Powers v. Taser Intern., Inc.

• Decision Date: 31 December 2007
• Docket Number: No. 1 CA-CV 06-545.,1 CA-CV 06-545.
• Citation: 217 Ariz. 398,174 P.3d 777
• Parties: Samuel E. POWERS, a married man, Plaintiff-Appellant, v. TASER INTERNATIONAL, INC., a Delaware corporation, Defendant-Appellee.
• Court: Arizona Court of Appeals

174 P.3d 777

217 Ariz. 398

Samuel E. POWERS, a married man, Plaintiff-Appellant, v. TASER INTERNATIONAL, INC., a Delaware corporation, Defendant-Appellee.

No. 1 CA-CV 06-545.

Court of Appeals of Arizona, Division 1, Department B.

December 31, 2007.

As Corrected January 4, 2008.

Dillingham & Reynolds LLP By John L. Dillingham and Thomas C. Wilmer, PC By Thomas C. Wilmer, Phoenix, Attorneys for Plaintiff-Appellant.

Paul G. Ulrich PC By Paul G. Ulrich, Pamela B. Petersen, and Renaud Cook Drury & Mesaros PA By Charles A. Struble, Christina J. Reid-Moore, William W. Drury, Jr., Phoenix, Attorneys for Defendant-Appellee.

OPINION

BARKER, Judge.

¶ 1 This Opinion addresses whether the hindsight test should be applied to a strict liability products claim alleging failure to warn as the defect. That test was adopted in Dart v. Wiebe Manufacturing, Inc. for strict liability products claims based on design defects. 147 Ariz. 242, 709 P.2d 876 (1985). The court expressly left open that issue as to strict liability products claims asserting a failure to warn. 147 Ariz. at 247 n. 2, 709 P.2d at 881 n. 2. For the reasons set forth below, we decline the invitation to adopt the hindsight test for such claims.

¶ 2 We also address whether an offer of judgment that is conditioned upon confidentiality complies with Rule 68, Arizona Rules of Civil Procedure. As discussed herein, we determine that it does.

I.

¶ 3 Plaintiff-Appellant Samuel E. Powers appeals a jury verdict in favor of Defendant-Appellee Taser International, Inc. ("Taser") on Powers' claim for strict products liability arising out of the alleged injury he suffered when shocked by the Advanced Taser M-26 ("M-26").

¶ 4 Taser manufactures and sells conducted energy weapons, including the M-26, which employs electro-muscular disruption (EMD) technology to stimulate a person's motor nerves, causing an involuntary muscle contraction.¹ The evidence at trial was that earlier electric weapon devices affected only the sensory nervous system and relied primarily on pain compliance, which can be overcome by the recipient through focus or when he or she is under the effects of drugs or alcohol. The M-26, however, is designed to affect the sensory and motor nervous systems, overriding the central nervous system and causing uncontrollable muscle contractions that make it physically impossible for a person exposed to the M-26 to not respond to its effects.

¶ 5 On July 16, 2002, Powers was a sixteen-year veteran of the Maricopa County Sheriff's Office ("MCSO"), where he worked as a deputy sheriff. That morning, he participated in a training and certification course offered by the MCSO that was a prerequisite to being certified to carry the M-26. During the course, Powers received training materials prepared by Taser and viewed a Power-Point Presentation regarding the M-26.

¶ 6 The materials described the M-26 as a "less-lethal" weapon and represented that the M-26 had been (1) tested on animals and found to have no effect on heart rhythms and (2) deployed on more than 3000 persons with no long-term effects. The materials warned, however, that short-term injuries could result from a fall associated with exposure to the M-26, noting that the most significant injuries to date had been "cuts, bruises and abrasions." In addition, as part of the training course, Powers viewed several videos showing individuals being exposed to the M-26.

¶ 7 As part of the course and as a prerequisite for certification to carry the M-26, the MCSO required all officers to be exposed to the electrical force of the M-26. Powers agreed to be exposed to the M-26 and was struck by the device. As a result of his exposure to the M-26, Powers allegedly suffered a compression fracture of his T-7 spinal disc.

¶ 8 Powers' physician, Dr. Terry McLean, discovered while treating Powers for this injury that Powers had severe osteoporosis, a quantitative loss of bone mass that weakens the bones. As a result of his osteoporosis and his physician's orders restricting him to light duty, Powers was unable to continue to work as a deputy sheriff and resigned from the MCSO in June 2003.

¶ 9 Powers filed suit against Taser, alleging that the M-26 was unreasonably dangerous and defective because it lacked adequate instructions and warnings. He alleged that as a direct and proximate result of the defective and unreasonably dangerous condition of the M-26, he suffered severe and permanent injuries for which he sought compensation. Taser argued at trial that because it did not know that the muscle contractions produced by the M-26 were strong enough to cause a fracture, it was not required to warn Powers about such a danger and contested his claimed damages.

