UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORA MITCHELL, on behalf of herself

individually and as Personal Representative 

of the Estate of ROBERT MITCHELL,

Plaintiff,

Case No. 09-11480

v.

Hon. John Corbett O’Meara

TASER INTERNATIONAL, INC.,

Defendant.

___________________________________/

OPINION AND ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the court are the parties’ motions for summary judgment, both filed

on March 17, 2014, and both of which have been fully briefed. The court heard

oral argument on June 26, 2014, and took the matter under advisement. For the

reasons explained below, Defendant’s motion is granted.

BACKGROUND FACTS

Plaintiff Cora Mitchell is the mother of Robert Mitchell and the personal

representative of his estate. On April 10, 2009, Robert Mitchell died tragically at

age sixteen after Warren Police Officer Jesse Lapham discharged his “taser” into

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Mitchell’s chest and he suffered a cardiac arrest. Defendant TASER International,

Inc., manufactures the product used by Officer Lapham, the Model X26 conducted

electrical weapon (CEW).1

 Plaintiff alleges various theories of product liability

against TASER: failure to warn, gross negligence, negligence, express warranty,

and implied warranty. 

LAW AND ANALYSIS

I. Defendant’s Motion

A. Failure to Warn

In order to establish a prima facie case of negligent failure to warn of a

known danger, the plaintiff in a products liability action must show that “(1) the

defendant owed the plaintiff a duty to warn of the danger, (2) the defendant

breached that duty, (3) the defendant’s breach was the proximate and actual cause

of the plaintiff’s injury, and (4) the plaintiff suffered damages as a result.” Tasca

v. GTE Prods. Corp., 175 Mich. App. 617, 622 (1988). Plaintiff contends that

TASER was aware of the potential for a X26 shot to the chest to cause heart

arrhythmias and that TASER failed to warn of the danger. Defendant asserts that it

did not have a duty to warn of the “remote” cardiac risk and that, if it had, there is

1 Co-defendant Michigan Taser Distributing, Inc., has been dismissed by

stipulation.

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no evidence that Officer Lapham would have read or heeded such a warning.

1. Duty to Warn

Under Michigan law, a manufacturer is not liable for an alleged failure to

warn “unless the plaintiff proves that the manufacturer knew or should have known

about the risk of harm based on the scientific, technical, or medical information

reasonably available at the time the specific unit of the product left the control of

the manufacturer.” M.C.L. §600.2948(3). See also Glittenberg v. Doughboy

Recreational Indus., 441 Mich. 379, 389-90 (1992) (in order to have a duty to

warn, the manufacturer must have “actual or constructive knowledge of the

claimed danger”). TASER contends that as of the date the X26s were shipped to

the Warren Police Department – August 24, 2006 – it had “no knowledge of

human VF [ventricular fibrillation] risks from the use of its CEW products.” Def.’s

Br. at 16. 

In support of its argument that TASER knew of the risk of chest shots,

Plaintiff points to two articles that were published in July 2006 in the Journal of

the American College of Cardiology. See Pl.’s Ex. 9 (Lakkireddy/Tchou study)

and Ex. 11 (Nanthakumar study). Both studies tested the effect of an X26 on

cardiac rhythm in sedated pigs. In the Nanthakumar study, they analyzed 150

discharges, finding that discharges to the chest area of the pigs often resulted in

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“myocardial [heart muscle] stimulation and capture [pacing].” Pl.’s Ex. 9 at 3. 

After administering epineprhine to simulate stress, they induced ventricular

fibrillation (“VF”) once in one pig. Id.

The Nanthakumar study’s authors concluded that “[w]hen the discharge was

vectored across the chest, electrical and mechanical capture [pacing] of the heart

ensued.” Pl.’s Ex. 9 at 6. “We also found that discharges away from the chest did

not stimulate the heart or trigger arrhythmias.” Id. Among other study limitations,

the authors noted that “[t]he threshhold for induction of VF in pigs may be lower

than in humans, and the structural variation in the chest wall anatomy is another

limitation with regard to extrapolating our model to humans.” Id. at 7. The authors

concluded that “[t]his study suggests that NIDs [neuromuscular incapacitating

devices] may have cardiac risks that require further investigation in humans.” Id.

(emphasis added).

