• Check out the comic book cover above for Superman #176 (published way back in 1965). Superman has apparently just been sworn in as a witness, presumably at a criminal trial, and has been asked to state his name for the record. Why he decided to answer via chalk on a chalkboard seems peculiar, despite the dilemma he faces in revealing his identity in open court. Surely, the prosecution previously addressed this matter via motion in limine to thwart any attempt to place the Man of Steel in this tough spot. In fact, considering Superman’s role as a crimefighter, it is very likely that it would be the prosecution calling him as a witness to testify against the defendant, which begs the question: Why would the prosecution place Superman in this terrible, terrible position? Of course, the best bet may be for Superman to reply that his name is Kal-El, the moniker given to him by his Kryptonian parents. How could the defense attorney object to that?
• “[W]e face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived.” Fox Television Stations, Inc. v. Federal Commc’ns Comm’n, — F.3d —-, 2010 WL 2736937, at *7 (2d Cir. July 13, 2010) [PDF]. It was in that opinion that the Second Circuit struck down the FCC’s so-called “fleeting expletives” policy. We here at Abnormal Use are not certain why the court felt it necessary to reference the conception of social media company founders (and we wonder if some federal law clerk had to do that math). For more on that opinion, see this post by Christine A. Corcos at the Media Law Prof Blog.
• A lesson from the Third Circuit: If you a a corporate officer that is a party to litigation, and your Chief Financial Officer is on the stand at trial testifying, don’t send him text messages about his testimony while the judge is conducting a sidebar with counsel. It’s generally bad form, and the judge will declare a mistrial. For more, see this post by Jeffrey Kuntz at The Florida Legal Blog.
• J. Benjamin Stevens at the South Carolina Family Law Blog offers this post about the perils of litigants posting about themselves on Facebook.
• Speaking of which, the South Carolina Court of Appeals this very week released Jennings v. Jennings, an opinion in which the issue was a husband’s claim that his wife had improperly logged into his Yahoo account, printed emails about his purported girlfriend, and provided said emails to her attorney and an investigator.

In the case of Sheehan v. The North Am. Mkting. Corp., —F.3d—-, 2010 WL 2598390 (1st Cir. June 30, 2010), Plaintiff brought a products liability action in Rhode Island against a swimming pool seller and manufacturer for negligence, strict liability, and breach of express and implied warranties, seeking to recover damages for injuries that she sustained after attempting to dive into an above-ground pool holding only 3 1/2 feet of water. As might have been anticipated, Plaintiff broke her neck, rendering her a quadriplegic. She claimed in her lawsuit that the pool was defective in its design. The lower court granted summary judgment to the defendants on the grounds that both Plaintiff’s proof of proximate cause was unduly speculative and that she assumed the risk of serious injury when she attempted the dive. The Plaintiff appealed to the First Circuit Court of Appeals. While the Court wavered on the issue of whether Plaintiff had set forth sufficient evidence in order to reach a jury as to proximate cause, the Court could not look beyond Plaintiff’s own actions in assuming the risk of her injuries.

In a case against pharmaceutical giant Merck that ended with a mistrial in September 2009 when jurors became hopelessly deadlocked, the jury for the second go-round recently awarded the plaintiff $8 million, which was reportedly $3 million more than her attorneys had asked for.

The case was one of several bellwether cases being tried in federal court in Manhattan involving Merck’s osteoporosis drug Fosamax. The company is reportedly facing more than 1,000 cases in state and federal courts in which plaintiffs allege the drug is defectively designed in that it can cause a jaw-destroying condition known as osteonecrosis. According to The Wall Street Journal, of the so-called bellwether cases, one was thrown out last year, a jury recently found in favor of Merck in a second, and a fourth is set to be tried in November.

United States District Judge John Kleenan oversees the federal Fosamax cases. He has set a hearing for September in which Merck will present post-trial motions to overturn the recent verdict. In this regard, it appears as though the plaintiff’s $8 million verdict may be in jeopardy.

Paul F. Strain, counsel for Merck, reportedly has said in a post-trial statement that he believes the jury’s verdict was a result of “plaintiff’s counsel’s inflammatory and prejudicial remarks.” And it appears as though Judge Keenan agrees. Although Merck unsuccessfully moved for a mistrial, arguing that plaintiff’s counsel improperly used his closing statement to encourage the jury to punish Merck with its verdict, Judge Keenan, 80, reportedly told lawyers of the closing outside of the jury’s presence: “I have never heard a more outrageous summation in my life than the one I heard yesterday.” Encouraging words for Merck officials, who recently issued a statement indicating the company’s intent to challenge the jury’s verdict.

