NANCY K. JOHNSON, District Judge.
Pending before the court
Plaintiff filed this products-liability action against a company that supplied the Houston Police Department ("HPD") with Conducted Electrical Weapons ("CEWs"),
The parties submitted statements of facts and filed responses and replies thereto. The court relies on all of those briefs to craft the following sections on undisputed facts and disputed facts and inferences.
From 2003 to 2014, Defendant produced the TASER X26E CEW ("X26E").
That same month, Defendant shipped the first 2,188 X2s and related accessories, valued at $2.8 million.
The box in which Plaintiff's X2 was packaged also contained Defendant's "Warranty, Limitations and Release — Law Enforcement Products," which read in bold typeface:
According to its specifications, the X2's electrical output consisted of the following:
The X2 was "designed to use electrical impulses to cause stimulation of both the sensory and motor nerves ["called Neuro-Muscular Incapacitation" ("NMI")] to temporarily incapacitate a target."
In May 2008, Plaintiff was hired by HPD as a patrol officer.
Walker fell, and Plaintiff armed her X2.
Thereafter, Walker encountered a witness, Raymond Davis ("Davis"). The details of the encounter are disputed and discussed in the next section. Plaintiff chased Walker who, after encountering Davis, ran into the bathroom at the store and barricaded herself inside.
At the scene, Plaintiff was treated only for a hand injury and did not indicate in her incident report that she suffered a back injury.
In at least three material areas, as outlined by the parties in their statements of facts, the facts or the inferences reasonably drawn from those facts are in dispute: (1) comparative effectiveness between the X2 and other models; (2) the timeline vis-à-vis Plaintiff's deployment of the X2; and (3) the cause of Plaintiff's back injury. The court recounts those disputes.
One officer on the scene stated that Plaintiff told him that her X2 did not work, and another officer on the scene said that Plaintiff was upset about the X2's performance.
The main phase charge of a CEW is "the single most important electrical parameter" and is important in determining its ability to cause NMI.
Defendant also markets a consumer CEW, the TASER Pulse, that has a charge of ninety microcoulombs and uses the same type of circuit as the X2.
Plaintiff offers a timeline of events based on the HPD data download report from the X2, which indicated that Plaintiff's first trigger pull occurred at 12:46 p.m.
Davis, the witness, reported that after Walker fell and hit her head, she jumped up immediately and ran to him.
Although Plaintiff did not initially claim a back injury, Sergeant Richard Reyna ("Reyna") testified that he was "aware during [his] time as a Houston police officer where someone ha[d] been injured in a course of a fight and [did] not realize the full extent of their injuries on the . . . day of the fight."
A physician who performed a physical examination of Plaintiff pursuant to the Federal Rules of Civil Procedure 35 testified, that Plaintiff's back injury was "what's called a lumbar radiculopathy" that, hypothetically, could have resulted from a rotational injury caused by a physical fight with another person.
On March 2, 2017, Plaintiff filed this lawsuit, asserting claims of negligence in the manufacturing of the X2, strict tort liability in the designing and marketing of the X2, breaches of the express warranty and the implied warranties of merchantability and suitability related to the X2's effectiveness, and violations of the Texas Deceptive Trade Practices Act
On July 27, 2017, Plaintiff timely amended her complaint.
On August 17, 2017, Defendant filed a motion to strike portions of Plaintiff's amended complaint, arguing that they contained "immaterial, inflammatory and superfluous statements that have nothing to do with Plaintiff's claims, and are solely intended to improperly cast TASER in a derogatory light and try this case in the media."
In April 2018, following a period of discovery and the exchange of reports by the designated experts, each party filed a motion to exclude certain expert testimony of the other side.
Plaintiff filed a motion to exclude the opinion expressed by three of Defendant's experts that the X2 is as effective as the X26 at stopping suspects.
Under the Federal Rules of Evidence and related case law, an expert may be qualified by "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. "[T]o qualify as an expert, the witness must have such knowledge or experience in his field or calling to make it appear that his opinion or inference will probably aid the trier in his search for truth."
If an opinion is based solely or primarily on experience, it "must be grounded in an accepted body of learning or experience in the expert's field." Fed. R. Evid. 702, advisory committee's note, 2000 Amends. The witness must connect the experience to the conclusion offered, must explain why the experience is a sufficient basis for the opinion, and must demonstrate the appropriateness of the application of the experience to the facts.
