Herzog v. Super. Ct. of San Diego Cty.

• Docket Number: D082847
• Decision Date: 16 May 2024
• Citation: 321 Cal.Rptr.3d 93
• Parties: Lara HERZOG et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Dexcom, Inc., Real Party in Interest. [And four other cases.]
• Court: California Court of Appeals

321 Cal.Rptr.3d 93

Lara HERZOG et al., Petitioners,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Dexcom, Inc., Real Party in Interest. ^*[And four other cases.]

D082847

Court of Appeal, Fourth District, Division 1.

Filed May 16, 2024

ORIGINAL PROCEEDING on five consolidated petitions for writ of mandate.Relief granted.(San DiegoCounty Super. Ct.Nos. 37-2022-00049800-CU-PL-CTL, 37-2023-00012889-CU-PL-CTL, 37-2023-00014497-CU-PL-CTL, 37-2023-00014471CU-PL-CTL, 37-2022-00047846-CU-PL-CTL)

Tosi Law, Timothy M. Clark, Irvine, and Min J. Koo(pro hac vice) for all Petitioners.

No appearance for Respondent.

Gordon Reese Scully Mansukhani, Kevin W. Alexander, San Diego, Renata Ortiz Bloom, Carlsbad; UB Greensfelder and Joshua A. Klarfeld(pro hac vice) for Real Party in Interest.

DO, J.

INTRODUCTION

Henry J. Hebert, Traci Moore, Aliya Campbell Pierre, Tiffanie Tsakiris, and Brenda Bottiglier are diabetic patients whose doctors prescribed the Dexcom G6 Continuous Glucose Monitoring System (Dexcom G6) to manage their diabetes.The Dexcom G6 allegedly malfunctioned and failed to alert each of them that their blood glucose level was either too low or too high, resulting in serious diabetic injuries; and in Hebert’s case, untimely death.

Five separate products liability actions were then filed against the manufacturer, Dexcom, Inc.(Dexcom).In response to all five actions, Dexcom moved to compel arbitration.It asserted that each injured party entered a "clickwrap" agreement to arbitrate all disputes when they installed a mobile medical application called the "G6 App" on their personal smart devices to read their glucose levels and clicked the box next to, "I agree to Terms of Use."Terms of Use was a hyperlink to a separate webpage with contractual terms, including an arbitration provision.Agreeing with Dexcom, the trial court granted Dexcom’s motions in all five cases.

Plaintiffs—Moore, Pierre, Tsakiris, Bottiglier, and Hebert’s daughters, Lara Herzog and Melanie Samora—each petitioned this court for writ of mandate directing the trial court to vacate its orders compelling them to arbitrate.We consolidated the cases and issued an order directing Dexcom to show cause why the relief sought should not be granted.We now grant the petitions and direct the trial court to vacate its orders granting Dexcom’s motions to compel arbitration and to enter new orders denying the motions.

On our de novo review, we conclude the trial court erred.Although a clickwrap agreement—one in which an internet user accepts a website’s terms of use by clicking an "I agree" or "I accept" button, with a link to the agreement readily available—is generally enforceable, Dexcom’s G6 App clickwrap agreement is not.We find that Dexcom undid whatever notice it might have provided of the contractual terms by explicitly telling the user that clicking the box constituted authorization for Dexcom to collect and store the user’s sensitive, personal health information.For this reason, Dexcom cannot meet its burden of demonstrating that the same click constituted unambiguous acceptance of the Terms of Use, including the arbitration provision.Consequently, arbitration agreements were not formed with any of the plaintiffs.

FACTUAL AND PROCEDURAL BACKGROUND

I.Plaintiffs’ Lawsuits

Plaintiffs alleged Dexcom marketed and sold the Dexcom G6 "as a potentially life-saving medical device capable of detecting and preventing hyperglycemic and hypoglycemic events by alerting users of near-dangerous blood glucose levels that may trigger such events."The prescription medical device replaces fingerstick blood glucose testing and scanning to manage diabetes.

It consists of a wearable subcutaneous sensor patch that continuously measures and monitors glucose levels in real time; a transmitter that wirelessly sends glucose information to the user’s display device; and the display device itself.It is designed to "literally ‘sound the alarm’ when a near-dangerous glucose level is detected" so the diabetic patient is provided "at least a 20-minute advance warning and window to avoid a potential hyperglycemic or hypoglycemic event."

Hebert, Moore, Pierre, Tsakiris and Bottiglier each purchased and used the Dexcom G6 as prescribed by their medical provider.But for each, the Dexcom G6 allegedly malfunctioned: it failed to alert them of dangerous glucose levels or stopped transmitting glucose readings, depriving them of the " ‘golden window’ of time to intervene and prevent a potentially life-threatening medical condition."As a result, Moore, Pierre, Tsakiris and Bottiglier allegedly suffered serious diabetic injuries, some requiring hospitalization.In Hebert’s case, the Dexcom G6’s malfunction allegedly caused his untimely death.

