Hot Coffee Case Dismissed in Louisiana

Today, we examine the question whether anyone in the United States is unaware that coffee is served hot enough to burn skin. While any reasonable person is aware that coffee is, in fact, hot, Gerald Colbert thought it was 1992 again and sued Sonic Restaurants because it “failed to warn him and other customers of hot coffee, failed to keep its coffee at a proper temperature and failed to make sure its coffee cups were in a safe condition.” Colbert alleged that he received second degree burns through “his blue jeans in his groin area, stomach/abdomen area and thigh.” Thankfully, Judge Stagg, in granting summary judgment against Colbert in Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010) did not have to discuss any damages discovery. While we occasionally poke fun at litigiousness, the following are some things that struck me about this case:

1. This case was filed and state court and removed. Therefore, I assume that Colbert was forced to concede that he suffered over $75000 damage to his “groin area.” I also assume that the parties thought that use of the phrase “groin area” was appropriate. Use of the phrase “groin area” only makes this suit seem more comical. Can’t we all agree that a groin is a groin without appending the word “area?” We get it.

2. Only in law do we have to assess whether someone is a “sophisticated user” of hot coffee:

The summary judgment evidence in this case clearly classifies Colbert as a sophisticated user of Sonic’s coffee. Colbert testified during his deposition that he is a regular coffee consumer and that he has purchased coffee from Sonic numerous times prior to the incident. . . . In fact, Colbert admitted during his deposition that he has previously spilled hot coffee on himself.

Think about what went in to getting this admission. Case was filed, answered, written discovery served, discovery reviewed, deposition prep on both sides, and Colbert drove himself to the attorney’s office, probably with coffee in hand, and knew that he had no cogent, helpful answer for when he would be asked the question whether he had spilled coffee on himself.

3. In response to the summary judgment motion, Colbert came forward with his own affidavit, which apparently struck his lawyer as the best (or cheapest) way to respond. Colbert then turns into part scientist, part logician to come up with this (paraphrased) Aristotelian formulation of a syllogism: Premise 1. Water boils and turns to steam at 212 degrees Fahrenheit. Premise 2. I observed steam coming from my coffee. Conclusion – My coffee was 212 degrees Fahrenheit. Uh, no. I’ve never had a cup of coffee at a roiling boil. You haven’t either.

It’s not 1992. I think everyone is aware that coffee is hot everywhere and not just at McDonald’s. Colbert imposed systemic costs on the courts, as well as all of us who enjoy the wonderful fare offered by Sonic. It’s hard to know whether this is an economically efficient result, since we can’t really know if this case will deter any other sophisticated users from coffee litigation, but in the short run, lots of money was spent defending a meritless claim. Congratulations, Sonic, in choosing justice over economics.

Abnormal Interviews: Lawyer/Comic Book Collector Mark Zaid

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For our latest installment, we turn to lawyer and comic book collector Mark Zaid of The Law Office of Mark S. Zaid, P.C. in Washington, D.C. If you frequent this site on Fridays, you know that we occasionally – okay, perhaps more than occasionally – feature old comic book covers with legal themes accompanied by our commentary. In one such post, we mentioned Mr. Zaid when discussing a recent Yale Law School exhibit featuring comic books with courtroom covers. That exhibit, “Superheroes in Court! Lawyers, Law and Comic Books,” runs until December 16, 2010 and features much of Mr. Zaid’s collection. In fact, Mr. Zaid contributed so many comic books to the exhibit that he was asked to serve as its curator. Our interview with him is as follows:

1. How did you first become interested in collecting comic books with legal themed or courtroom covers? Do you remember the first one you saw or bought?

It was not too difficult or a stretch of any imagination to start collecting legal related comic books. I actually first started collecting comics with espionage titles or covers as my legal practice area is tied to the Intelligence Community. In essence, I represent spies, i.e., federal employees who work at agencies such as the CIA. At first I was seeking out comics that had legal connections to them such as ashcans (trademark submissions), Library of Congress deposit copies or books that had served as trial exhibits in litigation. As I simply perused through collections I had bought I started to see courtroom covers or titles involving attorneys and a light bulb appeared above my head and I realized that it was impossible for me not to collect this genre as well!

2. How did your interest in these types of comic books lead to the “Superheroes in Court! Lawyers, Law and Comic Books” exhibit at the Yale Law School Library?

Michael Widener, the Rare Book Librarian of Yale Law School, contacted me and invited me to serve as the curator of the exhibit. Apparently he had been asking around the community and one name continually cropped up as the person he should speak with: me. Of course, I jumped at the invitation. How could I resist the opportunity to combine my two passions: the law and comic books!

