• Whew. We survived Tax Day yesterday. To celebrate, we direct your attention to the above video of George Harrison and Eric Clapton playing “Taxman” (from the 1966 Beatles album, Revolver) in Japan sometime, we suspect, in the early 1990s.
• Over at Osler’s Razor, law professor Mark Osler asks the age old question, “What should be required in law school?” A good question. (Incidentally, this coming Monday is Osler’s “Last Lecture” at Baylor Law School before he heads off to a new post at the University of St. Thomas Law School in Minnesota).
• We here at Abnormal Use love ABC’s “Lost.” We really do. We realize this makes us both law nerds and sci-fi nerds. SPOILER ALERT: This past Tuesday, on that show, Desmond Hume (Henry Ian Cusick) accelerated his vehicle in a school parking lot and crashed directly into wheelchair-bound John Locke (Terry O’Quinn). In Desmond’s defense, he may have done that just to awaken Locke to the notion that they are all living in a possibly sinister alternate reality, but that’s neither here nor there. In real life, though, Dr. Justin Sattin, Assistant Professor of Neurology at the University of Wisconsin School of Medicine and Public Health, has criticized the portrayal of the accident, claiming that the manner in which Locke reacted to the accident was not exactly accurate. Far be it for us to criticize the realism of a show about a magic island with time travelers. But when we watched that scene, the most unrealistic thing to us was the fact that 10 different Plaintiff’s lawyers didn’t show up with business cards immediately after the accident. (Hat tip: TV Tattle.).
• And finally, why do we never get trials like the one depicted below, in which Superman, apparently, is prosecuting Lois Lane for the murder of his former sweetheart, Lana Lang. (Note: Superman probably has one of those Lawyer as Witness ethical conflicts.). It seems Batman is defending Lane from the criminal charges. Click the image to enlarge.
Incidentally, in case you were wondering, that comic book is Superman’s Girl Friend Lois Lane #99, originally published in February 1970. No word on who actually won the trial.

In Tobaccoville USA, Inc., v. McMaster, No. 26799, 2010 WL 1439108 (S.C. April 12, 2010) the South Carolina Supreme Court heard a certified appeal in which the attorney general was in a discovery dispute with a tobacco company. The dispute stemmed from the attorney general’s assertion that various privileges applied to Tobaccoville’s request for documents. The actual documents themselves were not identified in the opinion. However, based upon the references to the Master Settlement Agreement (MSA), one can reasonably conclude that Tobaccoville was seeking disclosure of documents relating to either the MSA itself or documents relating to the underlying litigation that was resolved by the MSA. In 1998, South Carolina, like many other states, entered into the MSA with the tobacco companies to settle litigation brought by the states to recover health care expenses that were allegedly related to tobacco use.

The supreme court remanded the case to the administrative law court for a determination of whether the alleged privileged documents are indeed confidential communications pertaining to the underlying litigation. The court also relied upon a Southern District of New York case for the proposition that the similar documents between an attorney general and the NAAG were protected by the attorney-client privilege. See Grand River Enterprise Six Nations, Ltd. v. Pryor, No. 02 Civ. 5069(JFK)(DFE), 2008 WL 1826490 (Apr. 18, 2008 S.D.N.Y.). Coincidentally, or maybe not so coincidentally, Grand River is the same manufacturer of cigarettes at issue in Tobaccoville USA, Inc. v. McMaster. It appears that the administrative law judge will now have to perform an in camera inspection of the documents to determine whether the attorney-client privilege actually applies to the disputed documents.

On April 13, 2006, ReNu with MoistureLoc contact lens solution, manufactured by Bausch & Lomb in its Greenville, South Carolina facility, was voluntarily withdrawn from the market in the United States when an increased number of consumers who used MoistureLoc began to develop Fusarium keratitis. On May 11, 2006, Bausch & Lomb met with the Federal Drug Administration and announced that they decided to remove the product from the market worldwide.

In May 2009, Baush & Lomb moved to exclude the testimony of Plaintiffs’ expert, Dr. Elisabeth Cohen, with respect to non-Fusarium infections. As reported by the Drug and Device Law blog on August 27, 2009, Judge Norton, along with Judge Shirley Werner Kornreich of the Supreme Court of the State of New York, granted Baush & Lomb’s motion to exclude “Dr. Cohen’s general causation opinions relating to non-Fasarium infections.”

