- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Tort Law
- Date Filed: 07-10-2012
- Case #: 09-17792
- Judge(s)/Court Below: Circuit Judge O'Scannlain for the Court; Circuit Judges Schroeder and Graber
- Full Text Opinion
Michael Rosa’s parents and daughter (collectively, “Rosas”) sued TASER, the manufacturer of an electronic control device called the M26, arguing that it did not provide adequate warning of the product danger to the officers who used it, which caused Michael’s death. The claim was based on the failure to warn under California law and strict liability and negligence theories. The Rosas claimed that the M26 should include an additional warning that “repeated exposure to the M26 carries its own risks,” including fatal levels of metabolic acidosis. The district court found that “the Rosas did not establish a triable issue of fact that the risk of metabolic acidosis was known or knowable when the M26 was issued,” and awarded summary judgment to TASER. The issue on appeal “turn[ed] on what was ‘knowable’ by a manufacturer of electronic control devices in December 2003.” The Rosas argued that any discoverable risk, even unsubstantiated, was knowable by TASER. However, there is no duty to warn of “every report of a possible risk, no matter how speculative, conjectural or tentative” as it would dilute the warning of danger. The Court concluded that the four peer-reviewed articles submitted by the Rosas did not present a triable issue of fact that was more than mere speculation. The Rosas then pointed to “repeated statements by the California courts that the duties to warn under strict liability and negligence theories are not coterminous.” Although there are “three potential circumstances where negligence would provide a wider duty than strict liability, the Rosas failed to establish a triable issue of fact on any of them.” The Court concluded that the district court properly awarded summary judgment for TASER, because “the risk of lactic acidosis was not knowable in 2003” when the device was issued. AFFIRMED.