported by the data download from the X26.
Defendant contends
that the X26 needed to be synchronized to the correct time before
creating a timeline. The court cannot simply take Defendant at its
word that the X26’s internal clock does not keep accurate time.
Moreover, Davis’s testimony does not provide clarification in that
he recalled that Walker jumped up and ran to him after the first
deployment
had
caused
her
to
fall
and
hit
her
face
and,
subsequently, Plaintiff physically pulled Walker off of him. Thus,
29
even though he reported that no fighting occurred after Walker ran
to him, he did report that Plaintiff engaged Walker physically
after
deployment
of
the
X2.
In
light
of
the
evidence
of
conflicting timelines, the jury must decide which is accurate.
The other aspect of causation is whether the contact with
Walker caused Plaintiff’s back injury.
Plaintiff’s expert and the
Federal Rules of Civil Procedure 35 physician both stated that such
an injury could result from a physical altercation such as that
between Plaintiff and Walker.
But neither said so definitively.
This evidence may be thin, but the court cannot resolve that
factual dispute either.
This is not a case where the plaintiff failed to produce any
evidence; rather, this is a case where the amount, weight, and
credibility of the evidence is at issue.
that
the
evidence
in
this
case
is
The court acknowledges
plagued
by
Plaintiff’s
purportedly poor recollection and changes in her account of the
incident, however these are credibility issues. The jury will have
to listen to all of the evidence and decide whom to believe.
Here,
the justifiable inferences could lead a reasonable jury to the
conclusion that Plaintiff and Walker engaged in hand-to-hand combat
after Plaintiff deployed the X2 and that Plaintiff’s back injury
resulted from that fight.
Plaintiff has met her summary judgment burden.
30
2.
Breach of Warranties
Reliance is an element of a claim for breach of an express
warranty.
See Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686
n.23 (Tex. 2002)(citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 436 (Tex. 1997), superseded by statute on other grounds.
Defendant
challenges
Plaintiff’s
evidence
of
reliance.
In
response, Plaintiff does not address Defendant’s arguments or point
to evidence of reliance.
abandoned that claim.
The court is left to assume Plaintiff
Regardless, absent evidence of reliance,
Defendant is entitled to summary judgment in its favor.
The implied warranties of merchantability and fitness may be
disclaimed.
See Tex. Bus. & Com. Code § 2.316(b).
To disclaim an
implied warranty of merchantability, the language must mention
merchantability
and,
if
written,
must
be conspicuous.
Id.
Disclaimer of an implied warranty of fitness is effective if in
writing and conspicuous.
See id.
The court decides as a matter of
law whether the disclaimer is conspicuous.
See Womco, Inc. v.
Navistar Int’l Corp., 84 S.W.3d 272, 279 (Tex. App.—Tyler 2002, no
pet.)(citing Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990).
Disclaimer of an implied warranty is an affirmative defense.
MAN
Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136 (Tex.
2014).
In this case, Defendant provided HPD with a copy of its
limited warranty with the quote and also placed a copy of the
31
limited warranty in each X2 box.
It is undisputed that Plaintiff
received the X2 assigned to her in the box with the warranty.
In
both places, the limited warranty was in bold typeface, making it
conspicuous.83 The limited warranty specifically disclaimed implied
warranties of merchantability and fitness.
These presentations of
Defendant’s disclaimer of the implied warranties of merchantability
and
fitness
Defendant
met
the
requirements
successfully established
of
its
Texas
law.
affirmative
Therefore,
defense
of
disclaimer as a matter of law.
3.
DTPA
The DTPA exempts from its coverage any “cause of action
arising from a transaction, a project, or a set of transactions
relating to the same project, involving total consideration by the
consumer of more than $500,000.” Tex. Bus. & Com. Code § 17.49(g).
It is undisputed that the contract between Defendant and HPD
for the sale of the X2’s far exceeded that amount.
Plaintiff
responds with largely irrelevant generalizations about the purpose
of
the
DTPA
in
protecting
consumers
from
deceptive
business
practices. Plaintiff argues that the contract was between the City
of Houston and Defendant, not Plaintiff and Defendant.
The court
does not find that argument helpful to Plaintiff’s cause because it
calls
into
question
the
already
questionable
assertion
that
83
Without citation to legal authority, Plaintiff argues that Defendant
points to no evidence that she ever saw the limited warranty and, thus, cannot
prove that it was conspicuous to her. The court finds no legal support for this
argument.
32
Plaintiff is a DTPA consumer.
See Tex. Bus. & Com. Code §
17.45(4)(defining “consumer” to mean “an individual, partnership,
corporation, this state, or a subdivision or agency of this state
who
seeks
or
acquires
by
purchase
or
lease,
any
goods
or
services”)(emphasis added).
Relying on Neese v. Lyon, 479 S.W.3d 368 (Tex. App.—Dallas
2015, no pet.), Plaintiff goes further, arguing that even if “the
[c]ourt must attribute the cost of the X2 to the end consumer, the
total unit price for [Plaintiff’s] individual X2 is $950.”84
court disagrees.
This
The Neese case involved individuals who sued
attorneys and a private investigator for engaging in barratry by
soliciting them as clients for a personal injury lawsuit.
at 374.
they
See id.
Although all individuals were plaintiffs in one lawsuit,
were
recruited
representation
consideration
separately
separately.
paid
for
and
engaged
Id.
the
Collectively,
representation
exceeded
law
firm’s
the
$500,000,
total
but,
individually, each plaintiff’s consideration for representation was
less than $500,000.
Id. at 392.
The court stated, without
elaborating on its findings, “The text of § 17.49(g) supports the
. . . argument that the $500,000 cap must be applied on an
individual-consumer basis.”
Id.
That case is not factually analogous, and that court’s legal
justification therein is limited although it appears to rely on a
84
Doc. 89, Pl.’s Resp. to Def.’s Mot. for Summ. J. p. 23.
33
finding that the transactions, in other words, the representation
agreements
were
not
sufficiently
related
to
combine
the
consideration for purposes of the DTPA exemption.
In contrast, the purchase of numerous X2s by HPD pursuant to
one contract that far exceeded the $500,000 limit clearly fits
within the exemption’s reach.
Accordingly, Defendant met its
burden of proof that it is entitled to summary judgment in its
favor on Plaintiff’s DTPA claim.
IV.
Conclusion
Based on the foregoing, the court DENIES Plaintiff’s motion to
exclude and GRANTS IN PART AND DENIES IN PART Defendant’s motion to
exclude.
The court GRANTS IN PART AND DENIES IN PART Defendant’s
Motion for Summary Judgment.
SIGNED in Houston, Texas, this 29th day of March, 2019.
______________________________
U.S. MAGISTRATE JUDGE
34
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