3. Do you see any consistent themes in the comic books’ portrayal of the legal system? If so, what have you noticed?

As far as character development goes, lawyers for the most part have been favorably portrayed over the decades. There are fortunately more super-heroes who have been lawyers than villains, although there have been our share of those as well. Comic books primarily, at least historically, reflect what is culturally popular in society at the time. Thus, at a time when Perry Mason dominated the television and radio airwaves it should not surprise anyone to see more legal scenes or characters emerge in comic books. But what I am particularly interested in is the impact lawyers have actually had on the comic book industry. Comic book characters, titles and even companies have been born or died because of the role that lawyers have played throughout the last century. It is incredible to truly evaluate the significance of lawyers in helping build the industry that exists today.

4. In our own blog posts featuring legal themed comic book covers, we’ve been surprised at the frequency of comic books artists’ usage of courtroom imagery. Why do you think they continue to return to those types of covers?

Again, I think the answer can be found in what is culturally popular in society at the time. Mr. District Attorney hit the radio airwaves in 1939. Comic books picked up on the character right afterwards. Just think of all the popular hit television/radio shows in every decade since then that have featured lawyers as the primary character if not served as the raison d’etre of the entire program. Comic books are simply following in those footsteps.

5. Of all the legal themed comic books you have collected, what is your favorite cover?

I don’t believe I really have a particular favorite, but I am certainly very partial to Detective Comics #240. It combines both a trial scene of Batman and the use of a polygraph machine. I sued the FBI, Secret Service and DEA over their use of pre-employment polygraph examinations and often handle polygraph challenges throughout the Intelligence, Law Enforcement and Military Communities. What makes the device so special is that the “father” of the modern day polygraph is William Marston. Under the pseudonym Charles Moulton, he created “Wonder Woman” whose magic lasso requires those bound by it to tell the truth. When I testified before the Senate Judiciary Committee in 2001 on the use of polygraphs, I noted how the device and Wonder Woman’s magic lasso shared one thing in common: they were both based on science fiction!

[Editor's Note: We here at Abnormal Use previously discussed Detective Comics #240, the image of which can be found above, here.]

6. How do you find legal themed comic books covers?

I find the books through a variety of means, but primarily at comic book conventions and through auctions. My search for these books is fairly widely-known within corners of the community so many times other collectors/dealers point them out to me.

BIOGRAPHY: Mark S. Zaid practices in the areas of litigation and lobbying on matters relating to international transactions, torts and crimes, national security, foreign sovereign and diplomatic immunity, defamation and the Freedom of Information/Privacy Acts.

[Editor's Note: The comic book cover at the top of this blog entry is that of Crime Detective Comics #8, published way back in 1948.]

Friday Links

  • If you didn’t see this past weekend’s “Saturday Night Live” parody of lawyer Gloria Allred, please see the clip above.
  • Alas, poor “Outlaw,” we hardly knew ye. Deadline Hollywood reported this week that NBC finally pulled the plug on the struggling drama just a week after it placed the show on “production hiatus.” (Incidentally, in the law firm world, “production hiatus” is probably a term the senior partners use to describe vacationing associates.). As for “Outlaw,” we were a bit confused by the show’s premise, which we noted in our review of the first episode. The terrible blow of this loss, though, is softened somewhat by the news of a forthcoming Napoleon Dynamite animated series.
  • Todd Zywicki of The Volokh Conspiracy notes that the Center for Class Action Fairness has objected to the Classmates.com class action proposed settlement, as the class will receive $117,374, while the lawyers have asked for $1.05 million.
  • We congratulate Texas Lawyer Roger G. “Bob” Vial who, according to this post at the Tex Parte Blog, recently spent his 85th birthday working in his law office. According to his Texas Bar profile, he was initially licensed in September of 1950, no doubt making him a temporal contemporary of Don Draper. After long hours of document review, we sometimes feel like we’re octogenarians, but we can’t imagine actually being eighty years old and choosing to come into the law office, or work of any kind, for that matter. Kudos to Mr. Vial for his commitment to the profession.
  • The Legal Blog Watch has its own commentary following up on our earlier post about the Wii class action litigation.
  • Earlier this week, we published our interview with criminal law professor Mark Osler of the University of St. Thomas School of Law. Here is a post from his blog linking to our post and offering a thought or two on the interview.

Who was Leo Klugherz?

This past Tuesday, Orin Kerr of The Volokh Conspiracy remarked upon the case of United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), a notable Fourth Amendment case in which future U.S. Supreme Court Justice John Marshall Harlan II – then an Assistant U.S. Attorney – argued before a Second Circuit panel which included the famed Justice Learned Hand, who ultimately authored the opinion in that case. Kerr noted playfully: “Counsel for the defendant, a Mr. Leo Klugherz, is slightly less known.” Perhaps so.

