Russell v. Wright (916 F. Supp. 2d 629, 2013)

MEMORANDUM OPINION

GLEN E. CONRAD, Chief Judge.

This case involves claims brought by Anita Russell, the representative of Daniel Russell, against Deputy Denney Wright and TASER International, Inc. The claims against Wright are for the use of excessive force in violation of the United States Constitution, state law claims for gross negligence and assault and battery, and a claim seeking punitive damages. The claims against TASER are for breach of the implied warranties of merchantability and fitness for a particular purpose, failure to warn, a general negligence claim, and a claim for punitive damages. For the reasons that follow, Deputy Wright’s motion for summary judgment will be granted in full, and TASER’s motion for summary judgment will be granted in part and denied in part.

CLAIMS AGAINST DENNEY WRIGHT

I. Factual Background

A. The Incident

Late in the evening on October 30, 2010, Appomattox County Sheriffs Deputy Denney Wright was speaking with Deputy John Mattox in the Appomattox High School parking lot. At 11:41 p.m., Mattox and Sergeant Christopher Samms were dispatched to a call at 7724 Red House Lane, Appomattox County. They were responding to a 911 call received from Andrew Russell (Daniel Russell’s 16 year old son), reporting injuries to his younger brother sustained in a fight with the decedent. Andrew reported that his brother had been kicked in the ribs, and that the injury “looked bad.” Since Wright was with Mattox, he radioed in that he would respond to the call as well. Wright and Mattox proceeded to the residence in their marked vehicles, and before arriving were told that Daniel Russell was leaving the house in his Chevy pickup and that he had been drinking. Dispatch asked Andrew if his father had any weapons on him and Andrew reported that he did not, but this information was never conveyed to the officers.

Accompanying defendant TASER’s motion for summary judgment is an “aligned” video of the incident that was prepared by Grant Fredericks, an expert in video analysis. The video shows footage from three sources: Mattox’s and Wright’s dashboard cameras, and a camera inserted into the TASER-manufactured X26 device. Mr. Fredericks synchronized the footage from the three cameras so that they can be viewed simultaneously.

As Wright and Mattox approached the Russell residence, they saw Russell pull out of the driveway in his truck and head in the opposite direction. Both officers immediately activated their lights and sirens and proceeded to follow Russell. They pursued him for roughly .6 or .7 miles. (Mattox Dep. at 59.) Mattox reported that they were going about 60 miles an hour, and that Russell passed numerous driveways and areas where he could have safely pulled off the road. (Id. at 58.) The plaintiff asserts that Russell pulled over in the first safe location, an empty parking lot on the left side of the road. Wright testified that he did not know whether Russell was exceeding the posted speed limit. (Wright Dep. at 232.) The video shows that from the moment the officers activated their lights to the moment Russell began applying his brakes to pull over, roughly 50 had seconds elapsed.

Mattox pulled into the parking area behind Russell, who immediately exited his truck and started walking toward the officers. Wright and Mattox both testified that this was unusual for a driver who is pulled over in Appomattox County, although they acknowledged it is not illegal. (Wright Dec, ¶ 6; Mattox Dec. ¶ 4.) As Russell walked toward Mattox, he held his hands above his head, palms facing out. Russell was wearing a t-shirt underneath an unbuttoned and untucked over-shirt. The officers testified that they could not tell whether Russell was armed because they could not see his waistband or the small of his back. (Wright Dep. at 160; Mattox Dep. at 68.)

By that point, Wright had exited his vehicle as well. Mattox drew his firearm and aimed it at Russell. Wright approached Russell from the side with his taser trained on Russell’s chest. The laser dot from the device can be seen on Russell’s chest in the video. Mattox shouted at Russell to “get down — get down on the ground,” a number of times. Mattox testified that because his car’s siren was still activated, he shouted his commands to be sure they could be heard. (Mattox Dep. at 62.) The commands are clearly audible in the video. Wright and Mattox both testified that they believed Russell could hear his commands, although they acknowledge it was loud and that they could not hear everything Russell said. (Wright Dep. at 160; Mattox Dep. at 67-68). Russell remained standing as Mattox repeatedly shouted for him to get down on the ground. After a couple of seconds, Russell dropped his hands to his sides.

The video then captures Mattox telling Wright to “tase him.” The video also shows Russell saying something to the officers, although exactly what was said is disputed by the parties. Wright and Mattox testified that Russell said, “go ahead and shoot me.” (Wright Dep. at 123; Mattox Dep. at 71.) Grant Fredericks, TASER’s video expert, opined that Russell said, “why don’t you just tase me?” (Fredericks Dec. at 14.) The plaintiffs expert, Geoffrey Alpert, Ph.D., testified that Russell may have been asking the officers “are you going to tase me?” but that he could not tell what was actually said. (Alpert Dep. at 34.)

Dr. Alpert also testified that he did not think Russell was acting in an aggressive or threatening manner, and that in his view Russell was simply trying to communicate to the officers, a communication that likely failed due to the noise from Mattox’s siren. (Id. at 34-35.)

Deputy Wright testified that immediately before he deployed the taser, Russell took a step toward them and was getting ready to take another step. (Wright Dep. at 157-59.) Wright then triggered his device using a single five second cycle, striking Russell directly in the chest. Wright testified that he was roughly fifteen feet from Russell when he tased him. (Id. at 102-03.) Approximately 17 seconds elapsed from the time Russell exited his truck until Wright deployed the taser.

