Recently, the First Circuit affirmed the decision of the District of Massachusetts in granting manufacturer’s post-verdict motion to alter or amend judgment, reversing judgment entered upon a jury verdict, by applying the relation-back doctrine. Coons v. Industrial Knife Co., No. 09-1791, 2010 WL 3516849 (1st Cir. Sept. 10, 2010) [PDF]. Three years after William Coons (“Coons”) was injured by an industrial paper-cutting knife while on the job, he filed suit against A.F. Chapman Corporation who he alleged manufactured and distributed the the knife that caused his injuries. A year later, after pre-trial discovery, A.F. Chapman sought, and was granted, leave to file a third-party complaint against Industrial Knife, alleging that Industrial Knife was the manufacturer and distributor of the knife. Almost two years after filing his original complaint, Coons sought, and was granted, leave to amend his complaint to assert claims against Industrial Knife.
You may have seen some of the more shameless plugs on other legal blogs requesting your vote for the annual best legal blog contest. If you’re drawing a blank, allow me to educate you on this matter. Very recently, The ABA Journal requested input from the law blog, or blawg, reading public to generate its annual list of top legal blogs. (As one who nominates a blog to the 100 best legal blogs list, you are referred to by the ABA as “blawg amici.”). You can find the nomination form and related information here. Obviously, we here at Abnormal Use take our blogging quite seriously, and we would never condescend to overtly request that you tell the fair editors at The ABA Journal how awesome we are. In fact, we specifically request that, if you were so moved as to submit Abnormal Use to The ABA Journal, that you not say that we are simply a “great blog.”
That’s just our way here at this site, and for better or ill, we can be nothing but ourselves.
Oh, and you’d best hurry. The nomination period ends this Friday, October 1.
The new legal drama “The Defenders,” not to be confused with the superhero team of the same name, premiered last Thursday night on CBS. The premise: Nick Morelli (Jim Belushi) Peter Kaczmarek (Jerry O’Connell) are rough and tumble criminal defense attorneys practicing in Las Vegas. The two name partners are not alone. Joining them is brand new associate Jess Merriweather (Jurnee Smollett, formerly of the excellent “Friday Night Lights”), who is mercilessly mocked by a menacing assistant district attorney for having paid for law school through exotic dancing. Although the program maintains a silly charm, it harbors the same sorts of lawyer cliches and conventions that we’ve seen on network television for decades. Alas.
Belushi, in this clip , describes the two leads as “working class guys who passed the bar and have a great street sense how to figure out the angles.” They go out into the field the day before trial and find new evidence or formulate new theories which ultimately save the day for their previously doomed clients. They’re brash, they’re smug, and they delight in their refusal to play by the book. TV critic Alan Sepinwall curiously referred to them as “ambulance-chasing Vegas defense lawyers,” although there is no reference to them practicing personal injury law.
Here is what I learned about the practice of law from the program:
As in all other television courtrooms, a lawyer can simply object by saying “Objection!” with some level of aplomb, and the court will rule thereupon. Presumably, this preserves error, as it happens so often on television without any ill effect.
At a charge conference, a defense lawyer can condescendingly yell at the judge, “You are wrong!” when a requested jury instruction is rejected.
Criminal defense lawyers, upon leaving said charge conference, advise their partners to handle the judge’s rulings as follows: “Screw him! Instruct them yourself!”
Prosecutors, rather than objecting, simply rise and scornfully ask “Judge, is there a question here?” when opposing counsel is querying a witness.
Judges, rather than ruling upon objections from the bench, say things like “leave the editorials for the papers.” (This is strange, too, because no one reads newspapers any more, right?)
First year associates are apparently already licensed on their first day at work, as they are left to fly solo at arraignments by partners too busy to accompany them.
Young male partners at criminal defense firms negotiate pleas by sleeping with ridiculously attractive and formidably ambitious female assistant district attorneys, and vice versa.
We’ve always dug Jim Belushi (especially in 1990′s Mr. Destiny), but we can’t say we’re too familiar with his modern television career, never having seen any of the 182 episodes of his sitcom, “According to Jim,” which apparently aired for eight years. O’Connell, for his part, we remember fondly from 1985′s Stand By Me, and his brief appearance in 1996′s Jerry Maguire, in which he did his own acoustic cover of Nirvana’s “Something in the Way.”
Let’s face the facts. Television writers are not lawyers. Their only legal education, so to speak, is watching the myriad awful television shows written by other television writers ignorant of legal practice and procedure. Thus, stereotypes and inaccurate portrayals are compounded and perpetuated indefinitely.
In the comic book cover above, World’s Finest #186, published in 1969, we learn that Superman may not be the biggest fan of the federal sentencing guidelines. Or the Eighth Amendment, for that matter.
Last week, we posted our review of the awful new television legal drama, “Outlaw,” starring Jimmy Smits. Just a few days later, the Above The Law blog published its own review of the first episode. Are we here at Abnormal Use now trendsetters?