¶ 10 The jury returned a general verdict in favor of Taser. Powers moved for a new trial, which was denied. The court also awarded as a sanction under Rule 68(d), Arizona Rules of Civil Procedure, reasonable expert witness fees of $24,414.90. Taser sought sanctions under Rule 68(d) as it had presented an offer of judgment more favorable to Powers than the outcome at trial. Powers objected to the trial court's award of Rule 68(d) sanctions, arguing that Taser's offer of judgment was unenforceable because it was conditioned upon confidentiality and therefore did not comply with Rule 68(b). The objection was denied and sanctions in the form of reasonable expert fees were awarded.

¶ 11 Powers timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) & (F) (2003). Powers raised issues on appeal in addition to those set forth in this Opinion. We resolve them, pursuant to Arizona Rule of Civil Appellate Procedure 28(d), in a simultaneously filed Memorandum Decision.

II.

A.

¶ 12 Powers argues that Arizona has adopted a "hindsight" approach in strict liability cases involving alleged informational defects and claims the trial court erroneously failed to instruct the jury that it could impute to Taser knowledge of the danger of the M-26 that was revealed subsequent to Taser's distribution of the product. We review jury instructions as a whole to determine whether the jury was properly guided in its deliberations. Pima County v. Gonzalez, 193 Ariz. 18, 20, ¶ 7, 969 P.2d 183, 185 (App.1998). An instruction will only warrant reversal if it was both harmful to the complaining party and directly contrary to the rule of law. Amerco v. Shoen, 184 Ariz. 150, 156-57, 907 P.2d 536, 542-43 (App.1995) (finding no error with trial court's instructions that, viewed as a whole, gave the jury the proper rules to be applied and did not suggest a conclusion contrary to law). We will not overturn a jury verdict on the basis of an improper instruction "unless there is substantial doubt whether the jury was properly guided in its deliberations." Barnes v. Outlaw, 188 Ariz. 401, 405, 937 P.2d 323, 327 (App.1996), aff'd in part and rev'd in part on other grounds, 192 Ariz. 283, 964 P.2d 484 (1998).

¶ 13 The trial court ruled before trial that Taser's "duty to warn under a product liability claim for relief is ... a foresight test, i.e., what the manufacturer of the product knew or reasonably should have known when the product was introduced into the stream of commerce, and not a hindsight test." Consistent with this ruling, throughout the trial the court excluded evidence of subsequent testing of the M-26, except as it pertained to the feasibility of having performed that testing prior to Powers' injury.² Despite the court's position, at the conclusion of trial Powers requested that the court instruct the jury that it could impute to Taser knowledge of dangers associated with the M-26 that only became known after Powers' injury. Specifically, Powers requested that the trial court instruct the jury based on alternative 2 set forth in Revised Arizona Jury Instruction — Product Liability 4 (January 2005) ("RAJI 4"). RAJI 4 states:

[Name of plaintiff] claims that there was not (an) adequate [warning][instruction] on/with the product. A product, even if faultlessly made, is defective and unreasonably dangerous if it would be unreasonably dangerous for use in a reasonably foreseeable manner without (an) adequate [warning(s)] [instruction(s)].

RAJI 4 (2005). The RAJI Committee then gave a choice of two alternatives to complete the instruction. Alternative 1 states:

A product is defective and unreasonably dangerous if a manufacturer or seller who knows or should know that a foreseeable use of its product may be unreasonably dangerous does not provide adequate [warning(s) of the danger][instruction(s) for reasonably safe use].

Id. Alternative 2 provides:

[A manufacturer or seller is presumed to have known at all relevant times the facts that this accident and this trial have revealed about the harmful characteristics of the product and the consequences of its reasonably foreseeable use, whether or not the manufacturer or seller actually knew those facts. If you find that it would not be reasonable for a manufacturer or seller, with such presumed knowledge, to have put this product on the market without providing (an) adequate [warning(s) of the danger][instruction(s) for reasonably safe use], then the product is defective and unreasonably dangerous.]

Id. Taser objected to Powers' proposed instruction, arguing that because the court had already ruled that it would not apply the hindsight test, the court should instruct the jury based upon alternative 1 to RAJI 4.

¶ 14 In the notes to RAJI 4, the Committee suggests that the court give the first paragraph of the instruction and either the second paragraph or the third paragraph, depending on the circumstances of the case, explaining:

The Committee was unable to determine, as a result of the Arizona Supreme Court's footnote 2 in Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 709 P.2d 876 (1985), whether a hindsight test is applied in strict liability information defect cases. The court expressly...