Upon being struck, Russell’s body stiffened and he fell to the ground. The deputies approached and handcuffed him and performed a pat down. Russell appears to struggle somewhat while being handcuffed, and is heard making loud, guttural breathing sounds for at least the next 48 seconds. The officers then noticed that Russell had become nonresponsive, and they began yelling “hey buddy, hey buddy” at him in an attempt to revive him. Mattox requested that the rescue squad that was en route to Russell’s residence be diverted to the scene. The officers administered a sternum rub and utilized an AED, which indicated that CPR was necessary. They continued CPR until the rescue squad arrived. At some point, Russell went into cardiac arrest. The rescue workers managed to restart his heart, but Russell had gone without oxygen for over eight minutes, causing severe brain damage. He fell into a coma and died six months later. Prior to the incident, Russell had a history of heart trouble, as well as alcohol and drug use. (Hardison Dep. at 95.) Russell had suffered two heart attacks, one in 2008, and another in 2009, and was under doctors’ orders to stop using drugs and alcohol, both of which increased his risk of sudden cardiac arrest. (Russell Dep. at 42-43.) Toxicology reports taken in the emergency room on the night of the incident indicated that Russell had a BAC of 0.17 and had marijuana in his system. (Hardison Dep. at 93.)

B. Wright’s Background and Training

From 2005 to early 2009, Wright worked at the Appomattox County Jail. As part of his training for that position, he learned defensive tactics, including holds and take-downs. (Wright Dep. at 16-19.) When Wright went to work for the Appomattox County Sheriffs Office (“ACSO”) as a deputy in 2009, he received an additional six months of training at the Central Virginia Criminal Justice Academy. (Id. at 29-30.) Wright also received training on the Use of Force Policy (the “Policy”) adopted by the Sheriffs Office. The Policy states that:

Except for deadly force, the application of any degree of force is justified only when the officer believes it is reasonably necessary: ... Officers may resort to more severe methods of force to overcome ... increasing resistance.

The escalation in the use of force typically follows a pattern: verbal control, compliance techniques (control holds), chemical weapons, defensive tactics (including impact weapons such [batons]), and finally deadly force. Officers must understand how to recognize increasing or decreasing levels of threat and respond appropriately.

When applying deadly force, the officer’s objective shall be to stop or incapacitate the suspect. The objective use of any force is to overcome the suspect’s resistance to an officer’s lawful purpose: officers shall avoid unnecessary or excessive applications of force.

(Pi’s Ex. M.)

The Policy has specific instructions on the use of tasers:

It is the policy of the Appomattox County Sheriffs Office to authorize the Taser as a use of force option. The Taser is considered a non-lethal use of force. Definitions:

Passive Resistance: A person who exhibits no resistive movements in response to verbal or other directions by the officer.

Active Resistance; A person who exhibits resistive movements to avoid physical control or arrest.

1. Authorization:

a.Only Officers who have completed the prescribed course of instruction on the use of the Taser are authorized to carry or utilize the Taser.

3. Deployment of the Taser:

a. Taser is a force option listed at the same level as OC (Pepper Spray).

b. Handle the Taser like you would a loaded weapon.

c. The preferred target area when deploying a Taser should be center mass of the body. The face, neck, and groin area are to be avoided if at all possible....

d. Whenever a Taser is to be deployed the officer should make other officers on the scene aware that the Taser is being deployed by announcing “TASER” several times.

4. Usage Criteria

a. The Taser may be deployed when a person is exhibiting passive resistance only when a lesser means of force has been attempted and failed and the officer is attempting to make a custodial arrest.

b. The Taser may be deployed in cases where the subject is exhibiting active resistance, or aggressive behavior to an officer attempting to conduct legal law enforcement activities as a means of physical restraint or control.

5. Unauthorized use of the Taser

d. The Taser should not be used against a subject in custody unless physical resistance has to be overcome.

6. Post use Procedures

a. Assess the subject for injuries and provide appropriate medical treatment or summon medical aid if necessary.

IV. LIMITATIONS ON FORCE

The following acts associated with the use of force are prohibited.

E. Firing at a suspect when lesser force could be used and the officer believes that the suspect can be apprehended reasonably soon thereafter without the use of deadly force, or when there is any substantial danger to innocent bystanders. (When in doubt, don’t shoot.)

Id.

Thus, in accordance with the Policy, the typical escalation of force procedure in subduing a suspect follows the pattern of: verbal control, compliance techniques, and then chemical weapons, such as a taser or pepper spray. The Policy lists the preferred target area for taser shots as “center mass,” which refers to a target’s chest. This was in accordance with the training materials supplied by TASER that were used to train Wright.

II. Discussion

A. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, an award of summary judgment can be granted only when the moving party shows that there is no genuine issue of any material fact. Fed. R.Civ.P. 56(a). In reviewing a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To survive summary judgment, the non-moving party must present evidence enabling a reasonable jury to return a verdict for that party. Id. at 252, 106 S.Ct. 2505.

B. Excessive Force Claim

Wright argues that his use of a taser under these particular circumstances did not constitute excessive force. Alternatively, he argues that, if the court were to find that he used excessive force, he is entitled to qualified immunity because the law on the matter was not clearly established at the time of the incident.

Claims of excessive force occurring during an arrest are to be evaluated under the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. “The protection against unreasonable seizures includes the right to be free of ‘seizures effectuated by excessive force.’ ” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)(en banc) (quoting Schultz v. Braga, 455 F.3d 470, 476 (4th Cir.2006)). Courts are to balance “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). In evaluating excessive force claims, courts must utilize a standard of “objective reasonableness.” Id. at 395, 109 S.Ct. 1865; see also Kentucky v. King, — U.S. -, 131 S.Ct. 1849, 1859, 179 L.Ed.2d 865 (2011) (“Our [Fourth Amendment] cases have repeatedly rejected a subjective approach, asking only whether the circumstances, viewed objectively, justify the action.”) (internal quotation marks and citations omitted). In doing so, courts are to determine “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865; see also Wilson v. Flynn, 429 F.3d 465, 468 (4th Cir.2005)(“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”).

Measuring reasonableness is “highly fact dependent,” Wilson, 429 F.3d at 468, and requires the court to “view the totality of the circumstances from the perspective of a reasonable officer on the scene.” Young v. Prince George’s County, Md., 355 F.3d 751, 757 (4th Cir.2004) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). The specific characteristics of the incident are to be viewed through the lens of three general factors: “the severity of the [underlying] crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. This interest-balancing must also take into account “the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865.

