Less than 18 months after a jury found Taser International liable for failing to warn that its stun guns could cause heart attacks, a California judge has completely disregarded that verdict in dismissing a very similar wrongful-death lawsuit.

Granting Taser's motion for summary judgment, U.S. District Judge Jeremy Fogel ruled that the company could not be sued by the parents of Michael Rosa, who died of cardiac arrest in August 2004 after Seaside, Calif., police repeatedly shocked him with an M26 “electronic control device” (ECD).

Judge Jeremy Fogel

The plaintiffs, he said in a Nov. 20 opinion, had failed to present sufficient evidence that the danger of tasers causing acidosis-induced heart attacks was “scientifically known or knowable” by Taser at the time it sold the stun guns used on Rosa. “There is no legal authority for imposing a duty to warn based on evidence this sparse,” he concluded.

Acidosis is a buildup of lactic acid in the blood that can be caused by the rapid contraction and relaxation of muscles resulting from electric shocks.

In June 2008, a jury in the same San Jose courthouse where Fogel sits awarded $6.2 million to the parents of Robert Heston, who had a fatal heart attack after Salinas, Calif., police repeatedly tasered him with an M26. U.S. District Judge James Ware later reduced the award to $1 million, but affirmed the jury's finding of negligence against Taser.

“There was substantial evidence upon which a reasonable jury could find, as this jury did find, that a reasonable manufacturer would have warned” of the risks of prolonged exposure to ECDs, he said in Heston v. City of Salinas.

That evidence consisted of two reports warning of the acidosis risk, one of which was published in the prestigious British medical journal The Lancet in 2001. Dr. Raymond Fish, a Chicago emergency medicine specialist, contributed to both reports but is now an expert witness for Taser.

Finding the same evidence lacking, Fogel noted that “In his expert report on behalf of TASER in this action, Fish 'unequivocally rejects the theory that ECDs on humans decrease respirations and cause dangerous acidosis.'”

In apparent deference to his judicial colleague, he also insisted that his decision

is not inconsistent with any of Judge Ware’s rulings in Heston. While Judge Ware denied TASER’s motion for summary judgment, TASER’s motion in Heston did not challenge the sufficiency of the plaintiffs’ evidence regarding the “known or knowable” or “should have known” elements of the plaintiffs’ claims with respect to ECD-induced metabolic acidosis.

Since Taser never filed a summary judgment motion in Heston, it appears Fogel isn't very well versed in the record of that case.

Heston suffered his lethal tasering in February 2005 –- only six months after Rosa. But Fogel speculated that “the state of scientific and medical research in 2005 may have been different than it was at the time of the underlying incident in this case.”

“Does he point to anything that happened [between the two deaths] that changed anything?” asks Pasadena attorney John C. Burton, who represents both the Rosa and Heston families. “Doesn't he have to point to something to say that?”

The summary dismissal of the Rosa case averts a trial that had been scheduled for next month. Burton says he will appeal the decision, which he called a “travesty.”

More than 60 wrongful death or personal injury lawsuits involving Taser shocks have been filed in the U.S. but the Heston case was the first in which a jury found Taser liable. Both sides have appealed Judge Ware's final judgment.

By Matthew Heller
11/24/09