1

Indeed, Martinez testified that FWPD officers had been

called to the home for domestic disputes on fifteen prior

occasions.

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MARTHA ELSHOLTZ §

§

VS. § ACTION NO. 4:05-CV-487-Y

§

TASER INTERNATIONAL, INC. §

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT

Pending before the Court is Defendant's Motion for Summary

Judgment [document number 94]. Also pending before the Court are

Defendant's Objections to Plaintiff's Summary-Judgment Response

Evidence and Motion to Strike [document number 117]. After

consideration of these motions, the related briefs, the evidence

highlighted therein, and the applicable law, the Court concludes that

both motions should be GRANTED.

This case arises out of the fatal shooting of plaintiff Martha

Elsholtz's adult son, Gary, by Fort Worth Police Department ("FWPD")

officer Nestor Martinez on December 7, 2003. On that date, Elsholtz

called the police to her home due to a disturbance that was being

caused by Gary, who was mentally ill and off his medications, hoping

that the police would assist her in taking Gary to the hospital for

treatment. This was not the first time Elsholtz had been forced to

call the police to her home due to her son's behavior.1 When police

arrived on this particular occasion, however, Gary grabbed a steak
ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 2

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knife from the kitchen and barricaded himself in a bedroom. FWPD

lieutenant Scott Conn decided to force the bedroom door open and,

if necessary, attempt to subdue Gary with his taser, a M26 taser

designed by defendant Taser International, Inc. ("TII"). Conn told

officer Martinez to cover him with Martinez's firearm while he was

attempting to subdue Gary in case something went wrong. When Conn

forced the bedroom door open, Gary rose from the bed with the knife

in his hand. As a result, Conn pointed his M26 taser at Gary's chest.

When Gary saw the red laser beam on his chest, he said, "'What are

you going to do, shoot me?". (Elsholtz's App. [doc. 59-7] at 31.)

Conn fired the taser, but it did not deploy. Conn fired the taser

a second time, but it again failed to deploy. While Conn was

attempting to determine what was wrong with the taser, Gary came

toward him with the knife. Martinez told Gary to put the knife down,

but when Gary failed to do so and continued to approach Conn, Martinez

fatally shot Gary. 

Elsholtz brought this suit against TII claiming strict products

liability, negligence, breach of implied and express warranties, and

fraudulent concealment. Elsholtz contends that Conn's M26 taser

malfunctioned because of a problem with the nickel metal hydride

("NiMH") rechargeable battery being used in the taser. Specifically,

Elsholtz contends that the M26 taser contained a design defect because

the battery-indicator light did not work with NiMH batteries.

Elsholtz also contends that the battery charger TII designed to use

with the M26 taser's NiMH battery was designed defectively because

it did not maintain the battery at a full charge, even though the
2

Elsholtz's amended complaint also asserts that TII is

strictly liable for or engaged in negligence in the manufacture

of the M26 taser and its battery-charging system, but she has

apparently abandoned that claim. See Elsholtz's Resp. to TII's

Mot. for Summ. J. at 13 ("[Elsholtz] asserts that TII is liable

for the defective design and marketing of the Taser M-26 and

Taser battery charger products.")

3

The Court concludes that the objections included with the

motion to strike should be sustained to the extent TII objects to

averments made in the affidavit of Elsholtz's expert witness,

Stanley Buchanan, regarding comments made by Conn during a

conversation Buchanan had with Conn. Those comments are clearly

hearsay when offered through Buchanan. The motion is denied,

however, regarding the objections to Noonkester's affidavit. 

TII's global objection to Noonkester's affidavit does not

adequately demonstrate that the entire affidavit is, as TII

contends, a sham or conclusory.

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 3

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charger indicated that the battery was fully charged. Elsholtz also

claims that TII is strictly liable for or engaged in negligence in

the manner in which it marketed the taser and battery charger because

it failed to give sufficient warnings that the M26 taser's batteryindicator light would not work with NiMH batteries or that the battery

charger would not fully charge the NiMH battery.2 Elsholtz further

contends that TII breached express warranties and the implied warranty

of merchantability by designing and marketing the charger and taser

in unreasonably dangerous conditions. Finally, Elsholtz claims that

TII engaged in fraudulent concealment by failing to disclose all of

the known material risks of the M26 taser when outfitted with

rechargeable batteries.

