Herzog

INTRODUCTION

Henry J. Hebert, Traci Moore, Aliya Campbell Pierre, Tiffanie Tsakiris, and Brenda Bottiglier are diabetic patients whose doctors prescribed the Dexcom G6 Continuous Glucose Monitoring System (Dexcom G6) to manage their diabetes. The Dexcom G6 allegedly malfunctioned and failed to alert each of them that their blood glucose level was either too low or too high, resulting in serious diabetic injuries; and in Hebert’s case, untimely death. Five separate products liability actions were then filed against the manufacturer, Dexcom, Inc. (Dexcom). In response to all five actions, Dexcom moved to compel arbitration. It asserted that each injured party entered a “clickwrap” agreement to arbitrate all disputes when they installed a mobile medical application called the “G6 App” on their personal smart devices to read their glucose levels and clicked the box next to, “I agree to Terms of Use.” Terms of Use was a hyperlink to a separate webpage with contractual terms, including an arbitration provision. Agreeing with Dexcom, the trial court granted Dexcom’s motions in all five cases. Plaintiffs⎯Moore, Pierre, Tsakiris, Bottiglier, and Hebert’s daughters, Lara Herzog and Melanie…