- “It is not always sunny in Philadelphia for product liability lawyers – especially defense lawyers like us,” – Jim Beck, writing in this post, entitled “It’s Sunny in Philadelphia,” at the Drug and Device Law blog. How can you not read a post with that introduction? (Unfortunately, however, there is no mention of Green Man in this particular post.).
- Brian Comer at the South Carolina Products Liability Law Blog has a nice post analyzing South Carolina warning law and how it might be applied in the context of cell phone use while driving cases. We previously posted on that topic here. In his post, Comer concludes:
[T]his is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.
So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of “obvious risk.”
He may be right. As commonplace as cell phones are today, it is difficult to imagine a jury of 12 individuals (all of whom likely have cell phones themselves) abandoning the common sense idea that a driver is responsible for his own actions while on the roadway. Cell phone providers would have a strong argument that the driver’s actions at least were a superseding cause of the injury-producing activity. However, the common sense approach to refuting liability may not be as convincing against a manufacturer of new age, interactive, electronic devices designed specifically for installation directly in the driver’s dashboard.
- “We hold that the limitation on noneconomic damages in medical malpractice actions set forth in section 2-1706.5 of the Code violates the separation of powers clause of the Illinois Constitution and is invalid. Because the Act contains an inseverability provision, we hold the Act invalid and void in its entirety. ” Lebron v. Gottlieb Memorial Hosp., — N.E.2d —-, Nos. 105741, 105745., 2010 WL 375190 (Ill. Feb. 4, 2010) (citations omitted) [PDF]. The Illinois Supreme Court found that the $1 million limits for hospitals and their personnel and $500,000 limits for doctors operated as an “unconstitutional legislative remittitur.” (Link courtesy of the Mass Tort Litigation Blog by way of the In the Jury blog).
- The WSJ Law Blog reports on Merck’s recent settlement of shareholder lawsuits arising from its withdrawal of Vioxx from the market.
In that case, the Plaintiff, an Oklahoma City dental hygienist, was traveling with her husband to Hot Springs, Arkansas. Id. at *1. As Mrs. Hammond was preparing to iron a wrinkled garment, she reached for the clothes iron. The court recounted what followed:
As Plaintiff slid the clothes iron’s plug into the socket in her hotel room, the plug exploded in her right hand and a ball of fire shot out from the wall. As a result of the explosion, plaintiff’s hand was charred and her hand and arm were electrocuted, causing neurological damage.
[a] supplier of a product is subject to liability in damages for harm to a person or to property if: (1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) The product was supplied by him or her in a defective condition that rendered it unreasonably dangerous; and (3) The defective condition was a proximate cause of the harm to a person or to property.
Ark.Code. Ann. § 4-86-102(a) (2009).
(6)(A) “Supplier” means any individual or entity engaged in the business of selling a product, whether the sale is for resale or for use or
(B) “Supplier” includes a retailer, wholesaler, or distributor and also includes a lessor or bailor engaged in the business of
leasing or bailment of a product.
(C) “Supplier” shall not include any licensee, as the term is defined in § 17-42-103(10), who is providing only brokerage and sales services under a license;….
Ark.Code Ann. § 16-116-102(6) (2009).
The Hammond court’s analysis is sound. Hotels simply do not place incidental products such as clothes irons or toothpaste into the stream of commerce. It’s logical to conclude that they are not sellers or suppliers. As such, I really need to stop thinking of hotels as a supplier of my necessities or better yet, I need to start double-checking my luggage when I travel!
Cunningham filed suit in state court in an ostensibly small class, purchasers of Learjets who had received a certain warranty. Learjet removed the action pursuant to CAFA, and the plaintiffs moved to certify two classes. The district judge denied both classes because neither could satisfy the requirements of Rule 23. This raised the question, however, of what should happen to federal jurisdiction under CAFA when the district court conclusively rules that the pending case is not a class action? While the district judge ruled that denial of certification terminates federal jurisdiction, the panel reversed and noted that the act is, after all, a fairness act.
[J]urisdiction attaches when a suit is filed as a class action, and that invariably precedes certification.
Furthermore, 28 U.S.C. 1332(d)(8) states that CAFA applies before or after certification by the court. Therefore, according to Posner, jurisdiction attaches upon filing and is not relinquished. Federal jurisdiction under CAFA is independent of certification. Moreover, as Posner notes, this interpretation keeps the fairness in the fairness act. If jurisdiction hinged on certification, then it would be possible for a district court to decline to certify and remand to state court, where the case could be certified on the state level and proceed as a class action. Such an outcome is not consistent with the purpose of CAFA.