TII's motion to strike seeks relief regarding one of Elsholtz's

expert witnesses, Stanley Buchanan, an electrical engineer.3

Buchanan's report contends that the NiMH battery did not fully charge

or maintain its charge while on TII's battery charger, which caused
ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 4

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the failure of Conn's M26 taser to deploy. TII objects to Buchanan's

proposed testimony and report on a number of grounds, one of which

is that his testimony is not reliable because his methodology is not

disclosed. See TII's Objs. to Elsholtz's Mot. Summ. J. Resp. Evid.

[doc. 117] at 2. Although no brief was submitted in support of the

motion to strike, the Court presumes this to be an objection under

Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. In

accordance with those authorities, testimony from an expert witness

may only be admitted if the court, acting as a gatekeeper, concludes

the testimony "is the product of reliable principals and methods"

that have been applied "reliably to the facts of the case." FED.

R. EVID. 702(2) & (3); see also Daubert, 509 U.S. at 592-93 (courts

must make a "preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid and of

whether that reasoning or methodology properly can be applied to the

facts in issue"). The burden of proof in this regard is on the

proponent of the testimony:

the party seeking to have the district court admit expert

testimony must demonstrate that the expert's findings and

conclusions are based on the scientific method, and,

therefore, are reliable. This requires some objective,

independent validation of the expert's methodology. The

expert's assurances that he has utilized generally accepted

scientific methodology is insufficient. . . . The proponent

need not prove to the judge that the expert's testimony

is correct, but she must prove by a preponderance of the

evidence that the testimony is reliable.

Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

After thorough review of Buchanan's report and affidavit, the
4

For example: "Investigation of the Taser schematic for the

battery charger and comparison with the TI data sheet for the

bq2004H further shows that the resistor combination of R22 and

R24 are not designed properly and set according to specifications

and design equations in Unitrode/TI data sheet for the bq2004H." 

(Elsholtz's App. [doc. 60-3] at 81.)

5

For example, Buchanan contends that Defendant's expert, Max

Nerheim, "has made several significant misleading and/or

incorrect statements concerning the Taser battery charger

operation," including the fact that "he circles 'C divided by 32'

as top off charge." (Elsholtz's App. [doc. 60-3] at 80.) In

support of that proposition, Buchanan cites to "Exhibit 68." 

(Id.) If the "[e]xhibit 68" to which Buchanan refers has been

included in the parties' appendices, Elsholtz has failed to

specifically point it out to the Court. Similarly, Buchanan

cites to the "Taser schematic of their battery charger," (id.),

for support for his proposition that Nerheim's statements are

erroneous; but Elsholtz has failed to specifically point the

Court to that document as well. "Judges are not like pigs,

hunting for truffles buried in briefs." U.S. v. Dunkel, 927 F.2d

955, 956 (7th Cir. 1991). Rule 56 "does not impose on the

district court a duty to sift through the record in search of

evidence to support a party's opposition to summary judgment." 

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th

Cir.), cert. denied, 506 U.S. 825 (1992). Instead, parties

should "identify specific evidence in the record, and . . .

articulate the 'precise manner' in which that evidence support[s]

their claim." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994). 

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 5

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Court concludes that Elsholtz has failed to adequately demonstrate

that Buchanan's proposed testimony is reliable. A large impediment

to finding Buchanan's proposed testimony admissible is the fact that

the Court has had to struggle to make sense of his report. Buchanan

apparently did not write the report with the reader in mind,

particularly one uneducated in the area on which he opines.4

Furthermore, he cites to documents that have not, at least as best

as the Court can tell, been included in Elsholtz's appendix and/or

highlighted in Elsholtz's brief in response to the motion to strike.5

Most problematic, however, is the fact that although Buchanan
6

For example, Buchanan's report states in conclusory fashion

that "[t]he 3 mA trickle charge of the Taser battery charge[r]s

is also a number measured by myself on two (2) separate Taser

chargers, which I tested." (Elsholtz's App. [doc. 60-3] at 80.)

7

And, at least some of the details Buchanan provides about

his assumptions lead the Court to question the reliability of his

opinions. Buchanan's report indicates that he relied on

Energizer's alleged "published self-discharge (temperature

effects) characteristics." (Pls.' App. [doc. 60-3] at 79.) He

contends those published characteristics "show that approximately

40 percent of the full 100% capacity of the battery will be lost

in 20 days at a temperature of 40NC (104NF)," a temperature he

later characterizes as a "slightly warm condition." (Id.) The

Court generally does not consider 104 degrees Farenheit as only

'slightly' warm and suspects that such heat has rarely, if ever,

been experienced in Texas in December. In any event, Elsholtz

has certainly not demonstrated that it was anywhere close to 104

degrees in Conn's vehicle on or immediately prior to December 7,

2003, the date Gary was fatally shot.

