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Jeff Kandt v. Taser International

July 10, 2012

JEFF KANDT, PLAINTIFF,
v.
TASER INTERNATIONAL, INC., DEFENDANT.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

Presently before the court in this products liability action is a motion for summary judgment by defendant, Taser International, Inc. ("Taser") against plaintiff, Jeff Kandt ("Kandt"). Kandt opposes, and Taser replies. Also pending are several motions in limine by both parties as well as a motion by Kandt to strike certain of Taser's affirmative defenses. Those motions are fully briefed as well.*fn1

Decision on the motion for summary judgment is rendered based solely on the parties' submissions without oral argument. Due to the disposition of Taser's motion for summary judgment, the remaining motions are denied as moot.

II. Factual Background

Plaintiff Kandt is a deputy with the Oswego County Sheriff's Department ("OCSD") who was injured on May 29, 2007 during a training exercise in the use of the TASER® model X26TM, an electronic control device ("ECD") manufactured by defendant, Taser. Although not required for user certification by Taser, OCSD adopted a policy that any deputy who wanted to carry a Taser ECD must experience an ECD exposure during the user training. Kandt claims that an exposure he received during training caused vertebral compression fractures, permanent burn marks and short term memory loss.

The training was presented by OCSD Sergeant Thomas Ravesi ("Ravesi"), a 19-year veteran who is an experienced law enforcement trainer in firearms, defensive tactics, ASP expandable batons and OC (pepper) spray. At the request of his lieutenant, Ravesi underwent Taser's X26/M26 two-day instructor training course, which was paid for by OCSD. Other than attending the instructor training course, Ravesi never had any kind of relationship with Taser, and has never received any compensation from Taser.

Ravesi presented the user training course to Kandt and eleven other OCSD deputies on May 29, 2007. During the training, Ravesi used Taser's copyrighted materials, including the TASER® model X26TM User Course Version 13 Power Point presentation. Included in the materials used is a form that Kandt read and freely signed, entitled, "Volunteer Warnings, Risks, Liability Release and Covenant not to Sue." Ex. 2 to Decl. of Patrick W. Smith, Sept. 30, 2011, Dkt. No. 69-2. This form includes a paragraph entitled, "Strain Injury Risks," which reads as follows:

It is possible that the injury types may include, but are not limited to, strain-type injuries such as hernias, ruptures, dislocations, tears, or other injuries to soft tissue, organs, muscles, tendons, ligaments, nerves and joints. Fractures to bones, including vertebrae, may occur. These injuries may be more likely to occur in people with pre-existing injuries or conditions such as pregnancy, osteoporosis, spinal injuries, diverticulitis, or in persons having previous muscle, disc, ligament, joint, or tendon damage. It is believed that the risk of these injuries is comparable to or less than the risk(s) from vigorous physical exertion, such as weight training, wrestling, or other intense athletic endeavors.

Id. Kandt testified that he read and understood the above warning prior to his ECD exposure on May 29, 2007. However, in opposition to Taser's motion for summary judgment, Kandt submitted an affidavit explaining that despite reading and understanding the above warning, and signing the form entitled, "Volunteer Warnings, Risks, Liability Release and Covenant not to Sue," prior to receiving his ECD exposure, he believed that he "could experience some soreness similar to engaging in physically challenging activity but that such soreness would be temporary" and he "did not perceive any risk in taking an exposure." Aff. of Jeff Kandt, Jan. 16, 2012, ¶¶ 4, 6, Dkt. No. 77-7.

III. Procedural Background

Kandt commenced this action against Taser, setting forth five causes of action. By Kandt's opposition to Taser's motion for summary judgment as to the entire complaint, Kandt concedes that certain of his claims "do not have merit" and that "the facts and testimony in this case ha[ve] rendered plaintiff's breach of warranty, fraud, and design defect (as it pertains to anything other than failure to warn) claims moot." Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J., at 3, 6, Dkt. No. 79. Kandt goes on to explain that this case is "one solely of failure to warn based on a strict products liability doctrine." Id., at 6. Accordingly, the court addresses Taser's motion for summary judgment solely regarding Kandt's failure-to-warn claim and deems all remaining claims in the complaint withdrawn, and therefore dismissed with prejudice.

IV. Discussion

A. Summary Judgment ...


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