Moore, Pierre, Tsakiris and Bottiglier sued Dexcom to recover damages for their injuries, asserting various causes of actions for products liability (the Moore, Pierre, Tsakiris, and Bottigliercases).In addition to a survival cause of action on behalf of their father’s estate, Herzog and Samora, Hebert’s daughters, also asserted a wrongful death cause of action against Dexcom in their individual capacity (the Herzog case).

II.Dexcom’s Motions to Compel Arbitration

In all five cases, Dexcom responded to the operative complaint by moving to compel arbitration and to stay the action pending completion of arbitration.Dexcom’s motions were virtually identical in each case.Their essential premise was that Hebert, Moore, Pierre, Tsakiris, and Bottiglier had used the G6 App and had entered an arbitration agreement with Dexcom during the process required to install the G6 App.

As its sole evidence of the purported arbitration agreements, Dexcom submitted a declaration from its senior manager of data privacy, Eric Lovell.Lovell’s declaration was also identical in every case, with one exception we later discuss.

Consistent with the plaintiffs’ complaints, Lovell explained the Dexcom G6 consisted of three components: a sensor, a transmitter, and a display device.According to a graphic in the Dexcom G6 "User Guide"(included in plaintiffs’ complaints), the components look like this:

321 Cal.Rptr.3d 100.bmp

A diabetic person could use the Dexcom receiver as her display device, without installing the G6 App.Or she could elect to use the G6 App to view her glucose data on "a compatible personal mobile device, such as an iPhone."

Lovell explained the process that is required to use the G6 App on a personal mobile device."Upon initial launch of the G6 App, the G6 App displays a series of startup screens, known as the startup wizard"(which he sometimes called the "setup wizard"), "to have the user configure the device."The user is required to log in to a Dexcom account to use the G6 App, and if the user does not already have a Dexcom account, the G6 App will require new users to create a Dexcom account."The setup wizard will then display a set of legal agreements from the web in a webview.The webview communicates to the G6 App when the user hits ‘Submit.’ "According to Lovell, "The user cannot complete the setup process and use the G6 App without completing all of the aforementioned steps, including the acceptance of Dexcom’s Terms of Use."

Attached as Exhibit D to Lovell’s declaration was a "screenshot depicting the setup wizard steps"he just explained.It looked like this:

321 Cal.Rptr.3d 101.bmp

In the initial screen on the left, under the words "Your Dexcom Account," a user is prompted to enter a "Username" and "Password," and to click on a "Login" button.As we previously mentioned, Lovell explained a user would need to create a Dexcom account if one did not exist, in order to proceed past this initial screen.He did not explain, nor does Exhibit D show, how a user would create a Dexcom account, or whether that action would occur on the same screen or a different screen.

Once the user has successfully logged into an existing Dexcom account, or successfully created a new Dexcom account, the user would then advance to the screen on the right of Exhibit D.On this screen, titled "Legal," the following paragraph of text is displayed:¹

"You understand and agree that your use of this website or any DexCom Inc. mobile application or software platform for your DexCom continuous glucose monitor is subject to the Terms of Use, Privacy Policy and any other acknowledgements listed below.By ticking the boxes below you understand that your personal information, including your sensitive health information, will be collected, used and shared consistently with the Privacy Policy and Terms of Use.You further understand that personal information and sensitive personal information will be stored and processed by DexCom, Inc., and/or its affiliate, SweetSpot Diabetes Care, Inc. in the United States, which may have different data protection laws than the country in which you reside."(Italics added.)

Underneath this paragraph were two boxes: one next to the statement, "I agree to Terms of Use" and another next to, "I agree to Privacy Policy."The phrases "Terms of Use" and "Privacy Policy," which were written in green, were hyperlinks that, if clicked, would take the user to separate webpages.The user has to click on the boxes in order to place a check mark in them, which would then allow the user to click on the green "Submit" button that appeared below the boxes.The user, however, is not required to actually view the hyperlinked Terms of Use (or the Privacy Policy) in order to complete the setup wizard process to use the G6 App.

The Terms of Use hyperlink, if clicked, would take the user to another webpage, titled "DEXCOM TERMS OF USE."That webpage would display 22 pages of terms (if printed on standard 8.5 inch by 11 inch paper), including an arbitration provision.Three versions of the Terms of Use were attached as exhibits to Lovell’s declaration.The first version was effective from September 18, 2018 through February 10, 2019(Exhibit A); the...