No, today’s post isn’t an homage to Arnold. Or maybe it is . . . . If you are like me, you are likely growing tired of all of the product recalls that have been issued this year. We here at Abnormal Use try to stay on the cutting edge and provide our readers with up-to-date and timely information whenever a recall is issued. Think of us as the informant to the informed.Whether it’s McDonalds’ Shrek glasses, SpaghettiOs, Tylenol, or baby strollers, we were there for our readers. Despite the wonderful content for our blog, I believe that our readers, like most Americans, are beginning to hit their saturation point with all of these product recalls.

Recently, there was a great article in The Washington Post that addressed this very issue. This phenomenon actually has a name: “product fatigue.” In her article, the writer points out that people are becoming confused by the number or recalls or even worse, simply ignoring the recalls.

In a recent action in front of the U.S. District Court for the District of Rhode Island, defendants in a product liability action argued that the plaintiff failed to satisfy the pleading requirements of Twombly [PDF] and Iqbal [PDF] because she failed to identify the manufacturer of the product she alleged to have caused her injuries. District Judge William E. Smith, disagreed with defendants, finding plaintiff had “made out facially plausible claims against each Defendant, alternatively.” Koch v. I-Flow Corp. et al., C.A. No. 09-441 S., 2010 WL 2265670 (D.R.I. Jun. 7, 2010) [PDF].

• If there is one thing we here at Abnormal Use love more than wings, it’s liability releases arising from the consumption of wings. We recently learned that Grille 33 at the Channel, a burger joint that just opened up a block from our offices here in Greenville, has officially issued its “Tito’s Wing Challenge” (pictured above, click to enlarge). Note the stern pronouncement written in red chalk: “Must Sign Waiver.” Now, we here were too chicken to accept the challenge (as we have a very delicate palate), but we did manage to review the waiver in question (pictured below, click to enlarge). Someday, though, we will muster up the courage to take the challenge, but it shall not be today. No, not today.

• The Texas Lawyer‘s Tex Parte Blog reports on a new iPhone 4 products liability suit recently filed in the U.S. District Court of the Southern District of Texas. Meanwhile, Randall Ryder at Lawyerist claims that “lawyers are wasting their money if they think [the iPhone 4] will add a new dimension to their practice.” Well, to that, we can only say, that but for our handy iPhone 4, we would not have been able to take those crisp pictures depicting the Tito’s Wing Challenge and the required liability waiver.
• The Litigation and Trial Blog speculates that Facebook founder Mark Zuckerberg will not bring a defamation suit as a result of the upcoming film, The Social Network, which details the founding of Facebook. He might do some defriending, though, we suspect.
• Jeffrey V. Mehalic of the West Virginia Business Litigation Blog spends some time talking about Barbour v. International Union, in which the Fourth Circuit adopted the last-served defendant rule for removal purposes. A good post, that. (We previously mentioned the Barbour opinion briefly here).

To foresee or not to foresee, that is the question. Well, at least its the question when you are arguing for summary judgment on the basis of the plaintiff’s failure to produce evidence on the issue of proximate cause. In a recent unpublished decision by the United States Court of Appeals for the Fourth Circuit, the court reviewed the seemingly symbiotic relationship between the proximate cause element in a negligence action and the requirement that the injury be a foreseeable consequence from an act or an omission. Graham v. Progress Energy, Inc., No. 08-1906 (4th Cir. June 25, 2010) (unpublished) [PDF].

In Graham, the court was reviewing the district court’s grant of summary judgment in favor of the defendants. The case arose out of an incident in which the plaintiffs’ home caught on fire. The fire started after the plaintiffs began using candles as a source of light. The reason that they had to use candles was that they failed to pay their electric bill and thus the power to their home was disconnected. On the date that the fire occurred, the plaintiffs had fallen asleep before extinguishing their candles. The plaintiffs sued Progress Energy on a negligence based claim.

The court framed the narrow issue as being “whether a reasonable jury could conclude that Progress’s alleged negligent conduct proximately caused the Grahams’ alleged harm.” The defendants did not dispute causation-in-fact. They admitted that it was foreseeable for the plaintiffs to use candles to illuminate their home. However, Progress Energy contended that the plaintiffs actions (i.e., falling asleep before extinguishing the candles) was an intervening cause that broke the chain of causation. Furthermore, the defendants claimed that while using candles to illuminate their home may have been foreseeable, …”going to sleep with the candles lit or otherwise failing to attend to the candle so as to prevent them from falling was certainly by no means so.”