If an officer is deemed to have employed excessive force in making an arrest, the plaintiffs claim must still be dismissed if the right violated was not clearly established at the time of the incident. Police officers and other government officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The court has the discretion to determine this second factor without reaching a decision on the first factor. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Officials will not be held liable unless “[t]he contours of the right [in question were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

It is with this general framework in mind that the court evaluates Russell’s claim that Wright’s use of a taser against him constituted excessive force. The relative novelty of tasers and their sudden rise in use among police forces, and the benefits and potential harms they offer law enforcement agencies and the public, raise particularly difficult questions for courts tasked with weighing claims of excessive force stemming from their use. This is especially true in light of the wide array of factual scenarios that are inherent in police work, and the requirement to evaluate excessive force claims through a totality of the circumstances approach. The Supreme Court of the United States has not issued a decision substantively evaluating the use of tasers in an excessive force claim, nor does the law of this circuit offer many helpful examples.

In Orem v. Rephann, 523 F.3d 442 (4th Cir.2008), the United States Court of Appeals for the Fourth Circuit addressed whether the use of a taser against an arrestee who was being transported to jail in a police officer’s car constituted excessive force. Because the subject was already in custody, the Court analyzed the excessive force claim under the Fourteenth Amendment’s standard of whether the officer “inflicted unnecessary and wanton pain and suffering.” Id. at 446. The arrestee in question was handcuffed in the back of a police car with a foot hobbling device fastened around her ankles. Id. at 444. The arrestee, a 100 pound woman, continually screamed, cursed, shifted around in the backseat, and banged her head against the wall, eventually loosening the hobbling device. Id. The officer driving the vehicle pulled the car over and tightened the ankle restraints. Id. Another officer who had been following the car pulled over and engaged in a verbal exchange with the arrestee. Id. The officer then placed a taser on her left breast and inner thigh, and told her she needed to respect the officers. Id. After the arrestee cursed and threatened to sue them, one officer tased the arrestee twice in stun mode on her breast and thigh. Id. at 445. Id. The Fourth Circuit denied the officer’s motion for summary judgment, finding that there were questions of fact which, when viewed in the light most favorable to the nonmoving party, could support a finding that the officer’s behavior was unjustified. Id. at 447. In doing so, the Court held that the use of a taser on a detainee who was already in handcuffs and restrained in the back of a police car was clearly unlawful. Id.; see also Wernert v. Green, 419 Fed. Appx. 337, 343 (4th Cir.2011) (O’Connor, J.) (discussing Orem and holding that the officer’s use of the taser was deemed “objectively unreasonable” in part because of the behavior of another officer at the scene who chose to merely secure the detainee’s restraints instead of utilizing force).

The Fourth Circuit’s 2011 decision in Henry v. Purnell, applying the Fourth Amendment, is also only somewhat helpful in evaluating the use of tasers in excessive force claims. Indeed, the case did not actually involve the use of a taser, but rather a Glock .40 caliber handgun that the officer mistook for his taser. Henry, 652 F.3d at 528. The plaintiff, Henry, had repeatedly failed to pay child support or report to jail and had an outstanding warrant for his arrest. Id. After Purnell, the officer, located Henry in his vehicle, Henry exited the vehicle and began to walk towards the back of the car with Purnell. Id. Henry then started to run away, and Purnell followed. Id. Purnell unholstered his gun thinking it was his taser, and without giving a command to stop or any other verbal warning, shot Henry in the elbow. Id. Applying the standard for use of deadly force, the Court held that an officer “who shoots a fleeing suspect without ‘probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others violates that suspect’s Fourth Amendment rights.” ’ Id. at 531-35 (quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). The Court ultimately held that the officer had made an objectively unreasonable mistake in reaching for and firing his gun instead of his taser, but before doing so evaluated a number of the Graham factors. First, the Court noted that because the only crimes Henry was suspected of were nonviolent misdemeanors, the officer had little reason to think Henry posed much of a threat to anyone. Id. at 532. Additionally, Henry had exhibited no menacing conduct in his interaction with Purnell — he initially cooperated with the officer and walked towards the back of the car with him before fleeing. Id. The Court also noted that Purnell had no reason to believe that Henry was armed. Id. Although the Court’s analysis of the Graham factors is helpful to the case at hand, ultimately, however, the Court’s opinion does not address the question of whether use of a taser would have been lawful under the circumstances.

Looking to other circuits for persuasive authority, the clearest articulation of a rule for when the use of a taser is appropriate is found in Hagans v. Franklin County Sheriffs Office, 695 F.3d 505 (6th Cir. 2012). In evaluating the issue under a qualified immunity analysis, the Court drew the line at; “[when] a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him.” Id. at 509. The Court briefly explains numerous cases that illustrate the distinction between active resistance and compliance with officers’ demands. Id. at 509-10. In each of these cases, use of a taser was deemed appropriate when suspects refused to comply with officers commands, and inappropriate where the suspects were complying or were attempting to comply.

The Court then noted two outlying cases, consolidated for en banc review, where the Ninth Circuit held that officers used excessive force when they tased individuals who refused to comply with their commands, but who did not take steps suggesting that they posed a real risk of danger to the officers. Mattos v. Agarano, 661 F.3d 433 (9th Cir.2011). In the first, a pregnant woman whom officers pulled over for speeding refused to sign a citation or get out of her car after repeated requests she do so. In response, an officer tased the woman three times and handcuffed her. Id. at 436-38. In the second case, a woman was tased when she refused to get out of the way of officers who were attempting to arrest her husband. Id. at 438-39; see also Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.2009) (denying summary judgment to officer who tased a woman suspected of an open bottle violation who was seated in the passenger seat of her car with her seat belt on but refused to obey an officer’s command to terminate her 911 call). Although the Court found that the officers used excessive force in each of these cases, the officers were granted qualified immunity because the prohibition on taser use in these circumstances was not clearly established.