But that prompted our diligent researchers here at Abnormal Use to do a bit of cybersleuthing and investigation into the past of Mr. Klugherz. Who was this unsung participant in this case who once stood in a room with a future U.S. Supreme Court Justice and one of the most famous jurists never to serve on that Court? What’s his story, and what became of him?

All we know from the Kirschenblatt opinion is that he was a criminal defense lawyer who represented those accused of doing those things that were illegal during Prohibition.

Klugherz is certainly not remembered on the Internet. A simple Google search of “Leo Klugherz” reveals very little, and in fact, the most prominent result is Kerr’s post.

So we dug deeper, and we learned a bit more about this “slightly less known” attorney.

Leo Henry Klugherz attended law school at New York University and was admitted to practice law in 1904. According to this 1919 law directory, for at least part of his career, Klugherz practiced out of New York’s Liberty Tower at 55 Liberty Street. A Westlaw search of his name reveals that he was counsel of record in nearly 80 reported opinions from 1918 to 1941 (the first of those being People v. Smorack, 119 N.E. 1065 (N.Y. 1918) (per curiam)). He was described as a “splendid lawyer and delightful companion” in Norman Levy’s 1958 book, My Double Life: Adventures in Law and Letters. He would live another fifteen years after the Kirschenblatt case.

His two paragraph obituary, published in The New York Times on October 19, 1941 (and only available through The New York Times subscription paywall archive), noted:

Leo H. Klugherz, a member of the New York bar for thirty-five years who had specialized in criminal law, died yesterday at his home, 1937 Eighty-first Street, Brooklyn, after a day’s illness of heart disease, at the age of 58.

Mr. Klugherz leaves a widow, the former Stella Schoenfeld, a daughter, Marjorie, two sons, Richard and Daniel, and a sister, Mrs. Blanche Rosen.

His son, Daniel, apparently became a documentary film-maker.

Klugherz seems to have had quite the legal career. The same year Kirschenblatt was released, Klugherz squared off against Harlan in another appeal, that being Horowitz v. United States, 11 F.2d 1009 (2d Cir. 1926) (per curiam). However, the facts of that case may be lost to history, as the Westlaw entry is simply an affirmance without an accompanying opinion.

Of further interest, Klugherz was no stranger to Learned Hand.

Aside from Kirschentblatt and its companion case, United States v. Kirsch, 16 F.2d 204 (2d Cir. 1926), Klugherz appeared before Learned Hand in the following reported cases:

  • United States v. Adamowicz, 82 F.2d 288 (2d Cir. 1936)

  • United States v. Busch, 64 F.2d 27 (2d Cir. 1933)
  • Grossberg v. Mulligan, 48 F.2d 93 (2d Cir. 1931)
  • United States v. Auerbach, 47 F.2d 1086 (2d Cir. 1931)
  • United States v. Grossberg, 47 F.2d 597 (2d Cir 1931)
  • Maqueo v. Hecht, 32 F.2d 1021 (2d Cir. 1929)
  • Picker v. United States, 28 F.2d 1017 (2d Cir. 1928)
  • Rouda v. United States, 10 F.2d 916 (2d Cir. 1926)

Most were per curiam opinions or affirmances without opinion (and it’s unclear whether he participated in oral argument, if any, in the cases), but the Rouda case resulted in a full opinion authored by Learned Hand who once again addressed Prohibition era facts.

It gets better: Klugherz also appeared before Justice Augustus Hand, Learned’s first cousin, on at least two occasions, those being:

  • Guterman v. Moore, 46 F.2d 1022 (2d Cir. 1931) (per curiam)

  • United States v. Rosenstein, 34 F.2d 630 (2d Cir. 1929) (Manton, J.)

According to Westlaw, on at least three occasions, the U.S. Supreme Court denied his petitions for cert.

The full transcript of a 1921 assault case defended by Klugherz is available at the Lloyd Sealy Library’s “Trial Transcripts of the County of New York 1883-1927” collection at the John Jay College of Criminal Justice. Alas, that transcript is on microfiche and not online in any form.

Klugherz never lived to see Harlan become an Associate Justice of the U.S. Supreme Court, a position to which he was appointed in 1955. However, in that court room in the 1920s, Klugherz surely knew that Harlan, his opponent, was the grandson of a U.S. Supreme Court justice.

Though he is not remembered today, it certainly seems that he had a long and storied career.