John A. Day at the Day on Torts blog has a post entitled “Googling Potential Jurors,” in which he analyzes one trial court’s recent prohibition of Plaintiff’s counsel using Google in the courtroom to investigate those who might become jurors. On appeal, the appellate court rebuked the trial court for shutting down the searches. (See also this post at the Internet Cases blog for more on that same case).
David A. Oliver at the DRI Blog asks if we have now reached “The End of Toxic Tort Litigation in Texas?” That’s an often asked question, but Oliver has some new thoughts.
Lawyerist has this post on “How to Run Effective Meetings.” This should, perhaps, be mandatory reading for shareholders at firms across the United States.
Seattle Weekly offers its list of the seven best covers of Paul McCartney songs, with accompanying video. We might have included Stevie Wonder’s cover of “We Can Work It Out” (but perhaps that was influenced a bit too much by John Lennon to truly constitute a “Paul McCartney song.”).
Although in “Seinfeld” the culprit was a malodorous valet who was only briefly seated in Jerry’s BMW, here, it seems, the cause of the odor was BMW’s alleged use of excessive amounts of solvent on paneling in and around the trunk. The complaint alleged that BMW knew of and has even acknowledged in a Technical Service Bulletin the existence of an “unpleasant . . . solvent or wax crayon” odor, but that it refused to repair or replace the defective insulation after the four year or 50,000 mile warranty period passed. The odor, according to the complaint, often would take several years to manifest. The complaint set forth causes of action including breach of express and implied warranties.
In any event, the complaint, filed by Pennsylvania firm Chimicles & Tikellis and New Jersey’s Law Office of Lane M. Ferdinand, was recently tossed by U.S. District Court Judge Dickinson of New Jersey, who granted BMW’s motion to dismiss. The court held that the breach of express warranty claim failed due to the undisputed fact that the Plaintiff’s warranty had expired at the time the defect arose. Similarly, the claim for breach of implied warranty failed as the result of limits placed on any such claim within BMW’s warranty agreement. The court based this finding on the fact that the agreement provided, in conspicuous language, that the duration of any implied warranties was to be limited to the duration of the express warranties–”48 months or 50,000 miles, whichever occurs first.”
One of the more interesting problems in products law is how to handle the middle man. If the retailer does not design or manufacture a product, but merely stocks its shelves, can he be liable to a plaintiff who is injured by the product? Different states handle the question differently.
Since the 1990s, EIFS litigation has been a thorn in the side of the construction and insurance industries. Improper installation of EIFS (Exterior Insulation and Finishing System), sometimes called “synthetic stucco,” on homes across the United States resulted in a tremendous amount of litigation. Class action suits and individual litigation have been plentiful, with defendants often pointing the finger at each other as they ferret out responsibility for who must pay for the damages.
The Texas Supreme Court recently weighed in on some of these issues in Fresh Coat, Inc. v. K-2, Inc., —S.W.3d —-, No. 08-0592, 2010 WL 3277130 (Tex. August 20, 2010). The Court addressed the duty of a synthetic stucco manufacturer to indemnify a contractor that installed the stucco against claims of more than 90 homeowners who sued for structural damage, termite problems, and mold. The defendants settled the litigation with the homeowners, and the case proceeded to trial on the various claims that the defendants brought against each other. The jury awarded judgment to the contractor, Fresh Coat, for all damages requested against the manufacturer, K-2, Inc., which included indemnification for settlements that Fresh Coat made to the homeowners and to the homebuilder. The intermediate court of appeals in Beaumont affirmed the decision, with the exception of the amounts that Fresh Coat paid to the homebuilder. Both K-2, Inc. and Fresh Coat appealed.
In its appeal, K-2 urged the Supreme Court to rule that Fresh Coat, as a contractor for the installation of the synthetic stucco, did not qualify as a “seller” and that EIFS is not a “product,” such that K-2 would not have indemnity obligations arising under Chapter 82 of the Texas Civil Practices and Remedies Code. K-2 claimed that products placed into the stream of commerce and integrated into a house are transformed into real property and no longer retain their status as “products.” The Court disagreed, holding that a product is something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption. Here, EIFS was a synthetic stucco system made of component parts manufactured by K-2, that it was placed into the stream of commerce, and it was used in construction of homes.
K-2 further argued that Fresh Coat, as a contractor that obtained and installed EIFS, was not a seller. If Fresh Coat could be characterized as a service provider only, K-2 would not have a statutory requirement to indemnify. The Supreme Court held that Chapter 82′s definition of “seller” neither excludes a seller who is also a service provider nor requires the seller to sell only the product. The Court commented that its approach was consistent with the Third Restatement of Torts, which recognizes that a product seller may also provide services. As Fresh Coat provided the EIFS system and the services to install it, Fresh Coat qualified as a seller.
