Mitchell v. City of Warren, 082115 FED6, 14-2075

Docket Nº:14-2075
Opinion Judge:SUTTON, Circuit Judge.
Party Name:Cora Mitchell, Plaintiff-Appellant, v. City of Warren, et al., Defendants, Taser International, Inc., Defendant-Appellee.
Attorney:John Burton, THE LAW OFFICES OF JOHN BURTON, Pasadena, California, for Appellant. Pamela B. Petersen, TASER INTERNATIONAL, INC., Scottsdale, Arizona, for Appellee. John Burton, THE LAW OFFICES OF JOHN BURTON, Pasadena, California, William H. Goodman, Julie H. Hurwitz, Kathryn Bruner James, GOODMA...
Judge Panel:Before: NORRIS, SUTTON, and DONALD, Circuit Judges. BERNICE BOUIE DONALD, concurring in part and dissenting in part.
Case Date:August 21, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Cora Mitchell, Plaintiff-Appellant,


City of Warren, et al., Defendants,

Taser International, Inc., Defendant-Appellee.

No. 14-2075

United States Court of Appeals, Sixth Circuit

August 21, 2015

Argued: April 30, 2015

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:09-cv-11480 John Corbett O'Meara, District Judge.


John Burton, THE LAW OFFICES OF JOHN BURTON, Pasadena, California, for Appellant.

Pamela B. Petersen, TASER INTERNATIONAL, INC., Scottsdale, Arizona, for Appellee.


John Burton, THE LAW OFFICES OF JOHN BURTON, Pasadena, California, William H. Goodman, Julie H. Hurwitz, Kathryn Bruner James, GOODMAN & HURWITZ, P.C., Detroit, Michigan, Byron H. Pitts, CORNELIUS PITTS & ASSOCIATES, Detroit, Michigan, for Appellant.

Pamela B. Petersen, TASER INTERNATIONAL, INC., Scottsdale, Arizona, for Appellee.

Before: NORRIS, SUTTON, and DONALD, Circuit Judges.


SUTTON, Circuit Judge.

After Robert Mitchell resisted arrest by the police, an officer shot two taser darts into his chest. Robert experienced cardiac arrest and died shortly after. His mother filed this lawsuit in response. It proceeded in two phases-first against the individual police officers and the City of Warren, then against the weapon's manufacturer, Taser International, Inc. The parties settled the claims against the police officers and the City. The other claims are the subject of this appeal. Below, the district court granted summary judgment to Taser, rejecting the plaintiff's failure-to-warn and negligence claims as a matter of law. We affirm.


On the morning of April 10, 2009, Jesse Lapham, an officer with the City of Warren Police Department, responded to a call for backup at an abandoned house near Eight Mile Road. As explained by the radio dispatcher, one of Lapham's fellow Warren police officers had stopped a car with expired tags when one of the passengers-16-year-old Robert Mitchell-ran from the car, broke into an abandoned house, and hid upstairs. Lapham arrived at the house to the sound of the pursuing officer coaxing Robert to come down without a fight.

Robert complied, and an officer began to arrest him once he arrived downstairs. At that point, for reasons that the record does not disclose, Robert tried to evade the officer's grasp, and a struggle ensued. Lapham de-holstered his taser and shot Robert with it. One metal dart hit just inches above Robert's heart, the other just inches below. Mitchell fell to the ground. When paramedics arrived on the scene, they detected "v-fib": ventricular fibrillation, "a highly disorganized heart rhythm . . . at rates of 400–600 [beats] per minute" that results in cardiac arrest if uncorrected. R. 236-46 at 18; see R. 236-22 at 1–2. The medical team tried to resuscitate him but could not.

The Warren Police Department purchased this X26 taser in August 2006. In mid-September 2006, several Warren officers attended a taser-training school run by an instructor hired by Taser. The Warren officers learned to aim the X26 at "center mass" because that presents "the best spot to stop a person" from advancing and a head shot poses undue risks to the individual. R. 236-41 at 3; see R. 236-16 at 14. They were told that officers should, "if practicable, deploy [the] X26 at [a] suspect's back, " as opposed to the front, but that, even when the taser's darts land on the chest, the weapon is safe. R. 236-18 at 179. Lapham learned to use a taser from a Warren training officer. The same basic training materials were in place when he joined the Warren Police Department in August 2007.

After Robert died in April 2009, his mother Cora filed this lawsuit. She first proceeded against the City of Warren, Officer Lapham, and several other Warren police officers. She sought recovery for Robert's death on several grounds: use of excessive force, racial discrimination, inadequate officer training, interference with familial relations, and wrongful death. The officers moved for summary judgment, which the district court granted in part and denied in part. At that point, Mitchell settled all outstanding claims against the officers and the City.