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 6

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contends that he tested two of TII's battery chargers, he wholly fails

to provide any details regarding those tests.6 This Court simply

cannot determine whether an expert's opinions are reliable when he

fails to provide any details regarding the methodology he used to

conduct the tests that give rise to those opinions.7 Regarding his

methodology, Buchanan's report states as follows:

I subscribe to the scientific method of factual investigation. I have previously been trained to properly utilize

equipment pertinent to an electrical engineer. I have been

previously trained and educated in the use of the essential

testing equipment to verify my scientific observations to

support my conclusions and opinions. I have done no less

in this instance.

(Elsholtz's App. [doc. 60-3] at 80.) Buchanan's ipse dixit that he

has engaged in scientific methodology using unidentified electrical

engineering equipment does not, however, demonstrate that his opinions

are reliable.

And, Elsholtz's response to the motion does little to aid the
8

See, for example, Elsholtz's response at 4 ("[t]he tests

performed used scientific methodologies and scientific equipment

which provided unbiased empirical data," and "[w]hat is

determinative is the unbiased empirical data obtained from

[Buchanan's] objective testing of the M-26 Taser used in this

incident"); at 5 {"[t]he scientifically obtained unbiased

empirical data demonstrates that . . . ."); at 6 ("Buchanan's

opinions are primarily founded upon the unbiased empirical data

obtained from the scientific testing that he performed on the

equipment.").

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 7

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Court's understanding of Buchanan's proposed testimony. Initially,

Elsholtz wholly misplaces the burden of proof on the issue: 

[TII] offers no evidence that Mr. Buchanan's test results

are inaccurate, and does not provide any scientific

materials or evidence to indicate Mr. Buchanan's testing

methodologies were in any manner in error. [TII] fails

to cite this Court to a single article, document, or text

indicating that Mr. Buchanan's methods are incorrect." 

(Elsholtz's Resp. to TII's Objs. and Mot. to Strike at 3.) Of course,

had TII presented such information, that certainly would have been

compelling. But, it is not TII's burden to do so; rather, it is

Elsholtz's burden to show that her expert's methodology is reliable

and has been reliably applied to the facts of the case. 

Elsholtz has failed to carry this burden. Her response to TII's

motion to strike contains little more than conclusory assurances that

her expert is worthy of confidence. Elsholtz's response contends

that "Buchanan used specific empirical scientific measuring

equipment[] that is not subject to bias." (Id. at 4.) Her response

repeatedly makes similar claims,8

 but she never actually explains

what equipment Buchanan used, why or how it was used, and what the

precise results of his tests were. Because the Court cannot conclude

that Buchanan's testimony is the product of reliable principles and
ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 8

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methods that have been applied reliably to the facts of the case,

his testimony must be excluded. As a result, Elsholtz's claims

concerning the battery charger fail because Elsholtz has presented

no other evidence that the charger was defective.

As for the taser's battery-indicator light, TII admits that the

light did not function properly with NiMH batteries. Elsholtz

contends that this condition--a battery-indicator light that did not

work with the TII-approved NiMH batteries--constituted a defect in

TII's taser. In order to prove that a product's design was defective,

however, a plaintiff must show that a safer alternative design

existed. See TEX. CIV. PRAC. & REM. CODE ANN. § 82.005 (a)(1) (Vernon

2005). To prove that a safer alternative design existed, a plaintiff

must show that the proposed alternative "was economically and

technologically feasible at the time the product left the control

of the manufacturer or seller by the application of existing or

reasonably achievable scientific knowledge." Id. § 82.005 (b)(2).

In support of her contention that a safer alternative design

was available at the time the M26 taser was manufactured, Elsholtz

relies on Buchanan's affidavit. Buchanan states that "[a]t the time

of the design and manufacture of the M26 in question, battery level

indicators, which functioned properly with NiMH batteries, existed."

(Elsholtz's App. [doc. 77] at 188.) Buchanan then refers to two

battery indicators from Texas Instruments and quotes the attributes

of these batteries as listed on Texas Instrument's website, presumably

as that site existed on the date his affidavit was signed--August

21, 2006. There is no specific, nonconclusory evidence demonstrating
9

Buchanan avers that use of these indicators on the M26 with

NiMH batteries "would have been . . . feasible," (Elsholtz's App.

[doc. 77] at 189), but he does not elaborate.