In response to criticisms of the study, Nanthakumar stated: “The main point

of our study was to demonstrate that electrical capture of the myocardium, under

specific circumstances, can occur after neuromuscular incapacitating device (NID)

discharge. . . .We agree that it is not possible to directly extrapolate our results to

NID use in humans. . . . We did not state that NIDs cause ventricular fibrillation in

humans, and we agree that we cannot conclude from our study that NID discharges

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cause arrhythmias in typical use. We hope that readers agree that our study does

suggest the possibility that NIDs may, in some circumstances, cause cardiac

capture, and that this possibility should at least be considered in future research in

humans.” Def.’s Ex. 48.

The Lakkireddy/Tchou study considered “cocaine’s effects on Taser-induced

ventricular fibrillation (VF) threshold in a pig model.” Pl.’s Ex. 9 at 1. It

concluded that “the presence of cocaine decreases the likelihood of NMI-induced

VF.” Id. at 5. They noted, however, that “[o]ur study is the first to describe capture

of ventricular myocardium during application of NMI pulses.” This data “suggest

the potential for induction of ventricular tachycardia [abnormal rapid heartbeat] in

subjects with substrate for ventricular tachycardia. . . .” and that “avoidance” of

discharges near the heart “would greatly reduce any concern for induction of

ventricular arrhythmias.” Id. However, “[o]ur study showed that VF could not be

induced using the standard 5-s Taser discharge applied to a pig’s body surface even

at the most sensitive area tested.” Id. at 5. “The results of our study and the few

prior animal studies would suggest that NMI discharge at the standard 5-s

application is unlikely to cause life-threatening arrhythmias, at least in the normal

heart.” Id. 

These studies do not establish TASER’s knowledge regarding the risk of VF

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or cardiac arrest in humans as a result of X26 shots to the chest. The Nanthakumar

study “suggests that NIDs [neuromuscular incapacitating devices] may have

cardiac risks that require further investigation in humans.” The Lakkireddy/Tchou

study found that a standard X26 discharge is “unlikely to cause life-threatening

arrhythmias, at least in the normal heart.” Tchou testified that “because of our

capture data, I would caution them [TASER] that there is some possibility that this

could induce ventricular arrhythmias in people.” Pl.’s Ex. 42 at 90 (emphasis

added). At most, these studies suggest a theoretical risk as of August 2006, when

TASER shipped the X26s to the Warren Police Department. This theoretical risk

is not sufficient to trigger a duty to warn under Michigan law. See Greene v. A.P.

Prods. Ltd., 475 Mich. 502, 504 (2006) (“We conclude that the statute imposes a

duty to warn that extends only to material risks not obvious to a reasonably

prudent product user. . . .”); M.C.L. § 600.2948(3) (manufacturer’s knowledge is

judged against the “scientific, technical, or medical information reasonably

available at the time” of sale).

Plaintiff contends, however, that TASER also had a post-sale duty to warn,

based upon subsequent studies and information that came to light after August

2006. See M.C.L. 600.2948(4) (“This section does not limit a manufacturer’s duty

to use reasonable care in relation to a product after the product has left the

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manufacturer’s control.”); Comstock v. General Motors Corp., 358 Mich. 163,

177-78 (1959). Plaintiff suggests that the Michigan courts would apply the postsale duty to warn test contained in Restatement (Third) of Torts Products Liability

§ 10. Michigan law does not, however, impose a post-sale duty to warn in this

context.2

In Comstock, the Michigan Supreme Court held that a manufacturer had a

post-manufacture duty to warn of latent defects once the manufacturer discovered

the problem. Comstock involved the failure of brakes in an automobile. The latent

defect was a manufacturing defect in a sealer that allowed brake fluid to escape. 

Shortly after sale of the vehicles, General Motors learned of numerous failures

attributed to defective sealers and directed its dealers to repair the brakes at no cost

to the vehicle owners. The Comstock court reasoned that “[i]f such duty to warn of

a known danger exists at point of sale . . . a like duty to give prompt warning exists

when a latent defect, which makes the product hazardous to life becomes known to

2 No Michigan court has adopted this Restatement provision, which is not

consistent with existing Michigan law as described below. See also Hoffner v.

Lanctoe, 492 Mich. 450, 478-79 (2012) (“We begin with the general observation

that this Court has never adopted wholesale the Restatement approach. While this

Court has looked to the Restatement for guidance, it is our caselaw, as developed

through the years, that provides the rule of law for this State.”). 

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the manufacturer shortly after the product has been put on the market.” 358 Mich.

at 177-78. 

