Case Details and Video Transcript:

Filed 5/16/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LARA HERZOG et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SAN

DIEGO COUNTY,

Respondent;

D082847

(San Diego County

Super. Ct. Nos.

37-2022-00049800-CU-PL-CTL,

37-2023-00012889-CU-PL-CTL,

37-2023-00014497-CU-PL-CTL,

37-2023-00014471-CU-PL-CTL,

37-2022-00047846-CU-PL-CTL)

DEXCOM, INC.,

Real Party in Interest.

In this case, 5 diabetic patients sued the manufacturer of medical device Dexcom G6 over an alleged malfunction resulting in serious injuries and death. Dexcom moved to compel arbitration arguing that the patients agreed to arbitrate their claims by clicking on “I agree to Terms of Use” when installing the G6 app.

The trial court granted Dexcom’s motion to compel arbitration. The appellate court, however, ruled that the trial court erred. The court held that Dexcom’s notice of arbitration was deficient because it was ambiguous as the clickwrap agreement explicitly told the user that clicking the subject box constituted authorization for Dexcom to collect and store the user’s personal health information.

For this reason, the appellate court held that Dexcom could not meet its burden of demonstrating that the same click constituted unambiguous acceptance of the Terms of Use, which included the arbitration provision.

The court concluded that consequently, no arbitration agreement was formed with plaintiffs.

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