While this may seem like a victory for defendants, my guess is that this will result in further structuring of lawsuits to avoid CAFA entirely, as noted in an earlier post. Posner himself notes in the opinion that if it immediately appears that a case cannot satisfy CAFA, i.e. a frivolous class action, then federal jurisdiction would never attach. The effect of this opinion, then, might be to actually reduce the number of class actions in federal court, rather than to increase the number of actions retaining federal jurisdiction subsequent to denial of certification.
An article published recently by The New York Times as part of its “Driven to Distraction” series (which is worth checking out: try the “Gauging Your Distraction” game that has you attempt to respond to texts while changing lanes) explains that in spite of huge risks, technology giants and automakers are bringing Internet access – by way of what have been dubbed “infotainment systems” – to drivers’ dashboards. According to the article, one such system expected to be unveiled by Audi this fall allows drivers to access the Internet and pull up information as they drive. A notice reportedly will pop up that reads: “Please only use the online services when traffic conditions allow you to do so safely.” Although some automakers plan to restrict access to potentially distracting functions while the car is in drive, much of the responsibility in limiting use while driving will lie with drivers.
The issue of distracted driving is at the forefront, as there has been a government push to curb distracted driving dangers. Even Oprah has joined the cause. In terms of the scope of damages, The New York Times article cited a 2003 study by Harvard researchers, who estimated that motorists talking on cellphones caused 2,600 fatal accidents and 570,000 accidents involving injuries a year.
So how does this translate into product liability litigation? In its recently published “Client Alert,” the Micheal Best firm sets forth the three most likely product liability causes of action to be alleged against creators of these “distracting” products:
(1) Design Defect–when the foreseeable risks of harm posed by the product could have been reduced or avoided; (2) Inadequate Instructions or Warnings – an omission of a warning that renders the product not reasonably safe; and (3) Failure to Warn–the seller’s failure to provide a warning after the time of sale.
Numerous successful civil lawsuits have arisen against the distracted drivers themselves, including one settled here in South Carolina this month for $5 million by the insurer of a driver who, while talking on her cellphone, struck and killed two bicyclists. It is only a matter of time before a floodgate of litigation opens against the makers of these distraction-inducing products.
BPA is an industrial chemical used to make a hard, clear plastic known as polycarbonate, which has been used in many consumer products, including reusable water bottles and baby bottles. BPA is also found in epoxy resins, which act as a protective lining on the inside of metal-based food and beverage cans. These uses of BPA are subject to premarket approval by FDA as indirect food additives or food contact substances. The original approvals were issued under FDA’s food additive regulations and date from the 1960s.
In its statement, the FDA acknowledged that the recent studies provided “some concern about the potential effects of BPA on the brain, behavior, and prostate gland of fetuses, infants and children.” This level of concern was first voiced by The National Toxicology program in its report on BPA.
The history between the FDA and BPA is a long and storied one. The seemingly incomprehensible chemical and its potential effects on the human body is almost as confusing as the FDA’s attempts to communicate its exact position on BPA. As one blogger has pointed out, the communication between the FDA and the public needs to be streamlined, and the issues with BPA need to be better clarified in order to re-institute the public’s trust in the FDA.
Since it’s Friday, we thought we’d share the above clip, which is one of our favorite depictions of a legal hearing in popular culture. It comes from the 1981 film, Absence of Malice, starring Sally Field as a naive young newspaper reporter and Paul Newman as the peeved object of her journalistic investigation (as well as that of her affection). Field’s reporter has been led to believe by the governmental authorities that Newman’s character is under investigation for murder. This scene, which comes late in the film, shows Wilford Brimley, who plays a senior Department of Justice official, taking everyone – and we mean everyone – to task for their unsupervised antics and sloppy approach to the administration of justice. (The second half of this clip can be found here).
Yesterday, in a divided opinion, the Fourth Circuit issued an important decision in the removal context of which defense counsel should be aware. In announcing its new adherence to the last served defendant rule, the Fourth Circuit stated that it would “join the Sixth, Eighth and Eleventh Circuits in adopting thelast-served defendant rule and hold that in cases involvingmultiple defendants, each defendant, once served with formalprocess, has thirty days to file a notice of removal pursuant to28 U.S.C. § 1446(b) in which earlier-served defendants mayjoin regardless of whether they have previously filed a noticeof removal.“ Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., — F.3d –, No. 08-1740 (4th Cir. Feb. 4, 2010) (PDF). For some early analysis on this matter, see this post at the North Carolina Appellate Blog.
