Products Liability: Celebrity Edition

In a post reminiscent of Us Weekly‘s “Stars: They’re Just Like Us” section, which offers photographs of celebrities doing inane things that “everyday people do,” (beautiful, famous people have to pump their own gas, too!), we’ll take a quick look at some of the many recent instances where celebrities have made headlines for products liability-themed events.

Right here in South Carolina in 2008, celebrities DJ AM and Blink 182′s Travis Barker were among six people aboard a Learjet that crashed during takeoff in Columbia. The four others on board were killed. Both Barker and DJ AM subsequently filed suit against the airline and the maker of the tires used on the aircraft, alleging that both were defective. One year later, in a very celebrity-like turn of events, DJ AM died from a drug overdose, whereupon his mother took over his $20 million lawsuit and amended it to include a wrongful death claim. She alleged that the crash ultimately led to DJ AM’s drug overdose and death. Both of those suits reportedly settled for undisclosed amounts.

In 2007, actor Dennis Quaid and his wife took their newborn twins for treatment of a staph infection at Cedars-Sinai Hospital in Los Angeles, where they were administered 1,000 times the prescribed dose of blood-thinning drug heparin. The twins eventually recovered, and Quaid subsequently filed suit against Baxter Healthcare Corporation, maker of the drug, alleging that the company did not sufficiently differentiate its packaging. Quaid’s children were supposed to receive a 10-unit dose of a diluted version of heparin, but instead mistakenly received 10,000 units of the undiluted drug. The lawsuit set forth that the bottles shared similar labels and a common shape. The couple’s suit was not about money, they said, but was an attempt to ensure no other parents endured the same experience.

Finally, as we previously reported here, Israel-based Teva Pharmaceutical Industries recently announced it would stop production of its widely used sedative propofol, after two headline-grabbing events issued blows to both its image and its financial well being. One of those events that garnered the most attention of the press was the death of Michael Jackson. The drug became infamous after the superstar died from an overdose of the sedative, in combination with other sedatives, which were administered by Jackson’s personal physician. As previously reported, although no product liability suit has yet arisen, Jackson’s devoted fans followed the Teva announcement closely in fanpages devoted to the star.

In the products liability arena, celebrities are, it seems, just like us. Except, perhaps, for accidental drug overdoses administered by a live-in, personal physician.

Failure to Survey Medical Literature may be Negligence Per Se

One issue in a recent decision by the District Court of New Hampshire was whether a generic manufacturer’s failure to comply with Food an Drug Administration (“FDA”) regulations constitutes a per se violation of its duty of care under New Hampshire law. Bartlett v. Mutual Pharm. Co., No. 08-CV-358-JL, 2010 WL 2765358 (D.N.H. Jul. 12, 2010). Judge Joseph N. Laplante answered in the negative, holding that the jury could consider the violation as evidence of a breach but it was not a per se breach of duty.

In Bartlett, Karen Bartlett sought medical treatment for right shoulder pain. Her physician prescribed a non-steroidal anti-inflammatory (“NSAID”) drug called Clinoril. Bartlett’s pharmacist filled per prescription with Sulindac, the generic version of Clinoril, manufactured by Mutual Pharmaceutical Company (“Mutual”). Two weeks after taking Sulindac, Bartlett was diagnosed with Stevens-Johnson Syndrome (“SJS”) progressing to toxic epidemal necrolysis (“TEN”), a serious and potentially fatal condition characterized by necrosis of the skin and mucous membranes.

As a result, Bartlett filed suit against Mutual asserting state law claims for strict products liability – failure to warn, strict products liability – defective design, fraud, and negligence. During discovery, it was found that the year prior to Bartlett’s physician prescribing Clinoril to her, an international medical journal found a link between NSAIDs and the conditions that Bartlett suffered from. It found 89 reported cases of SJS/TEN over a 17 year period in patients taking Clinoril, more than any other NSAID on the market. Also during discovery, Mutual admitted not being aware of the study and not monitoring medical literature for information on Sulindac’s safety risks. According to Mutual, the manufacturer of the brand named drug was responsible for monitoring safety risks.

On cross-motions for summary judgement, Bartlett argued that she was entitled to summary judgement on her negligence claim based on Mutual’s failure to survey medical literature for adverse events associated with Sulindac. Bartlett based this argument on the FDA requirement that generic manufacturers “develop written procedures for the surveillance . . . of post-marketing adverse drug experiences to the FDA.” 21 C.F.R. Section 314.80(b).

