Hollman v. Taser Int'l Inc.

• Citation: 928 F.Supp.2d 657
• Decision Date: 08 March 2013
• Docket Number: No. 06–cv–3588 (JFB)(ARL).,06–cv–3588 (JFB)(ARL).
• Parties: Mary HOLLMAN, and The Estate of Samuel A. Cox, Plaintiffs, v. TASER INTERNATIONAL INCORPORATED, Defendant.
• Court: U.S. District Court — Eastern District of New York

928 F.Supp.2d 657

Mary HOLLMAN, and The Estate of Samuel A. Cox, Plaintiffs,

v.TASER INTERNATIONAL INCORPORATED, Defendant.

No. 06–cv–3588 (JFB)(ARL).

United States District Court,

E.D. New York.

March 8, 2013.

Frederick K. Brewington, Ira Fogelgaren, Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiff.

John V. Tait, Christopher Renzulli, John Renzulli, Renzulli Law Firm, LLP, White Plains, NY, Michael Brave, Holly L. Gibeaut, TASER International, Inc., Scottsdale, AZ, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Plaintiff Mary Hollman, as the Administrator of the Estate of Samuel A. Cox, and the Estate of Samuel A. Cox (collectively, “plaintiff”) brings this action against TASER International Incorporated (“TASER” or “defendant”), alleging that an Electronic Control Device (“ECD”) manufactured by TASER was a contributing factor in the death of Samuel A. Cox (“Cox”). Specifically, plaintiff alleges that TASER was either strictly liable or negligent for failing to warn police officers that repeated applications of an ECD can result in fatal metabolic acidosis. Plaintiff also brings causes of action for wrongful death and breach of warranty.

On October 17, 2011, defendant filed motions to exclude the expert testimony of Dr. Michael Morse (“Morse”), Edward Mamet (“Mamet”), and Dr. William Manion (“Manion”) as being inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). On February 1, 2012, the Court orally denied defendant's motions in limine, and indicated that a written opinion would be forthcoming. This is that written opinion.

TASER now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant also moves to strike the declaration of Manion, as well as certain exhibits that plaintiff submitted in support of her opposition to defendant's motion for summary judgment. For the reasons set forth below, the Court grants defendant's motion for summary judgment. Specifically, summary judgment must be granted on plaintiff's failure to warn claims because plaintiff has not submitted any evidence that defendant knew or should have known, at the time of Cox's death in April 2005, that ECD application in drive-stun mode could cause metabolic acidosis.

Without such evidence, no rational jury could conclude that defendant should have warned ECD users of the risk of metabolic acidosis. The Court also grants summary judgment on plaintiff's breach of warranty claims because plaintiff has not brought forth any evidence that the ECDs at issue contained defects in workmanship or materials that would constitute a breach of the limited express warranty; moreover, defendant properly disclaimed all implied warranties. Accordingly, defendant's motion for summary judgment is granted, and all of plaintiff's claims are dismissed.^1,2

I. Background

A. Factual Background

The Court has taken the facts set forth below from the parties' depositions, affidavits, and exhibits, and from the parties' respective Rule 56.1 Statements of Facts.³ Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of N.Y., 422 F.3d 47, 50–51 (2d Cir.2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.^4,5

The TASER X26 ECD (“X26”) is a weapon used by police officers to subdue individuals. The X26 may be used in either probe deployment mode or drive-stun mode. (Decl. of Patrick Smith (“Smith Decl.”) ¶ 8.) In probe deployment mode, “two small metal darts” are fired from the ECD into the target “via compressed nitrogen with electrical impulse transmitted into the target through very thin insulated trailing wires.” ( Id.) In this mode, the ECD is “designed to transmit stimuli through very short duration low charge electrical pulses that interfere with the command and control systems of the body at the motor-neuron level to temporarily incapacitate the target.” ( Id. ¶ 9.) The electrical pulse is intended to result in Neuro–Muscular Incapacitation (“NMI”). ( Id.) The darts must be adequately spread out on the target to “ensure major muscle groups between the darts are affected by the charge.” ( Id. ¶ 10.) In drive-stun mode, “electrical impulses are transmitted superficially through two fixed electrodes on the ECD,” which are then applied directly to the target. ( Id. ¶ 11; see also id. ¶ 17.) TASER claims that use of the X26 in drive–stun mode is “strictly [for] pain compliance” and does not result in NMI. ( Id. ¶ 11.) On August 5, 2004, the Suffolk County Police Department (“SCPD”) purchased forty-five X26 ECDs from TASER. (Smith Decl. Ex. A.)