The defendant cites heavily from two cases as examples of circumstances in which use of a taser was deemed reasonable. In McKenney v. Harrison, 635 F.3d 354 (8th Cir.2011), the Court granted summary judgment in favor of an officer who deployed his taser against an arrestee attempting to escape. The suspect, who had successfully fled from the same officer three weeks prior to the incident, was arrested while naked in the second floor bathroom of his residence. Id. at 356-57. Two officers escorted the suspect to his bedroom and allowed him to dress before taking him into custody. Id. at 357. The officers observed that as the suspect was dressing, he looked suspiciously toward an open window which opened out to a porch roof. Id. One officer unholstered her taser and warned the suspect “not to do anything stupid,” and admonished him “you don’t want to be tased.” Id. When the suspect made a move for the window, she deployed the taser. Id. As a result of the shock, he fell through the window, missed the roof, and landed on the ground. Id. He died as a result of the injuries suffered from the fall. Id. In holding that, as a matter of law, the use of a taser under these circumstances did not amount to excessive force, the Court reasoned that:

When Barnes made a sudden movement toward the window, which the officers reasonably interpreted as an active attempt to evade arrest by flight, the officers were entitled to use force to prevent Barnes’ escape.... Despite the fatal consequences of the incident, the level of force employed also was not unreasonable. Pollreis used only a single Taser shock. She was required to react in a split second as Barnes sought to escape through a window only six to eight feet away. The alternative of attempting to subdue Barnes by tackling him posed a risk to the safety of the officer and did not ensure a successful arrest. The officers had warned Barnes. Just before he lunged, Harrison told Barnes not to do anything stupid, and Pollreis said “you don’t want to be tased.” And although the outcome was tragic, a reasonable officer, knowing that a Taser is designed to incapacitate instantly, could have believed that the force would incapacitate Barnes before he reached the window, while he was not in an “elevated position” and likely to fall.

Id. at 360 (citation and footnote omitted). A concurring opinion in the case noted that, given “circumstances that [were] tense, uncertain, and rapidly evolving,” it could not be said that the officer’s actions were objectively unreasonable. Id. at 364 (Murphy, J., concurring).

In Draper v. Reynolds, 369 F.3d 1270 (11th Cir.2004), a truck driver was pulled over for driving with a faulty tail light. The officer requested that the driver exit the truck and walk back to an area behind the vehicle. The driver initially complied, but then refused to retrieve documents from the cab of his truck despite being asked repeatedly by the officer. Id. at 1278, During the encounter, the driver “was belligerent, gestured animatedly, continuously paced, appeared very excited, and spoke loudly.” Id. at 1271. After the driver refused the officer’s fifth request to retrieve the documents, the officer tased him once in the chest. Id. at 1278. The Court noted that given the driver’s actions and demeanor, a “verbal arrest command accompanied by attempted physical handcuffing, in these particular circumstances, may well have, or would likely have, escalated a tense and difficult situation into a serious physical struggle in which either [the officer or driver] would be seriously hurt.” Id.

With this legal framework in mind, the defendant argues that he is entitled to judgment as a matter of law that tasing Russell under these particular circumstances did not amount to excessive force. Wright contends that an evaluation of the Graham factors warrants this result. First, he notes that he was responding to a serious act of violence. Wright had been called to Russell’s residence because the decedent allegedly kicked his 9 year-old son badly enough that he needed medical attention. Wright also argues that he had just seen Russell lead police on a short pursuit, potentially a serious crime in itself.

Additionally, Wright argues that Russell posed a danger to himself and the officers. First, Wright was aware that Russell had been drinking that night, increasing his chances for unpredictable behavior. Wright also saw Russell exit his vehicle immediately after pulling over and approach the officers. He failed to obey the officers’ repeated commands to stop and get on the ground. He continued to do so despite facing officers with their weapons drawn, and having the laser target dot from Wright’s taser pointed at his chest. Wright argues that Russell began to advance towards him immediately before deploying his taser.

Wright also argues that the final Graham factor, whether Russell was actively resisting arrest, weighs in his favor. Wright again points to Russell’s failure to pull over immediately upon being followed, and his refusal to follow the officers’ verbal commands. Additionally, Wright contends that Russell’s statement asking the officer to tase him indicated that he did not intend to surrender peacefully.

In response to these arguments, the plaintiff does not take issue with the legal framework to be applied, or the assertion that an officer’s use of a taser is justified in situations where a suspect is actively resisting arrest. Instead, she argues that there are disputed issues of material fact regarding the events that occurred between the time the officers arrived at the Russell home and Wright’s use of the taser, and that these disputes preclude entry of summary judgment. Essentially, the plaintiffs position is that Russell was not resisting arrest, and was instead attempting to cooperate with the officers, but was unable to do so because he could not hear the officers’ commands over the blare of Deputy Mattox’s siren. The plaintiff acknowledges that Mattox’s shouts are audible on the videotape, but contends that this is at least partly because the officers wear microphones in their chest pockets to help capture their voices.

Buttressing the plaintiffs argument on this point is the differing testimony regarding what Russell said to the officers. Wright and Mattox testified that Russell told them to “go ahead and shoot me.” (Mattox Dep. 71; Wright Dep. 123.) TASER’s expert, Grant Fredericks, testified that he believed Russell asked, “why don’t you just tase me?” Dr. Geoffrey Alpert testified that he could not tell what Russell said. The plaintiff contends that these discrepancies raise triable questions of fact about whether the noise from the siren excused Russell’s failure to comply with the officers’ commands.

The plaintiff also contends that the video does not definitively prove that Russell was acting in an aggressive manner or that he was actively resisting arrest. Again, the plaintiff contends that Russell was merely trying to cooperate with the police, even if he was not going about it in the best manner. Wright acknowledged in his testimony that when Russell exited the car and put his hands up, he did not consider it to be a threatening gesture. Likewise, Dr. Alpert testified that he did not believe Russell was making the kind of sudden movements that indicate aggressive behavior, Alpert also testified that he did not agree with Wright’s and Mattox’s testimony that Russell made one final step toward the officers before being tased.