The Court interpreted this regulation to require generic manufacturers to develop procedures for surveying medical literature for information and studies on safety risks. Therefore, the question became whether Mutual’s admitted violation of this safety regulation versus violation of a statute could be a per se violation of its duty of care. The Court found that courts were split over whether plaintiffs could seek to enforce a FDA violation through a negligence per se action even thought the FDCA does not provide for a private right of action. Judge Laplante found no clear answer in New Hampshire but held that the New Hampshire Supreme Court would likely not treat the violation as negligence per se. Therefore, the court denied Bartlett’s motion for summary judgment and ruled that the jury could consider the violation as evidence of breach.

Drug manufacturers, generic and named-brand, must be aware of these FDA regulations governing surveillance of medical literature. Compliance with these regulations will be especially relevant in states that consider violations as negligence per se and not merely evidence of breach for the jury to consider.

Friday Links

Finally, the occasionally salacious, always funny eavesdropping website Overheard in New York provides link fodder for a legal blog. See here for a recent courtroom exchange which a contributor to that site overheard and reported.

Meredith R. Miller of the ContractsProf Blog asks in this post if a website’s privacy policy constitutes a binding contract.

We’re a bit surprised that Lawyerist has to ask, “Do Lawyers Need Smartphones?” It’s 2010. Everyone needs a smartphone. Lawyers (arguably) are a subset of people, and thus, they need smartphones. Why would they not?

A Kansas driver has a vanity plate that says “So Sue Me.” (Hat Tip: Overlawyered). One of our contributors – we won’t say who – has a vanity plate that says “LACHES.”

Speaking of Overlawyered, that site’s Ted Frank is going on a speaking tour to various states, but not South Carolina. We hope he’ll make it our way soon.

We always knew that Facebook would be the end of all things good and just. In this post, the Technology and Marketing Law Blog reports the following: “The Eastern District of Pennsylvania recently concluded that a Facebook ‘friendship’ between a Temple University disciplinary board member and a witness may have procedurally undermined a disciplinary hearing.”

Texas Products Liability Case Intertwined with Common Law Marriage Issue

When does a products liability action become inextricably intertwined with family law? Apparently, when the case is brought in Texas. In Crenshaw v. Kennedy Wire Rope & Sling Co., — S.W.3d —, 2010 WL 2601662 (Tex. App. – San Antonio 2010, no pet. h.), the court of appeals was confronted with issues relating to the alleged defectiveness of a wire rope sling as well as the elements of common law marriage in Texas.

That wrongful death case centered around the death of a floorhand who was killed while “moving two casing bails with the use of a braided wire rope sling.” The Defendants were Newco Manufacturing Company, the maker of a component hook, and Kennedy Wire Rope & Sling Company, the manufacturer of the integrated sling itself. Although the action was initially brought by the floorhand’s parents (who later settled), the appeal centered around the claims of the intervenor-common law wife of the floorhand, against whom a take nothing judgment was entered because the jury found that they had never been married. Thus, the jury never reached any of the liability issues in the case. However, the two defendants cross-appealed, contending the trial court erred in refusing to grant their motions for directed verdict, both on the issue of common law marriage as well as the underlying products liability claims.

After a lengthy analysis, the court ultimately concluded that the trial court’s jury instruction on common law marriage was flawed. Accordingly, it turned to the products liability issues.

In its appeal, Newco argued that “the evidence conclusively established that its component hook did not fail, and that it was not in any way involved in the design of the integrated wire rope sling.” Agreeing, the court of appeals rejected the common law wife’s reliance on the testimony of a Newco manager and the Plaintiff’s petroleum engineering expert. Although the common law wife had argued that the Newco manager had essentially admitted the hook was defective, the court noted that the manager’s testimony indicated only that the manager believed that the “whole assembled product” was dangerous, and only then under certain conditions, when there was slack in the line. As for the testimony of the retained expert, the court noted that he had conceded that the Newco hook had in no way broken or failed and that his belief was that slack in the line caused the accident, not the hook. Accordingly, the court of appeals found that Newco was entitled to summary judgment on the stated liability grounds.

Kennedy Wire was not so lucky. In rejecting its cross appeal, the court found that “reasonable minds could differ” on the application of Texas’s five risk-utility factors (which, as the court noted, “are used to determine whether the defective design of a product rendered it unreasonably dangerous”). In so doing, the court explained:

The evidence established that the particular design of the braided wire rope sling with a Newco hook was chosen by Kennedy. Before recommending the “improved” sling product to H & P, Kennedy made the decision to use braided wire rope, rather than single wire rope, and then chose the Newco number 3 choker hook for assembly with the braided rope, knowing it did not have a safety latch. Ryles testified that not only does Newco sell a similar hook with a safety latch, although only for use with single wire rope, but a competitor, Crosby, also sells a hook with a safety latch that can be used with braided wire rope. In addition, Ryles testified that the sling should have incorporated a hook with a safety latch in order for the whole product to be as safe as possible for lifting overhead loads-in case slack got in the line. McClay testified that the hook without a safety latch was “inappropriate for that particular job;” specifically, McClay stated that, although the hook itself was not defective and did not fail, the sling design incorporating a hook without a safety latch allowed the load to come unhooked when slack got in the line, causing the accident. In addition, there is evidence that Kennedy had the ability to make the integrated sling product safer for lifting overhead loads without impairing its usefulness or significantly increasing costs. Further, the testimony of Hubler and Garland Kennedy shows that Kennedy was well aware of H & P’s prior problems with chain slings that broke or failed and its need for a safer sling for use on it rigs, and yet recommended a sling that incorporated a hook without a safety latch. Hubler testified he would have liked to know about the option of using a hook with a safety latch, and that the additional cost would not have been an issue. Kennedy testified that incorporating a choker hook with a safety latch was feasible and would not have reduced the sling’s utility.

Accordingly, the court of appeals remanded that portion of the case back to the trial court.

Products Liability Case Dismissed for No Injury

It’s been a tough year for Toyota. The automaker has built a strong reputation based on quality craftsmanship, but plaintiffs’ lawyers keep piling on, filing suits like the one described here, accusing Toyota of ignoring acceleration problems for years. So far, however, the allegations regard economic loss: “The revised lawsuit was filed in U.S. District Court in Southern California on behalf of nearly 40 consumers and businesses for claims of economic losses, including diminished vehicle values, stemming from complaints of Toyota cars racing out of control.”

Plaintiffs may be better off in California, because the District of Utah granted Toyota’s Motion to Dismiss in a similar case, Winzler v. Toyota Motor Sales USA, Inc., No. 1:10-CV-00003, 2010 WL 3064364 (D. Utah Aug. 3, 2010). In Utah at least, a plaintiff must suffer some kind of injury before recovering money from a defendant. Winzler brought an action based on her 2006 Toyota Corolla. Incredibly, “Ms. Winzler does not claim that she has suffered any problems with the engine in her car.” She alleged that she has been injured because she did operate the car, and such operation exposed her to increased risk of personal injury. Or, I could have been injured, thankfully I was not, please pay me some money anyway. One of the quotes attributed to Winston Churchill is “The greatest thrill a man can experience is to be shot at and missed.” For some reason, plaintiffs do not agree and instead ruminate on the misfortune of not having been injured. It’s a shame really. All of these uninjured people walking around thinking about what they’re life had been like had they been injured.

You might guess that the District of Utah dispensed with the case quickly. To the court’s credit, it reasons through the law, rather then simply saying something like, “Every first year law student knows that you need an injury to recover.” Instead the court reasons why the cases cited by the plaintiff in support for her argument, alleging constitutional violations, have a different analytical framework than your average products liability action. Neither may Winzler recover for her supposed economic damages. In short, the Court noted that a plaintiff must suffer an injury to recover under a products liability, negligence, or breach of warranty theory. Because Winzler did not allege that her car has shown any defect, her suit was dismissed.

Coming back to the California case, it should be interesting to see what the different sovereigns allow in the forms of product liability claims. I imagine the plaintiffs’ lawyers have this figured out, and a great deal of forum shopping has already or will take place. Hopefully Toyota can dispatch with these types of cases quickly and move to the cases where there may actually have been an injury.

FDA Update on Cereal Recalls

As we recently reported here, this summer the Kellogg Company voluntarily recalled boxes of its Corn Pops, Honey Smacks, Froot Loops, and Apple Jacks due to “an off-flavor and odor” emanating from the cereal. We can’t believe that Toucan Sam, who always seems to be bragging about his nose, missed those foul-smelling boxes.

The FDA recently provided an update on the recall, explaining that the culprit causing the bad smell and taste appeared to be the wax paper liners in the boxes. According to the FDA, only about 50 reports of the foul smell were reported, and no one sustained a serious injury. One of the question-and-answer notes in the update caught our eye:

Are Waxed Papers Legal and Safe to Use in Food Packaging?
Yes, but only when they are manufactured and used in compliance with Federal Food, Drug and Cosmetic Act requirements and FDA regulations.

It comes as a reminder that the FDA does not only regulate the food on our shelves, but also its packaging, known in government-speak as “Food Contact Substances.” Other items with which you may be familiar in terms of the regulation of packaging that comes into contact with food include the debate that rages concerning the level of Bisphenol A, also known as “BPA,” in plastic containers and baby bottles.