On April 22, 2005, SCPD Sergeant Kevin Lixfield (“Lixfield”) received a call from another officer informing him that an ECD might be needed to arrest an individual inside a home in Bellport, New York. (Def.'s 56.1 ¶ 8.) According to Lixfield's incident report and deposition, a large group of people standing outside the home indicated to Lixfield as he arrived that someone was “busting up the house.” (Decl. of John Tait (“Tait Decl.”) Ex. 1, Dep. of Kevin Lixfield (“Lixfield Dep.”) at 14.) When Lixfield entered the house, he observed five or six officers surrounding Cox, who was “bare chested, screaming, threatening and moving in a highly agitated state.” ( Id. at 14–15.) Lixfield warned Cox that he would use an ECD on him. ( Id. at 15.) Cox lunged at Lixfield, and Lixfield fired the ECD at Cox in probe deployment mode. ( Id.) Although the darts struck Cox in the chest, the ECD “had no apparent [e]ffect on him and he pulled both darts from his chest and continued to come at [Lixfield].” ( Id.) Although the parties dispute how long the probes remained in Cox's chest, one of plaintiff's experts stated that they were “probably” removed “pretty quick” and he guessed that Cox removed the darts within “a few seconds.” (Tait Decl. Ex. 10, Dep. of William Manion (“Manion Dep.”) at 157.) Lixfield attempted to reload new darts into the ECD, but he accidentally discharged the darts into his hand. (Lixfield Dep. at 15.)

According to Lixfield, Cox and the officers then engaged in a “free-for-all” for approximately five minutes. ( Id. at 37.) Cox punched and kicked the officers as they tried to arrest him. ( Id.) During the scuffle, Lixfield used the ECD in drive-stun mode against Cox by placing it on Cox's “back, buttocks, and the back of his legs.” ( Id. at 16.) Lixfield stated that the weapon appeared to have no effect on Cox. ( Id. at 44.) Because Lixfield believed the ECD was not working, he tested it by pointing the device up in the air and firing. ( Id. at 140.) Lixfield testified that he tested the ECD in that manner approximately four or five times. ( Id. at 138–39.)

Although the officers were eventually able to handcuff Cox with his hands in front of him, Cox continued to resist. ( Id. at 40.) As the officers attempted to carry him to a stretcher across the room, Cox kicked and attempted to stop the officers. (Tait Decl. Ex. 3, Dep. of David Doherty (“Doherty Dep.”) at 32.) While attempting to secure Cox to the stretcher, Lixfield used the ECD in drive-stun mode on Cox's shoulder, while SCPD Sergeant David Doherty (“Doherty”) used an X26 on Cox's lower back. (Def.'s 56.1 ¶ 21.) ⁶ The officers were able to place Cox into an ambulance and he was transported to Brookhaven Hospital. ( Id. ¶ 24.) Once Cox was placed into the ambulance, the officers did not use the ECD on him again. ( Id. ¶ 25.)

The X26 has data download capabilities that record the date, time, and duration of each trigger pull. ( Id. ¶ 6.) The data does not record whether the device made contact with the target. ( Id.) The data for Lixfield's X26 demonstrates that the trigger was pulled ten times during a 17–minute 40–second time span. (Tait Decl. Ex. 2, Data Download Report for Sgt. Lixfield's X26 ECD.) The first nine pulls occurred within a 2–minute and 43–second span, and the final pull occurred nearly 15 minutes after the ninth pull.⁷ ( Id.) The data from Doherty's device demonstrates that his ECD was only fired once. ( Id. Ex. 4, Data Download Report for Sgt. Doherty's X26 ECD.) The X26 does not record whether the device was used in probe deployment mode or drive-stun mode. ( See id. Exs. 2, 4.) Defendant states that all applications of the ECDs to Cox were in drive-stun mode except for Lixfield's first trigger pull in probe deployment mode. (Def.'s 56.1 ¶ 12.) Plaintiff appears to dispute this fact, but provides the Court with no evidence demonstrating that more than one of the ECD applications against Cox was in probe deployment mode. ( See Pl.'s 56.1 ¶ 12.)

There is conflicting evidence regarding Cox's physical state during the ambulance ride to the hospital. Lindsey Smith, an EMT who was in the ambulance with Cox, said that Cox was “still flailing, yelling and screaming” while en route to the hospital. (Tait Decl. Ex. 5, Statement of Lindsey Smith at 4.) However, SCPD Officer Sean Neknez, who was also in the ambulance, said that Cox did not speak or cry out, and although Cox tried to move his left leg in a backwards kicking motion, Neknez held it down so he could not kick anyone. (Decl. of Frederick K. Brewington, May 31, 2012 (“Brewington May 31 Decl.”) Ex. D, Dep. of Sean Neknez at 226–29.) Shortly after Cox was brought into the trauma room at the hospital, a nurse realized that Cox was not breathing. (Brewington May 31 Decl. Ex. V, Dep. of Carol Burke at 28.) The hospital staff initiated CPR, but resuscitation efforts were not successful and Cox was pronounced dead. (Def.'s 56.1 ¶ 28.)

Suffolk County Deputy Medical Examiner Dr. Gwen Harleman (“Dr. Harleman”) performed an autopsy on Cox. ( Id. ¶ 29.) Dr. Harleman observed five sites of TASER ECD marks on Cox's body. ( Id...