The expert's testimony must be both relevant and reliable.
To be relevant, the testimony must assist "the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. The Federal Rules of Evidence define relevant evidence as that which "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Fed. R. Evid. 401.
Reliability hinges on the sufficiency of the facts or data upon which the opinion is based, the dependability of the principles and methods employed, and the proper application of the principles and methods to the facts of the case.
The court's gate-keeping responsibility is not intended to infringe upon the adversarial process.
Plaintiff's motion seeks to limit the testimony of three of Defendant's designated experts: (1) Jeffrey Ho ("Ho"), a medical doctor who serves as Defendant's Medical Director and who developed the methodology and performed the testing on both the X26 and the X2; (2) Magne Nerheim ("Nerheim"), an electrical engineer who serves as Defendant's Vice President of Research and Technical Fellow; and (3) Dorin Panescu ("Panescu"), a biomedical scientist and expert in cardiac devices. Plaintiff "only seeks to exclude the opinions of both Dr. Ho and Dr. Nerheim that the X2 and the X26 have equivalent (or better) effectiveness, and the similar, more ambiguously expressed opinions of Panescu . . . regarding any related effectiveness between the X2 and previous models."
The court understands that the effectiveness of the X2 is a fact of consequence in this case. Without a doubt, the expert testimony of all three of these experts is relevant in that their opinions would help the jury determine the effectiveness of the X2 in comparison to the X26.
The court finds that Defendant has met its burden of demonstrating that Ho's methodology is reliable because it has been tested, has been published and peer reviewed, has statistical significance, and has been accepted by the University of Minnesota's School of Medicine. Based on that ruling, the reliability of the opinions of Nerheim and Panescu are not tainted by any purported reliance on Ho's methodology.
As to Panescu, "Plaintiff additionally requests that [he] be prohibited from referencing [American National Standards Institute, the Crane Power Line Standards Organization ("ANSI/CPLSO")] 17 in his testimony unless and/or until the [c]ourt is satisfied that this standard is a legitimate, publicly available, safety standard that was in effect when the X2 in issue in this case was designed and manufactured."
Defendant has also countered Plaintiff's challenge to the legitimacy of ANSI/CPLSO 17. As a reviewer for the ANSI/CPLSO, Panescu reviewed the standard prior to its adoption. According to Panescu, ANSI/CPLSO 17 is a safety standard applicable to high voltage CEWs used by law enforcement agencies. Panescu cited to the CPLSO website, which provides information about the standard, including the process by which standards are developed and general information about the background, research, and subject matter of the ANSI/CPLSO 17. By all appearances, ANSI/CPLSO 17 is a legitimate, publicly available (albeit not free), safety standard. Panescu cited to the 2017 version of the standard; if the standard was created after the X2 was designed and manufactured, Plaintiff can test its applicability to the X2 on cross-examination. If Defendant has not turned over a copy of the ANSI/CPLSO 17, it must do so or show cause why it is unable to do so.
Based on Plaintiff's motion to exclude, the court is confident that Plaintiff's counsel is more than capable of revealing any flaws or shortcomings of these experts' reports through cross-examination and the presentation of contrary evidence at trial. None of Plaintiff's concerns, however, warrants the exclusion of any expert opinions as each report meets the minimum threshold for admissibility under
Defendant's motion seeks to limit the testimony of Mark Jones ("Jones"), a political science professor, and Michael Leonesio ("Leonesio"), a former police officer with "hands-on professional experience using, testing, and forensically analyzing [electroshock weapon ("ESW")] performance."
Defendant contends that Jones does not have the training, knowledge, or experience to offer "medical/physiological or electrical engineering opinions on the effectiveness of the TASER X2 CEW, the central design issue in this case," including opinions drawn from a spreadsheet listing CEW deployments by HPD personnel between January 2011 and April 2016 that HPD identified as unsuccessful.
Plaintiff counters that Defendant is "attack[ing] Jones' qualifications to render opinions he does not intend to render in this case, and thereby attempts to seed doubt as to the reliability of the opinions that he will render, all of which are squarely within his professional expertise and the product of his unique experience with evaluating the City of Houston's use of TASERs."
