A recent U.S. Ninth Circuit Court of Appeal’s decision in favor of Taser International, Inc. provides valuable information and support for the use of scientific information and state of the art evidence in defending a failure to warn case.  The case discussed what scientific information is “known or knowable” at the time a product was made or the incident occurred and how that information was developed in the case to obtain a defense verdict.  The case involved the death of a suspect in police custody who was tasered several times by police officers.  The decedent’s family claimed that despite discussions within the scientific literature (as early as 1999) that a stun gun might contribute to fatal levels of acidosis, cardiac arrest, and death, Taser had not adequately warned the police departments that purchased its stun guns.  The trial court and the Ninth Circuit both concluded that Taser had no duty to warn based upon the available scientific information when the accident happened.  The earlier scientific literature, and even the fact that Taser had subsequently issued warnings for its stun guns, was not enough to convince the two courts that there was a failure to warn.  Although California law holds manufacturers to the knowledge and skill of an expert in the field, and they are required to keep abreast of scientific discoveries and advances affecting their products, the Ninth Circuit stated that manufacturers are

… not under a duty to warn of ‘every report of a possible risk, no matter how speculative, conjectural or tentative, because inundating [the public] indiscriminately with notice of any and every hint of danger’ would inevitably dilute the force of any specific warning given.’” 

Defendants in a strict liability failure to warn case can present evidence supporting the conjectural nature of a risk by offering evidence of (or the lack thereof) the

state of the art, i.e. events that the particular risk was neither known, or knowable by the application of scientific knowledge available at the time of manufacture and/or distribution.” 

The Taser case supports an argument that the plaintiffs have to meet the “extra” level to establish their burden of proof to present prevailing scientific and medical knowledge to meet the “known or knowable” element of a strict liability claim. Obviously each case is going to have its unique facts and scientific information and what was known or knowable, but the Ninth Circuit case supports the “state of the art” defense in a products liability failure to warn case.

 The other interesting part of the Taser case is how subsequent-remedial measures are handled in state court versus federal court.  California state courts allow such evidence but the California federal district courts, including the Ninth Circuit, do not (evidence of subsequent-remedial measures is inadmissible in a products liability case).  So, anytime you can remove a case to federal court you could also get the benefit of stronger evidentiary rulings on post-remedial measures.

The case is Rosa v. TASER International, Inc. (9th Cir, July 10, 2012, No. 09-17792), F.3rd [12 C.D.O.S. 7822] (Rosa).