The Texas Supreme Court also ruled that the manufacturer’s statutory obligation to indemnify covers a settlement payment made by the contractor to the homebuilder, even where the contractor was independently obligated by contract to indemnify the homebuilder. The only exception under Civil Practices and Remedies Code Section 82.002(a)) to a manufacturer’s duty to indemnify sellers for losses arising out of a products liability action is for losses caused by the seller’s negligence, intentional conduct or other act or omission for which the seller would be independently liable. Because Fresh Coat made itself independently liable by contract, K-2 contended that it should not have to indemnify it. The Court held none of the statutory exceptions applied, leaving the manufacturer to bear the full loss.
An important reminder: When Plaintiff’s counsel attempts to inject prejudicial statements into litigation, object. A failure to do so can be perilous indeed. In Wicklund v. Pacific Cycle, L.L.C., No. 08-CV-486-GKF-FHM, 2010 WL 3368924 (N.D. Okla. August 23, 2010), Judge Frizzell of the Northern District of Oklahoma considered whether repeated references by the plaintiffs’ attorney to the Chinese origin of the alleged defective product, a bicycle, was grounds for a new trial or relief from judgment. Counsel for the defendant, Pacific Cycle, argued that the plaintiffs’ attorney “repeatedly, deliberately and impermissibly played to the perceived anti-Chinese prejudice of the jurors, thereby irrevocably tainting the verdict.”
You know, businesses that have chosen to export jobs to China for cheap labor, for cheap goods, I mean from a business side it’s understandable, but when you choose to do that, if you get quality control issues you have to pay when people get harmed from those. And that’s all that this case is basically about.
Above, you’ll find the cover for Superman’s Pal, Jimmy Olsen #28, published way back in 1958, which depicts Jimmy Olsen as “The Boy Who Killed Superman.” Note that he is in a police line-up, presumably for identification purposes, though the police officer is already presenting the evidence against him. (We love that there is a label tied to a piece of Kryptonite noting that it is “Exhibit B,” even though Olsen has yet to be identified, much less indicted or brought to trial.). We’ll leave it to the criminal lawyers to opine on whether the officer’s asking “Where have you hidden [Superman's] body?” constitutes a custodial interrogation. However, this being 1958, Jimmy would not yet have been afforded many of the protections fashioned by the Warren Court. Oh, well.
Speaking of comic books, after months and months of commenting upon silly and fun superhero/courtroom comic book covers in our Friday Links posts, we now learn that the Ivy League has taken an interest and created an exhibit on that very subject. Earlier this month, our friends at the Yale Law School Library debuted the exhibit, “Superheroes in Court! Lawyers, Law and Comic Books,”which is curated by Mark S. Zaid. If you find yourself in Connecticut, you must see this exhibition, which runs until December 16, 2010 . See here for some official information on the exhibit, including a handful of covers, some of which even we here had not previously seen. (Thanks to eagle eyed reader Ryan Steans for bringing this New York Times piece on the exhibit to our attention.).
Man, the Wall Street Journal Law Blog beat us to the punch with the Rolling Stones allusion in their piece on the Ninth Circuit’s striking down of a municipal tattoo parlor ban. South Carolina is no stranger to such issues, as it banned tattoo parlors until 2006, when the 36 year old prohibition, which had survived a constitutional challenge in the courts, was repealed by the legislature. For more on the Ninth’s Circuit’s recent ruling, see here, here, and here.
The Evidence Law Prof Blog analyzes a recent North Carolina case regarding the authentication of emails, still a hot topic, even after all of these years of email use.
Civility seems to be the issue of the week. The DRI Blog has a piece by Brett A. Ross entitled “Professionalism: It’s not Just for Kids Anymore,” in which the author notes that “as mature practitioners, we should know better how to respond to bad behavior by our opponents even though it often seems that is not the case.” Meanwhile, Lawyerist has “Are You Civil With Opposing Counsel?,” in which the author’s advice is “Stick to your guns and keep it civil. It will pay off in the long run.” And our pals at Overlawyered have this post, in which they analyze a recent scolding of uncooperative counsel by a U.S. Magistrate.
Yesterday, Kevin Couch, one of our intrepid bloggers at this site, posted his review of the new Jimmy Smits legal drama, “Outlaw.” Apparently, the show is about a U.S. Supreme Court Justice, played by Smits, whose frustration with the system causes him to resign his seat on the Court and go about righting wrongs and correcting injustices in the trenches. (It seems he was in a pretty good position to do that on the U.S. Supreme Court, but oh well, it’s television.). Our thought: It would have been much more interesting had this series been a direct sequel to “L.A. Law” and Smits was playing his old character Victor Sifuentes, who had somehow managed to make it all the way from Los Angeles to the nation’s High Court. Another potential benefit of that approach: Susan Dey cameos.
Finally, we learned this week that Bob Dylan, the immortal folk singer, the voice of his generation, will be playing a concert later this year in nearby Clemson. We’ve seen him before and walked away unimpressed, so we leave you with a piece from Seattle Weekly, entitled “Top 7 Reasons to Walk Out of a Bob Dylan Show.” (Full disclosure: we adore our CD of the 1966 “Royal Albert Hall” concert, but that show was some time ago.).