The court agrees with the parties that Jones is not qualified to offer opinions on any scientific aspect of the X2, including its effectiveness and/or stopping power. Jones's experience with CEWs is limited to his participation as a researcher in a 2008 audit of X26E deployments between December 2004 and June 2007 with the purpose of examining police behavior and the impact of CEWs. Defendant concedes that Jones is qualified to discuss these research findings and, therefore, does not seek to exclude that portion of his testimony.
The problem area is Jones's testimony as to public policy/social utility "concerning the potential effect of arming police officers with less powerful TASERs."
Second, Jones's opinions are irrelevant if not tied to the X2. Jones is not qualified to make the determination that the X2 is less effective than the X26E, and he does not have the factual support for that conclusion. Third, his opinion on the societal impact of a less effective CEW will not help the jury reach a decision in this particular product-liability case because no claim is based on Plaintiff's or any other officer's confidence in the X2. Fourth, much of this portion of his testimony is not the substance of expert opinion. The jury is capable of reaching logical, common-sense conclusions about what could happen if police officers were armed with less effective CEWs and lost confidence in their use. Jones's societal-impact opinions are excluded.
Regarding Leonesio's testimony, Defendant does not seek to exclude opinions on Plaintiff's use of force or opinions on the testing performed on Plaintiff's X2 but does seek to exclude all of Leonesio's opinions that rely on expertise in medical and/or electrical engineering. Without a doubt, Leonesio is not qualified to offer opinions in those areas of expertise. Plaintiff agrees. The difference lies in what the two sides view as falling in that prohibited area of testimony. Although Leonesio has years of experience using and testing CEWs, he cannot serve as an expert on ultimately scientific topics, such as incapacitation performance, and he cannot formulate his own scientific opinions based on the medical or engineering work or opinions of others. If Plaintiff wants to rely on the work or opinions of others, she will need to find another way to get that into evidence. The court recognizes that the line between the subjects on which Leonesio may opine and those he may not is less than clear-cut and may require more specific rulings pretrial or from the bench.
Finally, Defendant moves to exclude the opinions of Jackson as improperly disclosed and unreliable. As Plaintiff's treating physician, who was not retained or specially employed to offer expert testimony, he was not required to provide a written report.
Defendant's motion for summary judgment seeks judgment in its favor on all of Plaintiff's claims.
Before addressing the merits of Defendant's dispositive motion, the court turns to the parties' objections to each other's statement of facts. Except for including the date on which HPD employed Plaintiff, the court did not rely on any of the evidence to which either party objected as irrelevant or hearsay. All objections to evidence are
Additionally, Defendant seeks a spoliation instruction related to Plaintiff's self-serving statements about post-deployment fighting that contradict her incident report and other prior statements. Plaintiff failed to disclose a second witness, a tow-truck driver who intervened to assist Plaintiff and who could provide testimony on this topic. Plaintiff explained that she did so "to do him a solid."
The spoliation doctrine allows a jury to draw an inference "that a party who intentionally destroy[ed] important evidence in bad faith did so because the contents of those documents were unfavorable to that party."
Despite the accusation, Defendant fails to point the court to actual evidence of bad faith or bad conduct, as opposed to suspicious motivations and appearances of impropriety. Plaintiff's actions were perhaps bad judgment and improper under HPD policies, but they occurred prior to the filing of this lawsuit and do not manifest bad faith or bad conduct. At the point that Plaintiff contemplated legal action, she attempted to include the tow-truck driver as a witness when she asked him to provide an affidavit. Absent evidence of bad faith, an adverse inference or any other sanction for spoliation is not warranted. The court finds summary judgment in Defendant's favor an inappropriate sanction in light of the evidence as a whole. Plaintiff's self-serving statements are not the only evidence of post-deployment fighting.
Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues.
With regard to Plaintiff's products-liability claims of negligence and strict tort liability, Defendant argues that Plaintiff has failed to produce evidence supporting her position on the "only two things this [c]ourt needs to decide:" (1) whether the X2 was underpowered as designed; and (2) whether Plaintiff and Walker engaged in any post-deployment "fighting to support a causal link between the X2 CEW and Plaintiff's alleged back injury."
The only challenges to these claims are factual ones. Restating Defendant's arguments, the court must determine whether Plaintiff has produced evidence that the X2 was underpowered/ineffective, particularly in comparison with the X26 and/or the Pulse, and that its ineffectiveness caused Plaintiff's back injury. As the parties agree that these factual issues are material, the court's duty in this regard is to determine whether Plaintiff has produced sufficient evidence to raise a genuine dispute. The court is bound by legal precedent to draw all justifiable inferences in Plaintiff's favor. As perhaps foreshadowed by the court's identification of disputed facts and inferences in a prior section of this memorandum, the court determines that Plaintiff's evidence raises genuine disputes as to both of these factual issues, albeit by the slimmest of margins.
