Products Liability Law Reporter

A federal district court held that a diabetic patient’s claims against the maker of a continuous blood glucose monitoring system were not subject to compelled arbitration.

Katelyn Dickson, who suffered from Type 1 diabetes mellitus, began using the Dexcom G6 System, a monitoring device that continuously measures and monitors blood glucose levels and alerts users to dangerous blood glucose levels. Dickson experienced a sudden and dangerous drop in her blood glucose levels while she was driving. She struck a concrete driveway and culvert at 65 mph, causing her airbags to deploy and trapping her in her vehicle. A child was also in the car.

Dickson filed suit against Dexcom Inc., alleging claims including design defect, failure to warn, and breach of express warranty under the Louisiana Products Liability Act. The defendant moved to compel arbitration under the arbitration clause contained in the Dexcom Terms of Use.

Denying the motion, the district court found that under the Federal Arbitration Act, which controls the validity and enforcement of arbitration agreements, such agreements are enforceable, except under grounds that exist at law or in equity for revocation of any contract. A court’s review of a party’s alleged failure to honor an arbitration agreement involves deciding whether the parties had entered into any arbitration agreement at all and whether the claim at issue is covered by the agreement. Here, the court found, the plaintiff argues she had not consented to arbitrate because she lacked reasonable notice of an arbitration clause’s existence. The contract at issue here is a “clickwrap” agreement, the court said, which required the user to click “I agree.” Citing case law, the court noted that when analyzing the circumstances surrounding a clickwrap agreement, it must consider the presentation of the agreement, including the clarity and conspicuousness of the arbitration terms and whether the user had sufficient notice of the additional terms.

Applying these principles, the court found that the Setup Wizard the plaintiff allegedly used contained a “legal” screen that allowed her to proceed only after checking a box indicating that the use of any Dexcom, Inc., website, mobile application, or other software was subject to Terms of Use, which included an arbitration clause. This language indicates that the plaintiff-user was consenting to arbitration only for claims arising from the use of the app, the court concluded, adding that the language did not advise the plaintiff that her use of the G6 device—which does not require an app—also is subject to the Dexcom Terms of Use. The court held that the burden must be on website owners to notify users of the terms to which they wish to bind them. Thus, the court held that the legal screen used in the Setup Wizard here failed to provide a reasonable user with notice that she was waiving her right to pursue any claims arising from the medical device by installing the related app.

Consequently, the court denied the defendant’s motion to compel arbitration.

Citation: Dickson v. Dexcom Inc., 2024 WL 3417392 (W.D. La. July 15, 2024).

Plaintiff counsel: AAJ member Timothy W. Porter, Ridgeland, Miss.