The Court concluded that since Plaintiffs’ general causation expert, Dr. Cohen, was excluded, Plaintiffs could not prove general causation, and thus, could not prove the essential causation element of any products liability action. Further, the Court disagreed with Plaintiffs’ assertion that they could prove causation through Physicians’ differential diagnoses. This is a “technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Judge Norton stated that Plaintiffs could not rely on this technique to “end-run” the general causation requirement.

Since Judge Norton’s ruling on February 17, 2010, two individual non-Fusarium Plaintiffs have filed motions to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Baush & Lomb has filed a response to one Plaintiff’s motion, and Baush & Lomb has filed a motion for summary judgement as to all other non-Fusarium Plaintiffs that were inadvertently not included in the February 2010 order. Therefore, be on the lookout for further rulings on the non-Fusarium Plaintiffs in addition to resolution of those claims by Fusarium

Several weeks ago, we here at Abnormal Use had some fun with Mr. District Attorney #53, in which the title prosecutor performed a direct examination of a canine eyewitness during a criminal trial. Well, today, we turn to the following issue of that epic comic book series, Mr. District Attorney #54. Take a look at the cover pictured above (and click to enlarge) and you’ll see the bizarre contest that the District Attorney is engaged in with some nefarious criminal. At first glance, the fly on the sugar cube gambit seems puzzling, but upon reflection, it may be more effective than mediation in some cases.

We’re not certain whether to chuckle or wince at last week’s post at Change.org called “Friday Unwind: 5 Ridiculous Lawyer Ads.” Maybe we’ll just cry. (Hat tip: Overlawyered).

Finally, someone steps up to respond to allegations that the iPhone is not secure enough to serve as the communications device for lawyers. Ben Stevens, a practitioner in our neighboring city of Spartanburg, South Carolina, and author of The Mac Lawyer blog, offers his treatise on this topic in a post entitled “The Truth about iPhone Security.”

The South Carolina Women Lawyers Association’s Blog: The Briefcase has posted a transcript of South Carolina Supreme Court Justice Kay Hearn’s recent speech to the SCWLA’s Midlands Region chapter. It is entitled “Judicial Independence.”

Above the Law notes in a post this week that the 2010 graduating class of the University of South Carolina School of Law has it right with respect to its chosen class gift.

Eric Goldman over at the Technology and Marketing Law Blog summarizes and comments upon an interesting Fourth Circuit case, Robinson v. Wix Filtration Corp. L.L.C., — F.3d —, No. 09-1167 (4th Cir. March 26, 2010). At issue was the Plaintiff’s failure to respond to a motion for summary judgment; Plaintiff’s counsel indicated that their firm’s computer system suffered a viral infection which, among other things, caused them to temporarily lose their Internet domain name and access to their email addresses (which, in turn, meant that any electronic filing notices from the federal district court would not have been received by them, including notice of the filing of the summary judgment by the Defendant in that wrongful termination case). The Fourth Circuit found that the Plaintiff had no remedy in this situation, although the opinion did draw a strong dissent. The lesson: If you have computer problems, you’d better login to PACER and monitor your federal cases. Any other option is fraught with peril. (See additional news coverage of this opinion here.).

The Third Circuit has ruled that defective sperm is not the proper basis for a products liability suit. We are grossed out by this jurisprudence. (See news coverage here.).

The case arises out of a plane crash that occurred shortly after takeoff on January 21, 2005. Id. at *1. The crash resulted in the deaths of the pilot and all four passengers. Id. The Plaintiffs in this consolidated action were the heirs of the four deceased passengers. Id. The plane’s engines were manufactured by Honeywell’s predecessor-in-interest in 1979. Honeywell repaired the plane’s left engine in 2003 and subsequently declared that the engine was airworthy. Id. The Plaintiffs brought suit against Honeywell for wrongful death on three theories: (1) negligent repair of the left engine; (2) strict product liability; and (3) breach of implied warranty. Id.

The majority of the opinion dealt with each parties’ respective motions to exclude expert testimony. However, the most intriguing portion of the opinion was the court’s analysis of Honeywell’s Motion for Summary Judgment on the Plaintiffs’ strict liability and implied warranty claims. Honeywell argued that since it had only repaired the engine in 2003, Kansas law would not support a claim for strict product liability or breach of an implied warranty when there was not an accompanying sale of the product. Id. at *8.