Meanwhile, she amended her complaint to add claims against Taser. Through the amendment, she sought additional liability on two grounds: that the company negligently failed to warn end-users about the risk of cardiac arrest from an X26 discharge to the chest, and that the company's training program negligently assured end-users that the device was safe when aimed at the chest. The district court granted summary judgment for Taser. It ruled that (1) the company had no duty to warn the Warren Police Department about any cardiac risks at the time of sale in August 2006, (2) Michigan law precluded any post-sale duty to warn, (3) Taser had not assumed a duty to warn by virtue of its training regimen, and (4) Mitchell could not prove that Lapham would have ever seen a warning even if Taser had issued one.


Mitchell first challenges the district court's duty-to-warn ruling. In doing so, she does not claim that the safety costs of using a taser exceed its benefits-that the company was negligent in making the product for law-enforcement purposes. Nor does she claim that Taser was negligent in recommending that officers aim the darts at the torso of a criminal suspect. What she claims is that the company should have warned police departments about the health risks of shooting the darts into the upper part of the front torso-the chest. In addressing this claim, we look to a state statute, not the common law. The Michigan legislature has codified a product manufacturer's duty to warn end-users about dangers associated with a product's use. The relevant statute provides:

In a product liability action brought against a manufacturer or seller for harm allegedly caused by a failure to provide adequate warnings or instructions, a manufacturer or seller is not liable unless the plaintiff proves that the manufacturer knew or should have known about the risk of harm based on the scientific, technical, or medical information reasonably available at the time the specific unit of the product left the control of the manufacturer.

Mich. Comp. Laws § 600.2948(3). Any liability for failure to warn in this case thus would require a showing that Taser "knew or should have known" about the risk of cardiac arrest from an X26 chest shot based on the information available "at the time" of sale-here August 17, 2006. A reasonable jury could not make such a finding for several reasons.

Field use of tasers. Tasers first became available to officers in 1994. The trademarked acronym has a longer heritage. It stands for "Tom A. Swift electrical rifle, " named after the young-adult novel that later inspired the weapon. See Victor Appleton, Tom Swift and His Electric Rifle (1911). When discharged, a taser fires two darts, connected to the main unit by wire, that puncture the victim's skin and send a 0.0021-amp electrical current into the body for five seconds. (A wall outlet, by comparison, delivers 16 amps; a single Christmas-tree light bulb delivers one.) The stunning effect of the five-second discharge permits police to reduce the risks of injury to individuals and officers that arise in law-enforcement encounters from time to time. Tasers permit officers to avoid using physical force in face-to-face contact to control suspects who resist arrest and permit officers to avoid using guns (and bullets) to disable or stop a dangerous and resistant suspect. In the words of one officer: "The whole point is for police to have more options to end a confrontation without further injury to the officer or the suspect." R. 236-24 at 3. By and large, tasers have done just that. As police forces integrated tasers into their non-lethal-force policies, they saw reductions in officer injuries, suspect injuries, uses of lethal force, and complaints of excessive force. At the same time, tasers caused fewer injuries than hand-to-hand restraint, chemical sprays, or batons.

Through August 2006, the use of tasers in the field confirmed that they lessened many of the occupational hazards associated with police work and many of the risks associated with suspects who refuse to follow police orders. By the end of 2005, over 8, 700 law-enforcement agencies had purchased tasers. See Taser Int'l, Inc., Annual Report 6 (Form 10-K) (Mar. 16, 2006). And by then field discharges of them had reached the hundreds of thousands. See Mark W. Kroll & Jeffrey D. Ho, TASER Conducted Electrical Weapons: Physiology, Pathology, and Law 283 (2009) (estimating 606, 395 field uses of tasers between 2001 and 2008); Kroll et al., TASER Safety, Canadian Med. Ass'n J. (Sep. 23, 2008), (estimating that tasers "ha[d] been applied to over 1.3 million people" by 2008); see also Statistics and Facts, Taser Int'l, Inc. (Mar. 25, 2015), (estimating 2.82 million applications through July 2015).

Noncompliant suspects have not been the only people exposed to tasers. Taser's training program allots time for officers to experience a taser discharge if they so choose. Taser's volunteer-exposure guidelines suggest, as the company advises for all discharges, that "[p]robe hits to the back are safer" and to "avoid the face, throat, [and] groin." R. 236-18 at 81. In the heat of law enforcement encounters, officers of course do not always have that choice when trying to stop or control a suspect.

Through it all, just two potential cardiac-arrest problems arising from taser use-both mentioned by Mitchell's expert witness, Dr. Douglas Zipes-had been made...

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