This past December, the ABA Journal issued its third annual list of the best legal blogs. (We here at Abnormal Use are keeping our fingers crossed for best new legal blog next time!). Until then, though, at our Twitter page, we have created a public list of links to the Twitter accounts of all those so honored (at least all those with Twitter accounts). If you’re a Twitter user, you can follow that list here and see the original ABA Journal article here.
Self promotion mode on. Here in South Carolina, lawyers are now nearing the end of their CLE compliance year. Accordingly, one of our blog’s contributors – as well as another lawyer from our firm – will be making presentations to next week’s Greenville County Bar Association End of Year CLE. Senior associate and blog contributor Jim Dedman will be speaking about “Cybersleuthing 101,” a topic about which we can assure you he knows much. Shareholder Stuart Mauney will also be making a presentation entitled “The Lawyer’s Epidemic: Suicide, Depression, and Substance Abuse.” Mauney was recently appointed to chair the South Carolina Bar’s H.E.L.P. Task Force (Health and Education for Legal Professionals). You can learn more about the event, which takes place a week from today, on Friday, February 12, in this month’s Greenville Bar News [PDF].
Today, Abnormal Use inaugurates a new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the first installment, we turn to friend of the blog and law professor Rory Ryan, currently a member of the faculty at Baylor Law School in Waco, Texas. He teaches courses in Federal Courts, Civil Procedure, Appellate Procedure, and Constitutional Law. Professor Ryan was kind enough to answer the following questions (and even provide his own external links embedded into his responses). The interview is as follows:
1. What should attorneys practicing in federal court be aware of as we enter 2010?
(1) True notice pleading, as it seemingly existed a few years ago is dead. Become an expert in how your jurisdiction has interpreted the Twombly/Iqbal pleading standard, which is sometimes described as “Plausibility Pleading.”
(2) The Federal Rules have been “Restyled,” so pay attention to the new words (which aren’t supposed to have a different meaning);
(3) Major jurisdiction and venue legislation is pending. The Federal Courts Jurisdiction and Venue Clarification Act of 2009 is too varied and nuanced to even highlight in this space, so I’ve attached the Section-by-Section Analysis from the Office of Legislative Affairs and the Administrative Office of the U.S. Courts.
2. What is the most significant federal appellate court opinion to come out in the last year?
Ashcroft v. Iqbal from the Supreme Court, which solidifies that Twombly really did change the law. It has caused quite a stir both in the academy and among practitioners. And even for those who practice primarily in state court, it will be of interest to observe how many states follow the Supreme Court’s new rule. (I would call it an interpretation, but I just can’t bring myself to do it. The Court changed the law, and basically did so in a way that made the forms in the FRCPs fail the test set out by the rules. There’s a process for amending the Civil Rules—and that process involves Congress.)
3. What was the biggest surprise from the last U.S. Supreme Court term?
4. What advice would you offer to lawyers practicing in the area of products liability?
Read the following blogs: Drug and Device Law, Mass Tort Litigation Blog, and of course, Abnormal Use (this is where you add this blog to your RSS reader, (or learn what an RSS reader is and then add it.)) Also, learn everything you can about an important forum-selection tool you probably ignored in law school—fraudulent joinder.
BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.
It was August of 2005 when Mr. Sutton’s brush with history occurred. His problems began when he thought it would be a good idea to eat at a Duffield, Virginia gas station at 1:30 a.m. (If that’s not assumption of risk, what is?). Sutton and three others (or the “entourage” as suggested by the Court) noticed the fabled golden arches (a McDonald’s attached to the truck stop) and thereupon entered the “restaurant/convenience store.” Initially, it appeared that the McDonald’s franchise was closed. Not to be deterred, Mr. Sutton scoured the lot and found the McDonald’s employees assembled outside. Surely because the McRib was not in season, Sutton ordered a fried chicken sandwich. If only the McRib had been available; what a cruel mistress is history for denying him the McRib that fateful evening. However, Mr. Sutton, or perhaps the fates themselves on his behalf, chose a chicken sandwich. It was to be his undoing.