The court began by recognizing the fact that the Plaintiffs had conceded that their claims for strict liability and breach of warranty were not based on an alleged defect in the engine when it was originally manufactured and sold in 1979. Id. The court then provided a brief summary of Kansas law with respect to strict liability and implied warranty claims. Specifically, the court stated that Kansas, with respect to strict liability claims, had adopted section 402A of the Second Restatement of Torts. Id. at *9. As such, liability attaches to one who sells a defective product. The court also reiterated that Kansas courts have required a plaintiff to show that the good’s defect was present when it left the manufacturer’s control and that an implied warranty arises out of a contract for the sale of goods. Id.

In response, the Plaintiffs argued that Honeywell’s repair of the left engine in 2003 was of such magnitude to have constituted a remanufacturing of the engine. Id. Nevertheless, the court stressed the fact that there was no evidence that the repair in 2003 constituted a sale: “[t]here is no evidence, however, that the title to the engine did not remain with the owner during repair or that the engine was re-sold by the defendant at that time.” Id. Furthermore, the court relied on Kansas law for the proposition that the term “manufacturer” includes one that remanufactures a product before its sale to a consumer. Id. Finally, the court held that under Kansas law, which is now in line with the majority of jurisdictions, a claim for strict liability or breach of an implied warranty will not extend to repair situations where there is not a sale of the product. Id.

Thus, in light of this opinion, it appears that the bleeding will now stop with regards to strict liability and breach of implied warranty claims arising out of a repair of a product that has already been sold.

As I prepare to leave for Las Vegas to attend the annual DRI Products Liability Conference, I have been thinking about the current state of products liability law in the United States. As everyone knows, our current products liability law consists of separate laws – including a myriad of statutes, codes and case law – in every state, some of which conflict and some of which overlap, supplemented by various federal laws, rules and regulations. As a result of this conflicting system, U.S. products manufacturers face increasingly complex and expensive litigation which has expanded exponentially over the years. With a couple of possible exceptions, one would be hard-pressed to find an area of litigation that has become more expensive than products liability.

There is also no question that manufacturers who produce products for use in the United States are the most regulated, legislated and litigated industry in the world. The question is whether there is too much regulation and litigation and, if so, what can and/or should be done to ease this burden so as to ensure that U.S. products manufacturers can compete in the global economy. It is obvious that relief is needed. We have all read the news and it is not good. Jobs are being lost daily, the United States industrial and manufacturing community is shrinking rapidly, if not dying, and products manufacturers face substantial litigation exposure and expense, all of which makes it extremely difficult for them to compete.

This burden needs to be substantially reduced. So what to do? Some would say the answer is to take products liability law out of the hands of the states and place it under the control of the federal government in the name of uniformity and consistency. God forbid that this occur. While allowing states to generally control products law does lead to some problems and inconsistencies, the federal government has done nothing worthwhile in the legislative arena in the last several decades and what it has done generally creates more problems than it solves. The current health care fiasco will, I believe, prove this point conclusively. That legislation will most assuredly lead us down the path of substantially higher health care costs, increased taxes and decreased quality of care. Turning control of the health care system in America over to the likes of Congress, including congressmen who are afraid Guam might tip over, and whoever might be in the White House at any given moment is a terrible idea and allowing it to take over products liability law would be just as bad, if not worse.

Another, and I would submit, much more appropriate remedy is to abolish the doctrine of strict liability. Strict liability laws were introduced at a time when products manufacturers needed regulating. These laws have clearly served their purpose of requiring U.S. manufacturers to make the safest products in the world. That they do so is really without question. To coin a phrase – planes, trains and automobiles – as well as toys, food, electronics, pharmaceutical products, medical devices, you name it – if it is designed and manufactured to be sold here, it is the safest product in the world. However, the doctrine of strict liability is no longer used to ensure reasonable safety; rather, it has gone beyond reasonableness to the point where a degree of “defensive design and manufacturing” akin to the concept of defensive medicine, is required. This has driven up costs, both on the design and manufacturing side as well as the back-end cost of defending litigation involving strict liability claims.

Assuming this to be the case, one answer is to do away with strict liability laws. Would doing so result in manufacturers suddenly abandoning the concept of making safe products? I think not. Would it result in a multitude of defective products being dumped into the marketplace? I think not. Would it result in manufacturers being able to make sensible decisions in designing and manufacturing products without having to worry about the concept of “defensive design and manufacturing,” thus lowering costs? I think so. Would it result in fewer frivolous claims being filed and litigation costs being driven down substantially? I think so. Is this a bad thing? Absolutely not!