The court opined that the defendants’ argument “misconstrues the relevant inquiry because South Carolina law does not require that particular events be foreseeable.” The court went on to reason that only the general harm and general intervening cause need to have been foreseeable. The court found that since candle use was foreseeable, a reasonable jury could have concluded that some amount of candle misuse was also foreseeable. Finally, the court pointed to evidence within the record that supported the conclusion that the plaintiffs’ alleged harm was also foreseeable. As such, the court reversed the grant of summary judgment.

The court’s analysis, albeit sound, leaves the ordinary practitioner wondering what is the true meaning of an intervening cause. The answer is found in the procedural posture of this case – this appeal involved the review of a summary judgment order. Perhaps on remand, the once (and future?) fixture of the American judicial system will resolve this issue. Of course, I’m referring to the jury trial. For all of you out there, who like me, have only been practicing law within the last decade, allow me to explain. A jury is the fact finder that resolves factual disputes during a trial. We’ll discuss the term “trial” during our next lesson. As for our weary candle users, one thing we can be sure of– it is foreseeable that the jury will have to determine issues like comparative and contributory negligence before these plaintiffs will be permitted to recover for leaving the light, I mean candle, on.

“Shoot all the bluejays you want, if you can hit’em, but remember it’s a sin to kill a mockingbird.” This advice by Atticus Finch to his young daughter Scout is as poignant today as it was when Harper Lee first published it 50 years ago this week in To Kill a Mockingbird. This Sunday, July 11th, 2010 marks the Golden Anniversary of Lee’s iconic novel about courage, racial prejudice, compassion, and access to justice. This beloved story is second only to the Bible on several reading lists for books that “make a difference.”

While he is fictional, Atticus Finch has served as a role model and inspiration for many lawyers since his creation in 1960. His unwavering courage in defending Tom Robinson is best summed up in his own words to his son, Jem: Courage is “when you’re licked before you begin but you begin anyway and you see it through no matter what.” Atticus was persistent. He never lost faith in the American jury system, notwithstanding the terrible injustice of the guilty verdict rendered against his client.

What does Atticus Finch have to do with products liability? Not much. What does access to a jury trial have to do with products liability? Everything! In the same 50 years since the publication of To Kill a Mockingbird, the Federal Rules of Civil Procedure have been amended 10 times. With the exception of the rewrite in 2007 to make them easier to understand (which is worthy of an entirely separate blog entry), it is challenging to argue that the amendments have made access to a jury trial in federal court easier or more efficient. These assertions are borne out by the dramatic fall off in civil cases tried to a verdict in U.S. District Courts across the country. In 2009, according to the Clerk’s Office for the U.S. District Court of South Carolina; 3,532 cases were filed and only 21 cases or .0059% were actually tried to a verdict. Using a cost benefit analysis one must at least ask the question: Does this level of utilization justify the cost of the system?

Blame it on ADR, the FRCP, run away verdicts, cost, or the reason du jour. The fact of the matter is that the civil jury trial is on the endangered species list. The primary distinguishing factor of the American civil justice system is our jury trial. Access to the jury trial in Federal court must not only be preserved, it must be improved. If we truly view Atticus Finch as role model then it is time for lawyers to step up, shoot some bluejays and save the mockingbird. How do we do this?

On May 10th and 11th the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States sponsored a conference at Duke University School of Law. In addition to the judicial participants, over 70 panelists and speakers came together to discuss major substantive revisions to the FRCP, and ultimately, access to jury trials in federal court. Matters being considered included, but were not limited to: Pleadings, Discovery, Protective Orders, and Cost and Delay. Our firm’s lawyers through their membership in the Lawyers for Civil Justice have been involved in and supportive of this movement for improving the FRCP and access to the civil jury trial. Follow this link [PDF] to the LCJ White Paper submitted at the Duke Conference. If you have yet to get behind this effort, now is the time to make your position known. If you would like more information about this exciting opportunity for change please contact us.

And remember, while, “[i]t’s a sin to kill a mockingbird,” it may be a greater sin to let one die when there is an opportunity to revive it!

Happy Fourth of July from Greenville, South Carolina. We are out of the office today, still observing the Fourth of July holiday and recovering from yesterday’s revelry. We trust that all of our readers exercised reasonable care over the course of the holiday weekend. If not, then perhaps you’ll be the subject of a future products liability post here on our blog. As for our lawyer readers, we hope that they paused briefly to reflect upon the ideals of our Founding Fathers who crafted our American system of justice, which despite its occasional flaws and hiccoughs, remains the best and most just in the world. They don’t teach you this in law school, but it is acceptable, sometimes, to lower that cynical facade. (This photograph above, taken just blocks away from our Greenville office on the Fourth of July 4, 2009, comes from the photoblog, Greenville Daily Photo.). Oh, and don’t expect a Bastille Post from us in a week and a half.