When Sutton bit into his sandwich, he immediately regretted his decision, for untold “grease flew all over [his] mouth.” Grease coated his lips and chin, and blisters formed immediately. Mr. Sutton found the McDonald’s employees (who were once again outside, doing whatever restaurant employees do outside their place of employment in the wee hours of the night). One of them attempted to defuse this tense customer relations moment with the following statement: “This is what happens to the sandwiches when they aren’t drained completely.” Id. Momentarily satisfied, Sutton and his “entourage” left the station, “[a]fter they finished eating.” Id. Within the next two days, Sutton realized that his injuries were more serious than he thought and sought out a doctor. Months later, Sutton saw a second doctor who treated him with lip balm. He then filed suit and demanded $2 million in his complaint. (One suspects that some associate somewhere had the unenviable task of drafting a memorandum as to whether properly draining later chicken sandwiches constituted inadmissible subsequent remedial measures.).
The district court granted summary judgment for McDonald’s and judgment as a matter of law to the franchisee. Really, the main issue of the ensuing appeal was the district court’s exclusion of the employee’s statement. The Fourth Circuit reversed the exclusion finding abuse of discretion, and ruled that the statement was admissible as a statement by a party-opponent under Federal Rule of Evidence 801(d)(2)(D). After all, the declarant was wearing a McDonald’s uniform, with other sufficient indicia of agency to bind the employer. Moreover, the appellate court found that the exclusion of the statement was harmful error because it evinced a standard of care. The panel also rejected the district court’s sua sponte act of finding Sutton contributorily negligent for “biting into the hot sandwich.” I would tend to agree with the district court, looking to the surrounding circumstances of voluntarily eating an early morning meal at a gas station as assumption of a known risk. However, the panel reversed the grant of summary judgment and ordered additional discovery.
On a jurisprudential note, it’s interesting how injuries from hot food or drink have entered the realm of compensable injury. Society has apparently come to accept the Goldilocks theory of liability, where all food must be served at the precisely “right” temperature. The hot coffee cases used to be laughable, but not anymore. The next time you find yourself at a restaurant or convenience store well past the witching hour, consider any claims you may have under negligence and the warranty of merchantability. Rest assured, whatever their merits, you may be entitled to a trial. Above all else, though, ensure that your chicken is properly drained.
Failure-to-Warn Claims Fail Without Evidence Plaintiff Would Have Pursued Alternative Course of Action
The plaintiff claimed that the Explorer’s seats were not designed for a person of her size and that Ford should have provided warnings. She claimed that she would not have purchased the vehicle if she had known that the seats were not designed or tested to perform with occupants of her size. She also claimed that Ford was negligent in failing to design and test seats for occupants who weighed more than 220 pounds.
The Court of Appeals held that it was it was essential to plaintiff’s failure to warn claim that she prove that “a warning would have altered the behavior of the individuals involved in the accident.” Id. (citing Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992)). Although Missouri law calls for a rebuttable presumption that the plaintiff would have heeded a warning had it been available, the court held that the plaintiff must still offer evidence that she would have pursued an alternative course of action in heeding the warning. Here, the plaintiff offered no evidence of what alternative course of action she would have taken had she been warned of the fact that Ford’s seats had not been tested for a person of her size.
The court found it significant that the plaintiff admitted she did not review the owner’s manual until after she had purchased the car. This undermined her theory that she would have altered her behavior before buying the vehicle, had Ford provided adequate warnings. The court held that there simply was no evidence that plaintiff would have altered her conduct in purchasing the Ford even if there had been warnings. That fact precluded recovery on plaintiff’s failure to warn claims.
First, the CPSC explained that “given the breadth of the definition of children’s products, there were numerous products that were technically noncompliant” but that would not likely cause lead absorption into the human body. While the CPSC utilized exclusions under the CPSIA, certain products such as youth all-terrain vehicles, children’s bicycles, lead crystals and rhinestones in children’s apparel, and brass materials in toys were denied exemption requests.
With respect to lead-in-paint limit enforcement, the CPSC reported 117 violations during Fiscal Year 2009, most of which were found during staff screening. Interestingly, the CPSC reported that they had “not seen the same implementation and enforcement issues with regard to lowering the lead paint limits as it has seen with the lead content limits.” Therefore, it did not identify any hurdles or make any improvement recommendations to Congress with respect to lead-in-paint.
All manufacturers and retailers first need to be aware of the lead limits now in effect as well as the proposed lower limits to be implemented in August 2011. However, based on the tone of the recommendations made to Congress, it appears that the CPSC is trying to address the burdens that these restrictions put on manufacturers and retailers without compromising the safety of our children. We all should be on the look out for possible revisions to the current CPSIA and its possible effect on liability for violations.