More information about the regulation can be found on the FDA website page devoted to the wide world of packaging. In the meantime, we can apparently eat our favorite sugary cereal without first subjecting it to the smell test.

South Carolina Court of Appeals Rejects Pre-Impact Fear Recovery

Personal representatives in South Carolina cannot recover damages for those last few seconds of life when their decedent knew for a fact that they would die. Last week, the South Carolina Court of Appeals rejected a Plaintiff’s ability to recover damages for “pre-impact fear.” See Rutland v. South Carolina Dep’t of Transp., No. 4721 (S.C. Aug. 4, 2010).

That case involved a wrongful death action brought by the personal representative of the estate of a passenger killed following a highway automobile accident during a heavy rain storm. The Plaintiff sued various defendants, but all but the Department of Transportation settled out before the trial. (It’s unclear from the facts of the opinion what the Plaintiff’s theory of recovery was against the State.). The jury awarded the Plaintiff $300,000, but the trial court granted the Department’s post trial motion for set-off and reduced the verdict to zero.

The Plaintiff appealed. In its opinion, the Court of Appeals addressed various appellate points, but it is the Plaintiff’s second appellate point that is of interest. The Plaintiff had argued that “pre-impact” fear was recoverable in a South Carolina survival action “when the decedent suffered mental trauma before actual physical injury resulting in the decedent’s death.”

Citing some recent federal authority, and distinguishing an 80 year old case the Plaintiff had invoked in support of his theory, the Court of Appeals disagreed, noting as follows:

South Carolina does not recognize “pre-impact fear” as a compensable cause of action. See Hoskins v. King, 676 F. Supp. 2d 441, 451 (D.S.C. 2009) (concluding South Carolina law does not permit recovery for pre-impact fright). Also, we decline to extend the holding in [Spaugh v. Atlantic Coast Line Railroad. Co., 158 S.C. 25, 155 S.E. 145 (1930)] for the proposition that “pre-impact fear” is recoverable in this State.

In Hoskins, a case involving a cyclist killed after an automobile accident, Judge Joseph F. Anderson, Jr. had found that there was no support in South Carolina law for the recovery of such damages:

However, in addition to seeking the more established post-impact survival damages, Hoskins seeks damages for the split-second between when the rear tire of the bicycle touched the front bumper of the Pacifica and the impact of Thomas Hoskins on the windshield. However, this position does not find support under South Carolina law. Hoskins has cited many cases, from other jurisdictions which recognize recovery for pre-impact fright. In nearly all of these cases the victims knew they were going to die for a period of at least some seconds, not fractions of a second. Moreover, there was evidence in almost all of the cases that the victim saw their ending coming and there was no question that the victim consciously perceived the cause of his or her death-such as a car crashing in to the back of a tractor trailer, an imminent plane crash, or a pedestrian trapped on roadway.

In this case the King’s car closed from the rear at a high rate of speed, causing a tremendous impact-throwing Thomas Hoskins seventy-five feet in the air-and instantly killing him. A survival claim requires that the deceased consciously endure pain and suffering. Due to the severity of the impact, the court finds that the evidence does not demonstrate that the decedent had time to consciously perceive the means of his death, much less consciously suffer pain.

Further, the Court of Appeals had distinguished Hough as a case involving “a woman who became physically ill after experiencing a nervous breakdown when she was stranded by a train company” and that in that case the South Carolina Supreme Court had determined that there was sufficient evidence to conclude that the plaintiff had actually suffered “bodily injury.”

Friday Links

A judicial candidate in Florida may not personally promote his or her campaign on Facebook, says the Florida Judicial Ethics Advisory Committee in a recent opinion. However, the opinion does note that a committee working on behalf of the judicial campaign may establish such a Facebook presence; it’s just that the judge may not do so in his or her own personal capacity. (Hat tip: The Legal Profession Blog).

Hold onto your hats: The Workplace Prof Blog informs us that a new edition of The Bluebook has been published. Ah, The Bluebook. It will forever remind of those halcyon law school days when we performed citation checks on articles assigned to us by our law review editors.

The Detroit Free Press has a great article about crazy statutes still on the books. (Hat tip: The Business Law Prof Blog). Our favorite? It is illegal in Clawson to throw a snowball. Someday, perhaps, we’ll do a similar analysis of South Carolina laws.

We hope this one doesn’t go to litigation. The DRI Blog has a post entitled “Frozen Reptile Food Poses Salmonella Risk to Snake Owners.” Yikes. We’re at a loss.

Overlawyered reports on the interplay between the ADA and South Carolina courthouses.

