In 2008, Mary Ann Verdugo passed away after suffering a heart attack while shopping at a Target store in Pico Rivera, California. Her family sued Target for not having an automatic external defibrillator (AED) on site — a device, they claim, could have saved Ms. Verdugo’s life. The lawsuit has now made its way up the judicial chain and, earlier this month, the California Supreme Court heard oral arguments on the question of whether retail stores like Target should be required to carry AEDs in their stores. Currently, the law only requires retailers to summon medical help for their customers suffering a health emergency.
Of course, larger questions are implicated with this “Target Heart Attack Case” and the California Supreme Court’s forthcoming decision. For instance, there is a question whether the Court can even grant Plaintiffs the relief they seek. Target and its amici argue that this issue is best left to the legislature, which addressed the question of AEDs in 1999 when it passed Good Samaritan laws to protect persons using the device on persons in distress. Since that time, the legislature has enacted legislation to require government buildings and gyms to maintain AEDs on site, but has failed, notably, to pass similar legislation for golf courses and amusement parks. The defense further argues that it would be extraordinary for the high court to use common law to force stores to carry one particular medical device.
Plaintiffs argue that Good Samaritan laws are already in place to minimize the liability of retailers, and that AEDs are easy to use and no more burdensome than emergency exit signs or fire extinguishers. Having an AED on site could mean the difference between life and death for customers, especially since the size of some of the larger retail stores — which are designed to keep customers shopping for hours — often inhibits medical emergency response personnel from quickly locating customers needing medical attention. Plaintiffs further argue that stores like Target should be held to higher standard because they already offer pharmaceuticals and other medical devices.
Another question implicated by a holding against Target would be whether retail stores would similarly be required to maintain other medical devices, such as EpiPens for allergic reactions and inhalers for asthma attacks, and whether they could be held liable for not having them. Plaintiffs refute this “slippery slope” argument, citing to the fact that gyms, sports venues, and airplanes have not been subject to calls to carry additional medical devices despite being required to stock defibrillators on site. Nevertheless, the arguments plaintiffs proffer for why stores should be required to carry AEDs can easily be made for why they should carry EpiPens and inhalers (among other devices), and would likely result in additional litigation if the high court were to hold that retailers have a duty to maintain defibrillators on site.
Finally, the defense argues that a decision against Target will create ambiguity about which retail stores would be required to carry AEDs on site. Plaintiffs argue that the high court’s decision will certainly be limited to “big box” retailers like Target and Wal-Mart, and not extend to smaller stores. Even if true, however, a decision against Target here would still raise questions regarding which stores would be required to provide AEDs and which ones would not. The concern in the retail industry is that this ambiguity will result in lawsuits being filed against all retailers, not just the Targets and Wal-Marts of the world, for not carrying adequate medical devices such as AEDs on site.
What is certain is that the uncertainties attendant to a holding against Target in this matter would certainly result in increased costs for consumers, as retailers would raise the prices of their goods in anticipation of the inevitable ensuing litigation. If you have any questions, please contact the authors of this alert, or the Arent Fox professional who handles your matters.