Finally, the plaintiff also asserts that there are factual disputes concerning the brief car pursuit. The plaintiff contends that the video shows that there were no safe places for Russell to pull over before reaching the parking area. Disagreeing, the deputies testified that Russell passed numerous driveways and other safe places where he could have pulled over, and that this fact would contribute to a reasonable officer’s interpretation that Russell was attempting to evade arrest.

The court finds the plaintiffs arguments regarding the alleged factual disputes unavailing. While it is generally the case that at the summary judgment stage, the plaintiffs version of the facts must be accepted as true, “when a video clearly contradicts the version of the story told by [the plaintiff] ... so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)); see also Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir.2007) (emphasizing that in Scott no disputed issues of fact existed because the “videotape ... depict[ed] all of the defendant’s conduct and all of the necessary context that would allow the Court to assess the reasonableness of that conduct”). Although the plaintiff has questioned the officers’ interpretation of events at the scene through the introduction of her own expert witness, “[m]inor discrepancies in testimony do not create a material issue of fact in an excessive force claim, particularly when ... the witness views the event from a worse vantage point than that of the officers.” Anderson v. Russell, 247 F.3d 125, 131 (4th Cir.2001). The court has the benefit of multiple video and audio recordings of the incident. The plaintiffs attempt to create factual disputes by pointing to such things as minor inconsistencies in what was said during the event, and a third person’s opinion as to whether Russell was acting aggressively, simply overlooks the clear video evidence. It also ignores the requirement that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Wilson v. Flynn, 429 F.3d 465, 468 (4th Cir.2005). The officers were responding to a fluid and potentially dangerous situation, and the minor factual disputes raised by the plaintiff do not affect the reasonableness of Wright’s decision to deploy his taser at Russell.

Lacking any meaningful factual disputes, the court finds that Deputy Wright is entitled to qualified immunity on the excessive force claim. In doing so, the court exercises its judicial prerogative to employ either of the qualified immunity prongs first, and determines that regardless of whether Wright’s actions constituted excessive force, an issue the court expressly does not decide, his actions were objectively reasonable because they did not violate clearly established law. Pearson, 555 U.S. at 236,129 S.Ct. 808.

Given the dearth of caselaw on the use of tasers in excessive force cases, particularly within the Fourth Circuit, the court simply cannot say that Wright’s use of his taser under these circumstances violated clearly established law. Tasers are still relatively novel devices, and courts across the country continue to grapple with determining their proper role in assisting law enforcement officers. Reviewing the relevant caselaw that does exist, the court believes that the line between active resistance and compliance is helpful in evaluating whether Wright’s behavior was objectively reasonable. The officers in this case were responding to a report of violence, and were confronted with a suspect who refused to obey multiple commands. Unlike in Draper, a case where the officer was held not to have used excessive force, Wright and Mattox never had control of the scene before the taser was used. Russell’s only acts of compliance with the officers’ requests were to initially raise his hands (before later lowering them), and to cease approaching an officer who had his handgun drawn and trained on him. These acts alone do not demonstrate compliance, and are far outweighed by Russell’s demonstrations of resistance discussed above.

Additionally, the situation confronted by the officers in this case was far more dangerous and fast moving than the facts presented in the Ninth Circuit’s consolidated en banc cases mentioned above, in which the officers were granted qualified immunity. See Mattos v. Agarano, 661 F.3d 433 (9th Cir.2011). Furthermore, another officer on the scene, Deputy Mattox, believed that Wright should deploy his taser — indeed he instructed Wright to do so. Although an officer’s actions must be viewed objectively, this fact certainly indicates that a reasonable officer would not have understood that using a taser in these circumstances would violate clearly established law. See Malley, 475 U.S. at 341, 106 S.Ct. 1092 (granting qualified immunity even where officers of reasonable competence could disagree on whether the action was reasonable).

If the purpose of qualified immunity is to protect “all but the plainly incompetent or those who knowingly violate the law,” Hunter, 502 U.S. at 229, 112 S.Ct. 534, Wright is certainly entitled to its benefit. Even if Wright’s actions were deemed excessive, in light of the existing caselaw, it would be simply unfair to subject him to trial for using a taser on a potentially violent, noncompliant arrestee. See Hagans, 695 F.3d at 511 (“The essence of qualified immunity ... is to give government officials cover when they resolve close calls in reasonable (even if ultimately incorrect) ways.”); see also Henry, 652 F.3d at 540 (Davis, J., concurring) (“That the law is still evolving is illustrated in cases granting qualified immunity for that very reason. See, e.g., Bell v. Kansas City Police Department, No. 08456, at 4-5, 2010 WL 9063480 (W.D.Mo. Mar. 22, 2010) (granting qualified immunity to police officer in ‘close case’ because ‘there is not enough law warning defendant against tasering to justify this [excessive force] litigation’). Local law enforcement policies also reflect differing views of where the taser fits on the ‘force continuum.’ Some allow taser use only as an alternative to deadly force, while others call for taser use whenever any force is justified. U.S. Gov’t Accountability Office, GAO05464 Taser Weapons: Use of Tasers by Selected Law Enforcement Agencies 9-10 (2005)).” In light of the foregoing, Deputy Wright did not violate clearly established law, and he is entitled to qualified immunity. Accordingly, his motion for summary judgment will be granted as to Count I.

C. State Law Claims

In Counts II and III, the plaintiff alleges state law violations for gross negligence and assault and battery. Gross negligence in Virginia is defined as the “absence of slight diligence, or the want of even scant care.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688 (1987). “[It] is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another.” Id. Wright’s conduct did not amount to a complete disregard of Russell’s safety. Wright was charged with making a difficult decision in a rapidly evolving situation. ACSO’s use of force policy authorizes taser use against subjects who are resisting arrest, and targeting Russell’s chest was in accordance with the training Wright received on how to use the device. Additionally, Russell was given numerous chances to comply with the officer’s commands before any force was employed. As a result, Wright’s conduct simply cannot be said to lack the “slight diligence” required to defeat a claim of gross negligence. Id.