Subsequently, the Michigan Supreme Court stated, regarding Comstock,

“[i]n the unique context in which the manufacturer acknowledged the existence of

a latent manufacturing defect, as evidenced by numerous failures and the offer to

repair, the Court imposed a duty to warn.” Gregory v. Cincinnati Inc., 450 Mich. 1,

18 (1995) (emphasis in original). A latent defect is “a defect present but unknown

and unforeseeable at the point of sale.” Id. at 20 n.22. The court further noted “we

. . . have never held that any postmanufacture duties can arise from subsequently

discovered knowledge unattributable to a defect at the time of manufacture.” Id. 

In this case, Plaintiff has not identified any latent manufacturing defect in

the X26, but rather contends that TASER knew or should have known of the risk

of chest shots. “Because latency is not at issue in this case, the premise recognized

in Comstock for imposing a duty to warn is lacking.” Id. at 22 n.25. See also Ray

v. Rheem Textile Sys. Inc., 2002 WL 433157 at *4 (Mich. App. Mar. 19, 2002)

(“Because the only recognized postmanufacture duty to warn in this state involves

latent defects, plaintiff’s failure to specify a latent defect was fatal to this theory of

recovery and the court properly excluded it.”); Blackburn v. Eagle Manuf. Co.,

1998 WL 2001199 at *4 (Mich. App. Mar. 20, 1998) (no postmanufacture duty to

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disseminate updated warnings). Accordingly, Michigan law does not impose a

post-sale duty to warn under these circumstances.

Plaintiff also argues that because TASER “assumed to act” by offering its

training program and training materials, it was required to do so with due care. An

analogous “negligent assumption of duty” theory has been rejected by the

Michigan Court of Appeals:

Plaintiff characterized this theory as a “negligent

assumption of duty” theory and argued that even if, as

defendant argued, defendant did not initially have any

postmanufacture duty to warn, it voluntarily assumed

such a duty by distributing to its dealers and distributors

the dealer bulletins and retrofit kits postmanufacture. 

The court excluded this theory of recovery on the basis

that there was no legal authority for this proposition. We

agree. Under Gregory, the law is clear that no

postmanufacture duty to repair, retrofit, or recall is

recognized in this state.

Ray, 2002 WL 433157 at *6. See also Gregory, 450 Mich. at 27 (“Although

Cincinnati forwarded nearly thirty mailings documenting various safety options,

this does not create such a unique or controlling relationship as to justify a duty to

repair or recall the product.”). Beyond the general proposition that, having

assumed to act, a person must do so with due care, Plaintiff has not presented

authority for the proposition that TASER’s training materials created a postmanufacture duty to warn under Michigan law.

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2. Proximate Cause

Moreover, even if a continuing duty to warn existed, Plaintiff has not shown

that updated warnings regarding chest shots would have been distributed to Officer

Lapham. Generally, “proximate cause is not established absent a showing that the

plaintiff would have altered his behavior in response to a warning.” Allen v.

Owens-Corning Fiberglas Corp., 225 Mich. App. 397, 407 (1997). See also Eiben

v. Gorilla Ladder Co., 2013 WL 1721677 at *17-18 (E.D. Mich. 2013) (Rosen,

C.J.) (no failure to warn claim where plaintiff testified that he did not read

warnings or owner’s manual before using ladder).

Although Officer Lapham received a full day of training from the Warren

Police Department regarding his X26 and received the product manual, the record

reflects that he did not see TASER’s PowerPoint presentation and did not recall

seeing any TASER warning document, including those effective March 1, 2007

and April 28, 2008. Ex. 21 at 16; Ex. 22 at 19-22. Thus, even if TASER had

provided a warning regarding the cardiac risk of chest shots, there is no evidence

that warning would have been distributed to Officer Lapham, given that he did not

see any of the other warning documents provided by TASER. See Bachtel v.

TASER Int’l, Inc., 747 F.3d 965, 972 (8th Cir. 2014) (“We conclude that there is no

genuine dispute on this record that Officer Baird would not have read any

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additional warning TASER may have added as to the cardiac danger of the X26

ECD in any of its product warnings or bulletins.”); Cf. Fontenot v. TASER Int’l,

Inc., 736 F.3d 318, 332 (4th Cir. 2013) (because police department issued

memorandum “relaying the additional safety information provided” by TASER,

jury could reasonably infer that additional warning would have been distributed to

and heeded by officers). 