Being an Expert Expert Doesn’t Make You an Expert

You know him well. He is the professional expert. No matter the issue, the case, or the product, there he is, opining that your client’s product is unreasonably dangerous, and unquestionably caused the plaintiff to suffer personal injuries, psychological damage, and lost income. In fact, as soon as you see this expert’s name at the top of the report, you can recite its contents, eyes closed and one hand tied behind your back.

Not so fast. In Beam v. McNeilus Truck and Manufacturing, Inc., 697 F. Supp. 2d 1267 (N.D. Ala. 2010), the Northern District of Alabama considered the defendant’s motion to exclude the testimony of Dr. L.D. Ryan, a mechanical engineer and professional expert, as to the defectiveness of the design of a garbage truck. The case involved an accident in which the plaintiff’s decedent, a garbage collector, fell or stepped off of the riding step of a garbage truck and died as a result of his injuries. The central issue of the case was whether the truck was defectively designed with regard to the riding steps.

The court carefully considered Dr. Ryan’s qualifications, noting that “Plaintiff’s expert . . . has little or no experience in the world of refuse collection, road-vehicle design generally, or garbage truck design specifically.” Furthermore, although Dr. Ryan had watched “three hours of videos on ‘YouTube,’ he has no training or experience in designing waste-hauling routes” and has no knowledge “about the history or evolution of rear-loading garbage-truck designs.” In fact, the court stated, the “mere fact that Dr. Ryan is a licensed engineer is, in and of itself, insufficeint to qualitgy him as an expert in this case.”

The court’s harshest criticism of Dr. Ryan’s so-called qualifications, however, was reserved for his status as the professional expert. The court made several references to the fact that Dr. Ryan had acted as an expert in hundreds of cases. In fact, the court devoted an entire footnote to Dr. Ryan’s career expertise, opining that “Dr. Ryan has been involved in hundreds of cases invovling a variety of products, and his testimony has been at issue in a number of those cases,” and providing a list of some of those cases.

With no actual expertise on the subject of garbage truck design, the court excluded Dr. Ryan and his reports. Without expert testimony as to the defective design, the plaintiff could not make her case, and therefore the defendant’s motion for summary judgment was also granted.

Bravo, Northern District of Alabama. Abnormal Use salutes you. Next time, plaintiffs, make sure your expert does more than watch YouTube.

Products Liability Meets Criminal Law

It’s not often that products liability concepts intersect with criminal law. Such was the case in South Carolina last week, when Circuit Judge Roger Young of Charleston, in a 41-page order [PDF], threw out the conviction and granted a new trial to a young man whose defense team “did not appreciate how unlikely the ‘Zoloft defense’ would result in an acquittal.” As a result of that failure, the judge held, the defense team did not seriously pursue negotiations for a plea deal.

The case at issue is one that has drawn national media attention. Christopher Pittman of Chester, South Carolina, was just 12 years old when he reportedly shot his grandparents as they slept in their home, set their house on fire, and fled the scene in their SUV. The nearly three-week murder trial was moved to Charleston County because of the extensive publicity the case had garnered in the Upstate. Pittman was tried as an adult at age 15, was found guilty, and was sentenced to 30 years in the South Carolina Department of Corrections. He lost his appeals to the South Carolina and U.S. Supreme Courts.

For his criminal trial, Pittman’s defense team was reportedly comprised not of criminal defense attorneys, but of “lawyers who specialized in suing pharmaceutical companies.” They blamed the murders on the prescribed anti-depressant Zoloft, saying it clouded Pittman’s sense of right and wrong. Prosecutors argued in response that the premeditated nature of the murders, along with the fact that Pittman subsequently burned his grandparents’ home and thus knew the killings were wrong, discounted the defense’s Zoloft theory. The jury agreed, refusing to buy the defense team’s argument that Zoloft somehow made Pittman commit the murders. According to a 2008 article in The New York Times, Pfizer Inc., the maker of Zoloft, called the case “tragic” but said, “Zoloft didn’t cause his problems, nor did the medication drive him to commit murder.”

In his recent order, Judge Young chastised the defense team’s strategy, noting that the team, led by a civil attorney Andy Vickery, seemed more interested in putting Zoloft on trial than in doing what was best for the defendant. “After Vickery’s team took over the media attention grew exponentially greater,” Judge Young wrote, “in large part because the defense team cultivated it in order to draw attention to the side effects of SSRI (antidepressant) drugs such as Zoloft.”

Interesting, reportedly one year after Pittman’s trial, the FDA began requiring Zoloft and other antidepressants to carry “black box” warnings, the government’s strongest warning short of a total ban, about the increased risk of suicidal behavior in children. It does not, however, extend the warning to include potential homicidal risks.