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Shocking: 9th Says Taser Had No Duty to Warn of Metabolic Acidosis

By Robyn Hagan Cain on July 11, 2012 | Last updated on March 21, 2019

Tasers were once again the topic du jour at the Ninth Circuit Court of Appeals on Tuesday as a three-judge panel decided whether Taser International, in August 2004, was under a duty to warn that repeated exposure to its products could lead to fatal levels of metabolic acidosis.

The Ninth Circuit upheld dismissal of a failure to warn lawsuit against the company, concluding that Taser International had no reason to advise police agencies in 2004 that the stun guns could cause the condition, reports the Los Angeles Times.

In August 2004, police in Del Rey Oaks, Calif. responded to a call regarding a “pretty disturbed” man walking down a street and yelling. The “disturbed” man, Michael Rosa, was under the influence of meth and refused to comply with the cops’ verbal commands. The officers, thinking that Rosa was either “high or crazy,” subdued Rosa by deploying a Taser M26 multiple times, and handcuffing Rosa. It took six officers to subdue Rosa, who continued to resist after an officer attempted to handcuff him.

After officers had Rosa in restraints, they rolled him onto his side. At that point, Rosa slumped. His lips had turned blue, and his breathing was erratic. He quickly stopped breathing entirely. Despite resuscitation efforts, Rosa died.

Rosa’s death was subsequently linked to metabolic acidosis, a condition under which lactic acid accumulates more quickly than the body can dispose of it, causing the pH in the body to decrease. The condition makes sudden cardiac arrest more likely.

Rosa’s parents and daughter, (the plaintiffs) sued Taser International, asserting that Rosa died because the company provided an inadequate warning of the risk that shocks can cause fatal levels of metabolic acidosis. They pursued both strict liability and negligence theories under California law based upon this failure to warn.

Taser International maintains there is no evidence that Tasers cause acidosis, but began warning about it anyway in 2009, reports the L.A. Times.

After discovery, the district court granted summary judgment in favor of Taser, concluding that the plaintiffs had not established a triable issue of fact that the risk of metabolic acidosis was known or knowable when the M26 at issue was distributed in December 2003, (or even when Rosa died the following August). The Ninth Circuit Court of Appeals affirmed summary judgment, finding that the district court had reached the right conclusion.

Taser attorney John Maley told the L.A. Times, “The science even today doesn’t establish that dangerous acidosis results from Taser application,” but the company decided to issue warnings to avoid potential liability.

So far, the score in the Ninth Circuit Court of Appeals is Tasers 2, victims 0. The Ninth Circuit ruled last year that Seattle cops — who thrice deployed a Taser against a non-violent pregnant woman — were entitled to qualified immunity because the constitutional right to be free of tasering was not clearly established in the context of the case.

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