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 9

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that these indicators were available on the date the M26 used by Conn

was manufactured or that they could have safely and effectively been

used with that device.9 As a result, Elsholtz's design-defect claims

regarding the battery-indicator light also fail.

TII is entitled to a summary judgment on Elsholtz's defectivemarketing claims as well. "'A product may be unreasonably dangerous

if a manufacturer fails to warn of a foreseeable risk arising from

the use of the product, and the lack of adequate warnings or

instructions renders an otherwise adequate product unreasonably

dangerous.'" McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403,

427 (5th Cir. 2001) (quoting Coleman v. Cintas Sales Corp., 40 S.W.3d

544, 549-50 (Tex. App.--San Antonio 2001, no writ). To sustain such

a claim, a plaintiff must prove: "(1) that there was either an

inherent risk associated with use of the [product] or a risk that

might arise from a use that was intended or reasonably anticipated

at the time of the sale; (2) that [the manufacturer] either knew or

should have foreseen the risk of harm; (3) that [the manufacturer]

failed to provide any warning or failed to provide an adequate warning

of the danger when the [product] was sold; (4) that [the manufacturer's] failure to warn rendered the [product] unreasonably

dangerous; and (5) that [the manufacturer's] failure to warn was the

producing cause of [the plaintiff's] injuries." Id. Even assuming

the M26 contained a foreseeable risk of harm, Elsholtz has failed
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to present any evidence tending to suggest that TII failed to issue

appropriate warnings about that risk. Indeed, all evidence suggests

the contrary. TII issued training bulletins warning users that "[t]he

battery indicator is not compatible with NiMH batteries and will not

function properly," (TII's App. [doc. 96] at 95), and provided

instructions about how to properly test the NiMH's charge. Similar

warnings and instructions were provided in the M26 taser's training

manual, including the warning that "BATTERY FAILURES WITH RECHARGEABLE

BATTERIES IN OLDER TASERs HAVE RESULTED IN FATALITIES BECAUSE OFFICERS

HAD TO USE LETHAL FORCE." (Id. at 110 & 115.) Conn's FWPD training

officer testified that TII advised him that the indicator light might

not work properly with NiMH batteries, and that based on his training,

Conn should have known that as well. (Id. at 25-26, 28.) Elsholtz

has not presented any evidence suggesting that TII failed to issue

adequate warnings of the battery-indicator light's failure to properly

work with NiMH batteries, and thus her marketing-defect claims fail.

Finally, Elsholtz fails to address her breach-of-warranty and

fraudulent-concealment claims. As noted in TII's briefs, Elsholtz's

implied-warranty-of-merchantability claim fails because she has not

presented competent evidence of a defect in either the charger or

the taser. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W. 2d 442,

444 (Tex. 1989) ("proof of a defect is required in an action for

breach of implied warranty of merchantability"). Her express-warranty

claim is unavailing inasmuch as she was not the purchaser of TII's

product, and therefore no privity exist. Privity is required for

an express-warranty claim. See Lujan v. Tampo Mfg. Co., Inc., 825
10As TII notes, "[f]raudulent concealment is an equitable

doctrine that, when properly invoked, estops a defendant from

relying on the statute of limitations as an affirmative defense." 

Casey v. Meth. Hosp., 907 S.W. 2d 898, 903 (Tex. App.--Houston

[1st Dist.] 1995, no writ). TII thus moved for summary judgment

to the extent Elsholtz asserts a common-law fraud claim. See

TII's Mot. Summ. J. at 24; Kawecki v. Int'l Bank of Commerce, No.

14-01-01025-CV, 2003 WL 21782345, at *1, n.3 (Tex. App.--Houston

[14th Dist.] 2003, no writ).

ORDER GRANTING MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT - Page 11

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S.W. 2d 505, 511 (Tex. App.--El Paso 1992, no writ); Tex. Processed

Plastics, Inc. v. Gray Enters., Inc., 592 S.W. 2d 412, 415 (Tex. Civ.

App.--Tyler 1979, no writ). And, with regard to Elsholtz's

"fraudulent-concealment" claim,10 she simply has failed to present

any evidence tending to demonstrate that TII engaged in any material

misrepresentations. See Bradford v. Vento, 48 S.W. 3d 749, 754 (Tex.

2001) (noting that "[f]raud occurs when . . . a party makes a material

misrepresentation").

As a result, TII's motion to strike Buchanan's testimony is

granted, and summary judgment is granted in TII's favor on all of

Elsholtz's claims.

SIGNED September 25, 2007.