Likewise, the plaintiffs assault and battery claim is without merit. To support such a claim, the plaintiff is required to prove a “wrongful act” on the part of the defendant. Pike v. Eubank, 197 Va. 692, 700, 90 S.E.2d 821 (1956). Police officers are legally justified in using reasonable force to execute their lawful duties. Id. “When acting in good faith, the courts will afford [law enforcement officers] the utmost protection, and they will recognize the fact that emergencies arise when they are not expected to exercise that cool and deliberate judgment which courts and juries exercise afterwards upon investigations in court.” Wernert v. Washington, No. 3:09-cv-00031, 2010 WL 924281 *8 (W.D.Va. Mar. 11, 2010) (quoting Davidson v. Allam, 143 Va. 367, 373, 130 S.E. 245 (1925)). In a case such as this, in which the officer was clearly entitled to intervene and take Russell into custody, he was also therefore entitled to engage in a touching of some degree. Consistent with the court’s earlier ruling, Wright could not have known that the use of a taser under the circumstances was unreasonable, and he is thus entitled to a good faith defense to the assault and battery claim. See DeChene v. Smallwood, 226 Va. 475, 311 S.E.2d 749 (Va.1984) (concluding that where an officer acted in a good faith belief in the validity of an arrest, causes of action for battery [and] assault ... claims cannot be based on such an arrest); Harrison v. Deane, 426 Fed.Appx. 175, 180-81 (4th Cir.2011) (holding that an officer cannot be subjected to civil liability for ... assault and battery when the officer acted in good faith and with probable cause).

Moreover, a favorable ruling for the defendant on an excessive force claim brought under § 1983 requires dismissal of the state law claims as well. In Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir.1998), the Fourth Circuit held that a ruling that the officer’s actions were objectively reasonable under a § 1983 analysis required dismissal of a state law wrongful death claim. The Court stated, “because we have concluded that [the officer’s] actions were, as a matter of law, reasonable in the circumstances of this case, they cannot be negligent or wrongful....” Sigman, 161 F.3d at 789. In Milstead v. Kibler, 243 F.3d 157 (4th Cir.2001) (abrogated in part on other grounds), the Fourth Circuit affirmed a district court opinion stating that “[i]f [the plaintiffs] Fourth and Fourteenth Amendment claims are decided in favor of the defendants on their motion for summary judgment, the state law claims should also be dismissed.” Milstead v. Kibler, 91 F.Supp.2d 895, 901 (W.D.Va.2000), aff'd, 243 F.3d 157; see also Thompson v. City of Danville, Va., No. 4:10cv00012, 2011 WL 2174536, *9 (W.D.Va. June 3, 2011) (dismissing state law claims for assault, battery, and negligence after dismissing plaintiffs § 1983 excessive force claim). Accordingly, Deputy Wright’s motion for summary judgment will be granted as to Counts II and III. Additionally, because the court finds in favor of Wright on all of the substantive counts, the plaintiffs claim for punitive damages against Wright in Count VIII will also be denied.

CLAIMS AGAINST TASER

The plaintiff alleges that the TASER X26 used by Deputy Wright on the night of the incident was defective because TA-SER did not adequately warn that an electrical discharge from the device to a person’s chest could induce ventricular fibrillation and result in cardiac arrest. The plaintiffs products liability claims are brought in negligence and for breach of implied contractual warranties. Specifically, she alleges negligent failure to warn in Counts VI and IX, and breaches of the implied warranties of fitness and merchantability in Counts IV and V, respectively. She also seeks punitive damages against TASER in Count VII for wantonly failing to provide adequate warnings.

I. Factual Background

The facts relevant to the plaintiffs claims against TASER, and which are not mentioned in the previous fact section addressing the claims against Wright, are summarized below.

TASER manufactures a number of different Electronic Control Devices (“ECDs”). The one at issue in this case is the X26. The X26 fires two darts, or probes, that transmit electrical charges into the body, blocking the nerve command center and causing the target to become temporarily incapacitated. (Smith Dec. ¶ 6.) When the trigger on the X26 is pressed, it releases a single five second cycle. (Id. ¶ 7.)

TASER offers instructor training courses in which the company certifies TASER ECD Master Instructors and Instructors. TASER generally trains the Master Instructors, who then train Instructors, who in turn train most ECD end users. (Id. ¶¶ 12-14.) TASER also issues product warnings, product manuals, training bulletins, and other training materials regarding the ECDs. When new versions of the training materials and product warnings are released, the materials explicitly instruct that all prior editions have been superseded and rendered obsolete. (Id. ¶¶ 17-20.) The product manuals also include a similar warning that users should comply with the current training materials. Additionally, the training materials provided to Instructors indicate in numerous places that they are to ensure training sessions are conducted using the latest materials. (Docket Nos. 60-24, 60-25.) TASER posts training materials on its website, in addition to distributing them via emails or mailings to all certified Instructors. Instructors are directed to visit TASER’s website no more than 72 hours prior to conducting an ECD training program to ensure they have and are utilizing the latest materials. (Smith Dec. ¶ 18.)

The X26 used on Russell was shipped from TASER on May 18, 2007 to Southern Police Equipment, a private distributor of law enforcement equipment in Virginia. (Id. ¶ 32.) ACSO purchased the ECD from Southern Police. (Staples Dep. at 31.) Included in the box were TASER’s Training DVD Version 13, a March 1, 2007 Product Warning, and an operating manual. (Smith Dec. ¶ 34.) These were the current training materials at the time. Also included in the shipment were several sales documents, including the following warranties and limitation of remedies:

7. Warranty Exclusions. THE WARRANTY 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.

9. Limitation of Remedies. THE REMEDIES PROVIDED FOR IN THE ABOVE WARRANTY ARE EXPRESSLY IN LIEU OF ANY OTHER LIABILITY TASER MAY HAVE, INCLUDING INCIDENTAL AND CONSEQUENTIAL DAMAGES.... IN NO EVENT WILL TASER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE....

