## Facts

- Samuel E. Powers, a longtime deputy sheriff, attended a required training and certification course to carry Taser International’s Advanced Taser M-26.
- Training materials described the M-26 as “less-lethal” and stated it had been tested without effects on heart rhythms and used on thousands of persons without long-term effects.
- The M-26 uses electro-muscular disruption intended to cause involuntary muscle contractions.
- As part of the training, Powers was required to be exposed to the device’s electrical force.
- During the exposure, Powers’s muscles contracted violently and he suffered a fractured spinal disc.
- Medical evaluation revealed severe osteoporosis; Powers was restricted to light duty and ultimately resigned.
- Powers sued Taser on a strict products liability theory for failure to warn, alleging inadequate warnings about the risk of serious musculoskeletal injury from the induced muscle contractions.
- Taser argued it did not know and could not reasonably have known, at the time of sale and injury, that the device could cause contractions strong enough to fracture a bone.

## Issues

1. Whether Arizona’s “hindsight test” for strict liability design defects applies to strict liability failure-to-warn claims, allowing post-sale knowledge to be imputed to the manufacturer.
2. Whether an offer of judgment conditioned on confidentiality complies with Arizona Rule of Civil Procedure 68 and can support Rule 68(d) sanctions.

## Decision

- The Arizona Court of Appeals affirmed the defense verdict for Taser.
- The court held the hindsight test does not apply to strict liability failure-to-warn claims; the jury properly considered what Taser knew or should have known at the time of sale.
- The court affirmed Rule 68(d) sanctions, holding that a confidentiality-conditioned offer of judgment can be a valid Rule 68 offer.

## Legal Principles

- In strict products liability failure-to-warn claims, the adequacy of warnings and the duty to warn are evaluated based on dangers the manufacturer knew or reasonably should have known at the time the product was sold.
- Arizona’s hindsight approach to design defect claims is not extended to failure-to-warn claims, where warning content is tied to then-available risk information.
- A manufacturer is not strictly liable for failing to warn of risks that were unknowable and not reasonably discoverable at the time of sale.
- An Arizona Rule 68 offer of judgment may include reasonable ancillary conditions, including confidentiality, if the offer remains sufficiently definite to permit comparison with the judgment for cost-shifting purposes.

## Conclusion

The court declined to impute later-acquired risk information to a manufacturer in a strict liability failure-to-warn case and held that a confidentiality condition does not invalidate an Arizona Rule 68 offer of judgment or preclude sanctions when the offeree fails to obtain a more favorable result.


Powers v. Taser Int’l, Inc., 174 P.3d 777 (Ariz. Ct. App. 2007)