Let me hasten to say that I do not believe that manufacturers should be insulated from liability where they are negligent and/or grossly negligent in connection with the design or manufacture of products. If they are negligent and they cause harm, they should pay reasonable actual damages. If they are reckless and consciously indifferent in their conduct, they should be liable for reasonable punitive damages. However, should they be liable after having used all due and reasonable care in the design and manufacturing process simply because some paid expert somewhere says that he or she thinks the product is defective or unreasonably dangerous? It seems to me that the time for that cause of action has come and gone.

As society changes, laws which, when enacted, fulfilled a valid and societal purpose become unnecessary. It is no longer necessary for us to legislate the manufacture and use of buggy whips. Times change, and the need for laws change, as well. Has the time to do away with the concept of strict liability arrived? I think so.

A Florida jury recently ordered two cigarette companies to pay a total of $26.6 million to the widow of a longtime smoker who died of lung cancer after smoking for more than 50 years.

The verdict, handed down on March 24, was the latest in a string of “Engle progeny” cases to be submitted to Florida juries in recent years. Engle v. R.J. Reynolds was a landmark class-action lawsuit filed in 1994 against makers of cigarettes, in which a Florida jury awarded the plaintiffs $145 billion. This award was subsequently overturned by the Florida Supreme Court in 2006.

However, in doing so, the court reportedly did allow the approximately 700,000 Florida smokers in that class to pursue their claims individually. In addition, the state supreme court actually allowed the findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thereby reducing the burden of proof required in these subsequent actions. This likely has served as a significant advantage for plaintiffs’ counsel, who go to trial without having to jump the causation hurdle. As a result, the defendants’ strategy is also limited.

Of the 13 Engle progeny cases to reach juries in the last 13 months, plaintiffs have won 11. Counsel for the tobacco companies have alleged that each of these cases raises constitutional issues, though, because allowing one jury to rely on the findings of a prior jury that are totally unrelated to the individual smoker at each trial is in violation of both Florida law and due process.

Representatives for Philip Morris have said it will appeal the jury’s latest verdict on the grounds that the trial court improperly eliminated the majority of the plaintiff’s burden of proof. However, as of now, at least, it appears as though the latest will be one of a continuing string of verdicts to strike blows to the tobacco industry.

From July 2002 to April 2007, Plaintiff Mary Cleo Couick took generic metoclopramide pills for treatment of gastroesophasgeal reflux. Reglan, the name-brand version of the drug, was manufactured by Wyeth, Inc. and Schwarz Pharma, Inc. Couick stipulated that she only took the generic version of this drug. However, Couick filed suit against both the name-brand manufacturers and generic manufacturers claiming that they failed to adequately warn her doctors about the risks associated with metoclopradmide, which caused her to develop tardive dyskinesia.

Against name-brand manufacturers, Couick brought claims for negligence, breach of undertaking special duty, misrepresentation by omission, negligent misrepresentation, constructive fraud, fraud by concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, unfair and deceptive trade practices, breach of express warranty, and breach of implied warranties. In response, name-brand manufacturers filed a motion for summary judgment.

The Court first found that since “[e]ach of [Couick’s] claims [are] based on the premise that Wyeth and Schwarz are liable for Couick’s physical condition because they failed to adequately warn Couick’s doctors about the dangers of metoclopramide,” Couick’s claims, while masked in various legal theories, were a single claim for products liability.

The Court then held that under clear North Carolina and Fourth Circuit authority, a “name-brand manufacturer’s statements regarding its drug [cannot] serve as the basis for liability for injuries caused by another manufacturer’s drug.” As a result, the Court granted name-brand manufacturers’ motion for summary judgment.

This case is instructive to products liability practitioners in two main respects. First, despite a plaintiff’s artful pleading, claims based upon personal injury or property damage as a result of the manufacture, construction, design, selling, advertising, etc. of the product, is generally considered only one claim under a state’s products liability law. Second, the rule that a name-brand manufacturer is not liable for injuries caused by another manufacturer remains intact. See Foster v. Am. Home Products Corp., 29 F.3d 165 (4th Cir. 1994). Recently, we have reported on a number of cases here against drug manufacturers. This re-affirmed rule will become particularly important as these types of suits increase.