(Docket No. 60-13.)

Additionally, a warning affixed to the ECD itself, as well as included in the product manual, product warnings, and training program shipped with the device, stated that users should consult TASER’s website to obtain current training materials and requirements. (Smith Dec. ¶ 34.)

TASER released Version 14 of its training materials on December 1, 2007; Version 15 was released on August 24, 2009; Version 16 on December 7, 2009; and Version 17 on May 1, 2010. (Smith Dec. ¶¶ 36-43.) New product warnings were released on April 28, 2008, September 30, 2009, and May 1, 2010. (Id.) Notice of these materials was delivered to ACSO’s ECD Instructors, and the Instructors were either mailed a CD/DVD of the new materials or given a URL where they could be downloaded. (Id. ¶¶ 39-49.)

Although police departments and other users are independently responsible for decisions on certification and the use of ECDs in their employment, TASER maintains an official certification procedure. This requires Instructors to be retrained every two years, and end users to be retrained every year. (Id. ¶ 15.) Deputy Wright received his ECD training from Deputy Sean Burton on April 26, 2010. Wright was trained using Version 14 of TASER’s training materials, even though at the time these had been superseded by Versions 15 and then 16. Version 14 included a warning that users “[c]omply with current training materials and requirements.” (Docket No. 60-18.) Version 17 was released a few days after Wright’s training. (Smith Dec. ¶ 42.)

On September 30, 2009, TASER released “Training Bulletin 15.0: Medical Research Update and Revised Warnings,” (Docket No. 60-20.) The Bulletin announced a new “Targeting Guide” that lowered the preferred target for front shots from center mass to lower center mass. (Id.) A diagram accompanying the Bulletin shows that the upper half of the chest was now outside the recommended target area. (Id.) This was different from previous editions, which had explicitly instructed users to target the chest. (Id.) The Bulletin also discussed certain potential cardiac effects of darts to the chest, stating:

Conclusion regarding the potential for cardiac effects: Researchers have been able to demonstrate changes in heart rate and rhythm consistent with cardiac pacing and, in some cases, ventricular fibrillation (VF) in small swine, an arrhythmia that can be fatal without intervention, and have concluded that the close distance between the ECD dart and the heart is the primary factor in determining whether an ECD will affect the heart. The threshold for VF has been estimated to be 12.6 times that for cardiac pacing. This risk is judged to be extremely low in field use. In order to increase the safety margin and since field experience shows that ECD discharges are effective when deployed to the large muscles of the back, abdomen, legs and pelvic triangle, users should aim for the back or (when practical) toward the mid lower abdomen and avoid intentionally targeting the chest area with probe applications to increase effectiveness and avoid the remote potential risk of cardiac effect.

(Docket No. 60-21.)

The defendant notes that the September 30, 2009 product warnings also included language regarding possible cardiac risks that had not been included in its previous warnings or training materials. (Smith Dec. ¶ 47; Docket No. 60-10.) Deputy Burton and another Instructor, Sergeant Roger Irvin, each received Bulletin 15, but Burton testified that he did not read it in its entirety. (Burton Dep. 33, 54-55; Smith Dec. ¶ 43.) TASER issued a synopsis of Bulletin 15 on November 6, 2009. (Smith Dec. ¶48.) The synopsis noted that TASER had lowered the preferred point of aim for frontal shots to avoid the head, neck, and chest area when possible. (Docket No. 60-10.) It goes on to state that “[t]he risk of an adverse cardiac event related to an ECD discharge is deemed to be extremely low. These guidelines further reduce this remote risk and improve risk management.” (Id.) Shortly before Bulletin 15 was released, the company also issued a set of frequently asked questions meant to clarify the new warnings. The first question asked, “Why was the preferred target zone changed?” TASER provided the following response: “The Answer to this has less to do with safety and more to do with effective risk management for law enforcement agencies.” (Docket No. 66-16 at 2.)

Rick Guilbault, a vice president for training at TASER, also issued a four-page statement around the time Bulletin 15 came out, addressing why the preferred target area had changed. He stated:

[T]he ECD could have caused a cardiac event. The available research does not support the idea that a TASER ECD can cause ventricular Fibrillation (VF) and demonstrates that while it may not be possible to say that an ECD could never affect the heart under any circumstances, the risk of VF is extremely rare and would be rounded to near zero. An argument put forward by plaintiffs attorneys is that an ECD can cause a cardiac event and this puts law enforcement and TASER International in a position of having to prove that that is not the case.

The intent of the new preferred target zones is risk mitigation, pure and simple. It is no secret that TASER International is involved in several lawsuits, and we often partner with law enforcement agencies in defending use of force litigation. We know the tactics being used by plaintiffs attorneys and we are trying to protect our law enforcement customers and ourselves from the lengthy and unpleasant process of civil litigation .... With the scientifically unsupported claims of the Braidwood Commission (Canada) that ECDs can cause cardiac arrest, TASER would have been negligent if we did nothing. Instead, we carefully crafted a message to lower your litigation risk without exposing you to any more liability than you currently face.

(Docket No. 66-15 at 1, 3-4.)

In a staff meeting in February 2010, which Deputy Wright attended, Deputy Burton orally reviewed the Bulletin 15 synopsis. (Burton Dep. at 84-85.) At that time, Wright had not yet undergone any ECD training. Both Burton and Wright testified that after the staff meeting, they understood that it was still proper to target the chest, and that the target area had been changed merely to avoid litigation. (Id. 43-45; Wright Dep. 91-92.)