Regarding the X2's effectiveness, Plaintiff primarily focuses on evidence of the comparative full pulse charges. The evidence supports her position that the full pulse charge is lower than the electrical output by either the X26 or the Pulse. Defendant concedes the full pulse charge is one factor in determining power and effectiveness, but produces evidence that it is not the only relevant measurement.
As to the X2's performance on that particular day, the evidence is conflicting on how long Walker was incapacitated. Plaintiff points to witness testimony that Walker got up immediately after deployment of the X2. Defendant's evidence suggests that Walker was incapacitated for the full five-second cycle. The court is not at liberty to make that determination.
The timeline vis-à-vis deployment of the X2 and the fighting is one aspect of causation. If no fighting occurred after deployment, Plaintiff's back injury was not caused by the (in)effectiveness of the X2. Plaintiff's theory of the timeline of the first trigger pull and physical engagement with Walker is supported by the data download from the X26. Defendant contends that the X26 needed to be synchronized to the correct time before creating a timeline. The court cannot simply take Defendant at its word that the X26's internal clock does not keep accurate time. Moreover, Davis's testimony does not provide clarification in that he recalled that Walker jumped up and ran to him after the first deployment had caused her to fall and hit her face and, subsequently, Plaintiff physically pulled Walker off of him. Thus, even though he reported that no fighting occurred after Walker ran to him, he did report that Plaintiff engaged Walker physically after deployment of the X2. In light of the evidence of conflicting timelines, the jury must decide which is accurate.
The other aspect of causation is whether the contact with Walker caused Plaintiff's back injury. Plaintiff's expert and the Federal Rules of Civil Procedure 35 physician both stated that such an injury could result from a physical altercation such as that between Plaintiff and Walker. But neither said so definitively. This evidence may be thin, but the court cannot resolve that factual dispute either.
This is not a case where the plaintiff failed to produce any evidence; rather, this is a case where the amount, weight, and credibility of the evidence is at issue. The court acknowledges that the evidence in this case is plagued by Plaintiff's purportedly poor recollection and changes in her account of the incident, however these are credibility issues. The jury will have to listen to all of the evidence and decide whom to believe. Here, the justifiable inferences could lead a reasonable jury to the conclusion that Plaintiff and Walker engaged in hand-to-hand combat after Plaintiff deployed the X2 and that Plaintiff's back injury resulted from that fight.
Plaintiff has met her summary judgment burden.
Reliance is an element of a claim for breach of an express warranty.
The implied warranties of merchantability and fitness may be disclaimed.
In this case, Defendant provided HPD with a copy of its limited warranty with the quote and also placed a copy of the limited warranty in each X2 box. It is undisputed that Plaintiff received the X2 assigned to her in the box with the warranty. In both places, the limited warranty was in bold typeface, making it conspicuous.
The DTPA exempts from its coverage any "cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the consumer of more than $500,000." Tex. Bus. & Com. Code § 17.49(g).
It is undisputed that the contract between Defendant and HPD for the sale of the X2's far exceeded that amount. Plaintiff responds with largely irrelevant generalizations about the purpose of the DTPA in protecting consumers from deceptive business practices. Plaintiff argues that the contract was between the City of Houston and Defendant, not Plaintiff and Defendant. The court does not find that argument helpful to Plaintiff's cause because it calls into question the already questionable assertion that Plaintiff is a DTPA consumer.
Relying on
That case is not factually analogous, and that court's legal justification therein is limited although it appears to rely on a finding that the transactions, in other words, the representation agreements were not sufficiently related to combine the consideration for purposes of the DTPA exemption.
In contrast, the purchase of numerous X2s by HPD pursuant to one contract that far exceeded the $500,000 limit clearly fits within the exemption's reach. Accordingly, Defendant met its burden of proof that it is entitled to summary judgment in its favor on Plaintiff's DTPA claim.
Based on the foregoing, the court
The record evidence refers to the X26E and the TASER X26 CEW ("X26"). It is unclear whether those are one and the same model. To avoid confusion, where the record specifically refers to the X26E, the court does so as well.
