In a divided 2-1 decision, the Sixth Circuit affirmed summary judgment for Taser related to failure to warn claims arising out of the death of an individual who had been tased.  Mitchell v. City of Warren.  Before reaching the merits, the majority opinion, written by Judge Sutton, provides an overview and history of Taser products.  Relevant to the case at hand, the majority discussed certain literature related to the potential risk of cardiac episodes as a result of being tased in the chest.  The Court, however, emphasized that generic knowledge of risk isn’t sufficient:  “The plaintiff must show that a manufacturer knew or should have known its product posed the particular risk at issue in case.”  On this point, the Court found plaintiff’s claims inadequate because it did not establish anything more than a possibility that the particular harm would occur:  “We have refused to rely on studies establishing that the product can possibly cause an injury to prove that a product probably caused the injury.”  Accordingly, after the surveying the evidence, the Court affirmed the failure to warn claim.

The plaintiff also argued that Taser had a post-sale duty to warn, but the majority rejected this claim as well:  “If Taser had no such duty to warn based on the pre-sale information available, it could not be liable if later studies suggested safer ways to design and market its products.”  The Court emphasized the statutory language in Michigan’s product liability statute and expressed an unwillingness to go beyond the contours of the statute to recognize plaintiff’s post-sale warning claim.

In dissent, Judge Donald criticized the majority’s portrayal of the facts, insisting that the majority “improperly usurps the role of the fact finder.”  Focusing on the pre-sale duty to warn, Judge Donald found the majority too quick to dismiss the record evidence bearing on the risk of harm.  Fundamentally, she claimed that the majority was setting the bar too high on a duty to warn:  “Simply because a particular risk does not boast medical certainty does not automatically render the risk speculative or theoretical.”  Judge Donald also relied extensively on a Fourth Circuit decision that the majority declined to follow.

Although confined to Michigan law, the competing analyses of duty to warn claims in the Sixth Circuit certainly carry relevance far beyond the instant opinion.  These opinions further illustrate the tension over what evidence suffices to show that a product likely caused the injury at issue, and whether those claims can reach a jury.