The training materials in effect at the time of the incident were Version 17 and the May 1, 2010 product warnings. As with all prior versions, the warnings in those materials stated that ECDs can be dangerous, and that disregarding instructions can result in serious injury or death. (Docket No. 60-23 at 1.) The May 1, 2010 product warnings also included a warning that exposure to an ECD shock could affect a suspect’s “heart rate and rhythm.” (Id. at 4.) They warned of the chest/breast area as a “sensitive” spot that should be avoided when possible, and designated lower center mass (below chest) as the preferred target area for chest shots. (Id.) The training materials included in Version 17 contain similar instructions on avoiding chest shots, as well as some more explicit reasons for why chest shots should be avoided. (Docket No. 60-28.) A training slide included in the materials stated: “Risk of an ECD application having a negative effect on a person’s heart rate and/or rhythm is not zero.... The risk of an ECD causing cardiac arrest in humans from ventricular fibrillation is sufficiently remote that making accurate estimates is very difficult. Current estimates of the risk are on the order of 1 in 100,000.” (Id.) The materials go on to state that “[ejxperts have identified heart to dart distance as being a key determining factor in whether an ECD can affect the heart. The VF [ventricular fibrillation] probability for a given dart location decreased with the dart-to-heart horizontal distance (radius) on the skin surface. The further an ECD dart is away from the heart, the lower the risk of affecting the heart.” (Id.)

II. Discussion

A. Failure to Warn

In Counts VI and IX of the second amended complaint, Ms. Russell contends that TASER is liable for her husband’s death due to a failure to adequately warn of the dangers associated with the X26. Under Virginia law, a product manufacturer is liable when it “(a) knows or has reason to know' that the [product] is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the [product] is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” Featherall v. Firestone Tire and Rubber Co., 219 Va. 949, 962, 252 S.E.2d 358 (1979) (quoting Restatement (Second) of Torts § 388 (1965)). This duty to warn “stems from the view that the manufacturer should have superior knowledge of his product and it extends not only to the immediate purchaser but to other persons who might in the ordinary and natural course of events be subjected to danger.” Id.

In its initial brief in support of the motion for summary judgment, TASER asserted that it had no duty to warn of a danger of sudden cardiac events posed by chest shots from an ECD such as the X26. (Docket No. 60, at 36-40.) In its reply to the plaintiffs response to the motion for summary judgment, however, TASER clarified its position on the duty to warn, stating that

the issue is NOT whether TASER had a duty to warn of cardiac risks from ECD chest shots on October 30, 2010, or whether the Virginia Supreme Court has yet to address a manufacturer’s post-sale duty to warn of product dangers. TASER in fact warned of cardiac risks and trained officers to avoid chest shots more than a year prior to Deputy Wright’s October 30, 2010 encounter with Russell. TASER also in fact regularly updated its warnings and training materials post sale to stay current with the medical and scientific literature on ECD risks as well as court decisions regarding such risks and made sure ACSO got them. Accurately stated, the issue is whether TASER had a duty to warn of any cardiac risk not already contained in its comprehensive Version 17 training and May 2010 warnings.

(Docket No. 79, at 6) (citations omitted) (emphasis in original).

Regardless of whether TASER had a duty to do so or not, beginning with its Version 15 training materials and the product warnings issued on September 30, 2009, it undertook steps to warn users of the possibility of a danger posed by chest shots. It is uncontested that Wright, however, never saw these materials.

Properly determining the scope of TASER’s duty to warn in this case requires answering the following questions: first, as a threshold matter, whether Virginia law recognizes a post-sale duty to warn; second, whether such a duty would apply under the facts of this particular case; and third, if indeed such a duty existed, whether TASER sufficiently discharged that duty, both in terms of exercising reasonable care in disseminating the new warnings to users, as well as whether the substance of the warnings was adequate to properly inform users of the dangers. Finally, for TASER to be liable, the plaintiff must also show that the allegedly inadequate warnings were a proximate cause of Russell’s injuries.

i. Post-sale duty to warn in Virginia

The Supreme Court of Virginia has never formally adopted the duty to make post-sale warnings regarding product dangers that come to light after the initial sale. See Royal Indem. Co. v. Tyco Fire Prods., LP, 281 Va. 157, 169 n. 3, 704 S.E.2d 91 (Va.2011)(deelining to address appellant’s argument that trial court improperly dismissed post-sale duty to warn claims); Harris v. T.I., Inc., 243 Va. 63, 72, 413 S.E.2d 605 (Va.l992)(assuming without deciding that post-sale duty to warn exists). A number of federal courts interpreting Virginia law have assumed, however, that under the circumstances of their particular cases, the Virginia Supreme Court would have adopted the doctrine, and have therefore applied it. See, e.g., King v. Flinn & Dreffein Engineering Co., No. 7:09-cv-00410, 2012 WL 4459568, *6-8 (W.D.Va. May 16, 2012); Rash v. Stryker Corp., 589 F.Supp.2d 733 (W.D.Va.2008); McAlpin v. Leeds & Northrup Co., 912 F.Supp. 207 (W.D.Va.1996). But see Estate of Kimmel v. Clark Equip. Co., 773 F.Supp. 828 (W.D.Va.1991)(declining to apply a post-sale duty to warn under Virginia law).

For the reasons set forth in the opinions cited above, including the undersigned’s own decision in McAlpin, the court believes that, if confronted with the question, the Supreme Court of Virginia would apply a post-sale duty to warn in negligence failure to warn cases. Accordingly, the court will determine whether a post-sale duty to warn existed under the facts of this case.

ii. Duty to warn in this case

Assuming that Virginia would recognize a post-sale duty to warn, the court must determine whether such a duty would apply in this case. The question of whether a duty exists in negligence cases is generally a matter of law. Kellermann v. McDonough, 278 Va. 478, 487, 684 S.E.2d 786 (2009) (“The issue of whether a legal duty in tort exists is a pure question of law....”). Determining the existence of a duty in this case can be answered by applying the post-sale duty to warn factors found in § 10 of the Restatement (T