Plaintiff’s contention that the WPD would have changed its training in

response to a chest shot warning is based upon speculation3

 and is belied by the

evidence in the record that WPD did not communicate the most recent warnings to

Officer Lapham and that WPD did not follow comprehensively the training

program that TASER provided (for example, by showing the PowerPoint

presentation). Had WPD done so, the jury could infer that new or additional

warnings would have been communicated to Officer Lapham. As the record

stands, there is no reasonable basis for such an inference. See id.

Because Plaintiff has not demonstrated a duty to warn or proximate cause,

she cannot sustain her negligent failure to warn claim as a matter of law.

3

 See Pl.’s Ex. 37 (Howell Dep. at 73-74) (“I’m saying I may have found that

information. I may have provided it to the sergeant. The sergeant may have given it to

the lieutenant, and he may have given it to the captain. Whoever writes the policies may

have then said, ‘Based on this, we’re going to rewrite our policy, and we’re going to do

this.’”).

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B. Gross Negligence

Absent a showing of negligence, Plaintiff’s gross negligence claim also fails. 

Gross negligence is defined as “conduct so reckless as to demonstrate a substantial

lack of concern whether injury results.” M.C.L. 600.2945(d). See also Xu v. Gay,

257 Mich. App. 263, 271 (2003) (“Evidence of ordinary negligence does not create

a question of fact regarding gross negligence.”). Given the court’s finding that

TASER did not have a duty to warn regarding the cardiac risk of chest shots,

Plaintiff cannot show that TASER was reckless in failing to do so.

C. Breach of Express/Implied Warranty

Defendant contends that Plaintiff’s breach of express and implied warranty

claims fail because it properly disclaimed any such warranties in its operating

manual:

TASER’S WARRANTY AS STATED ABOVE IS

THE EXCLUSIVE WARRANTY WITH RESPECT

TO THIS PRODUCT. TASER DISCLAIMS ANY

AND ALL OTHER WARRANTIES, WHETHER

EXPRESS, IMPLIED OR STATUTORY,

INCLUDING, WITHOUT LIMITATION, ANY

IMPLIED WARRANTIES OF

MERCHANTABILITY, DESIGN OR FITNESS FOR

A PARTICULAR PURPOSE OR ARISING FROM A

COURSE OF DEALING, USAGE OR TRADE

PRACTICE, OR ANY WARRANTY AGAINST

PATENT INFRINGEMENT.

Def.’s Ex. 17G at 23-25. Plaintiff suggests that this disclaimer, located at the end

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of the twenty-five page manual, is not conspicuous. See M.C.L. 440.2316(2)

(exclusion of implied warranty of merchantability must be “conspicuous”). The

disclaimer is clearly stated in capitals and bold print, however, and is consistent

with the statutory definition of “conspicuous”: “written, displayed, or presented

[so] that a reasonable person against which it is to operate ought to have noticed

it.” M.C.L. 440.1201(j) (“Whether a term is ‘conspicuous’ or not is a decision for

the court.”). The court finds that this disclaimer serves to disclaim any implied

warranty.

Express warranties are governed by M.C.L. 440.2313(1), which provides

that express warranties are created by “[a]n affirmation of fact or promise made by

the seller to the buyer which relates to the goods and becomes part of the basis of

the bargain. . . .” Id. Plaintiff has not provided evidence that promises regarding

cardiac safety were part of the “basis of the bargain” between WPD and TASER. 

See Heritage Resources, Inc. v. Caterpillar Fin. Servs. Corp., 284 Mich. App. 617,

634-35 (2009) (“An express warranty may be created only between a seller and a

buyer, and any such express warranty becomes a term of the contract itself.”). 

Accordingly, Plaintiff’s warranty claims are subject to dismissal. 

ORDER

IT IS HEREBY ORDERED that Defendant’s motion for summary judgment

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(Docket No. 191) is GRANTED. Judgment will be entered in favor of Defendant

TASER International, Inc.

IT IS FURTHER ORDERED that Plaintiff’s motion for partial summary

judgment (Docket No. 192), Plaintiff’s motion to amend complaint (Docket No.

230), Defendant’s motions to exclude expert testimony (Docket Nos. 189, 190,

196), and Defendant’s motion to strike exhibits to Plaintiff’s summary judgment

response (Docket No. 247) are DENIED AS MOOT.

s/John Corbett O’Meara 

United States District Judge

Date: July 23, 2014

I hereby certify that a copy of the foregoing document was served upon

counsel of record on this date, July 23, 2014, using the ECF system.

s/William Barkholz 

Case Manager

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