Defense Verdict in Latest Big Tobacco Case

According to this recent piece in the Montreal Gazzette, of all publications, a Florida jury last week found that two of the nation’s tobacco giants, Philip Morris and R.J. Reynolds, were not responsible for causing a man’s laryngeal cancer after he smoked an average of 1.5 packs of cigarettes per day for 37 years. The case was Willis v. RJ Reynolds & Philip Morris USA.

This was the latest trial in the series of “Engle progeny” cases, as we previously discussed here, wherein approximately 8,000 Florida smokers have filed lawsuits against tobacco companies in the wake of a 2006 Florida Supreme Court ruling. Howard Engle, a Miami doctor and smoker, lent his name to a class action law suit that represented approximately 700,000 ill or deceased Florida smokers. In that case, $145 billion in punitive damages was awarded to the plaintiffs. The decision was later overturned by the state’s appellate court and supreme court, both of which held that the award was excessive.

The ruling allowed plaintiffs in the class to file individual lawsuits against tobacco companies. Interestingly, it also allowed findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thus significantly reducing the plaintiffs’ burden of proof in these cases. This ruling was hotly contested by the tobacco industry, which argued that allowing one jury to rely on findings of a separate jury raises due process issues. Subsequently, in July, the U.S. Court of Appeals for the 11th Circuit issued its ruling in Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010) [PDF], which established limits on plaintiffs’ referencing the Engle case in meeting their burden of proof at trial. (See R.J. Reynolds’ press release on this ruling here.). Tobacco companies have argued that courts have since failed to fully comply with this ruling.

This most recent trial, which lasted three and a half weeks, was actually the second time the case was tried. The first trial reportedly resulted in a mistrial when one juror wanted to award the plaintiff $50 million, and other jurors wanted to award $12 to $15 million. The Plaintiff, who was 16 years old when he began smoking, said that he began his days by smoking a cigarette and that he sometimes would wake in the middle of the night to smoke. His lawyers reportedly said that he tried to quit several times by leaving his cigarettes in his car when he went to work. The defense argued at trial that the Plaintiff made a conscious decision to continue to smoke, even after becoming aware of health risks.

After the defense victory, Philip Morris issued a statement, wherein a representative said that this verdict “shows that juries recognize that plaintiffs are responsible for their own smoking decisions. . . Even with rulings by the trial court that gave the plaintiff an unfair advantage in violation of Florida law and due process, the verdict for the defense shows that Philip Morris USA still has powerful defenses.” This certainly was an important victory for the tobacco industry, which has otherwise been hit with a series of big losses in these cases.

Wii Class Action Strikes Out: Hang on to Your Controller

I used to think the story was an urban myth. I’ve heard accounts of people who became so wrapped up in a spirited game of Nintendo Wii baseball or bowling that they let go of the controller, only to watch in horror as the strap around their wrist broke and the controller sailed across the living room and hit grandma, or, more likely, smashed their 62-inch high-def, plasma television:

Apparently not. In fact, there are so many people who have had this happen that some smart plaintiff’s lawyer filed a putative class action for them, perhaps hoping to get new $2,000 TVs for everyone. Or at least new $1.99 wrist straps.

Well, as Lee Corso would say, “Not so fast, my friend.”

On September 23, 2010, the U.S. District Court for the District of Colorado granted summary judgment for Nintendo in Elvig, et al. v. Nintendo of America, Inc., No. 08-CV-02616, 2010 WL 3803814 (D. Colo. Sept. 23, 2010) [PDF] on the class’ claims under the Colorado Consumer Protection Act, as well as theories of breach of implied warranty of merchantability and fitness for a particular purpose. (Hat tip: The Mass Tort Defense Blog)

We believe that Mass Tort Defense has it wrong, however, on the Court’s take on the implied warranty of merchantability claim:
On the implied warranty of merchantability, the court cited the lack of evidence that would indicate what the intended purpose of the strap was. One might plausibly assume, as plaintiff did, that the strap was intended to prevent a controller, inadvertently released by the player during vigorous activity, from hurling towards the player’s television (or towards another player) and causing damage. But equally, one might assume that the strap was simply intended to keep an inadvertently released controller in the vicinity of the player so that it could be easily retrieved and was was never intended to withstand the forces of high-speed controller release.

Honestly, we really hate siding with plaintiffs, especially when they’re running around filing lawsuits based on their own lack of common sense (“If I release this controller in the process of it swinging toward my TV . . . .). But to surmise that the wrist strap is designed to do anything but keep the controller strapped to your wrist is a bit of a stretch.

Still, we like the decision, because it reaffirms our sense of fair play. People who voluntarily join sports teams and leagues can’t complain when they are injured in the normal course of the game or match–indeed, as active members of our own city’s softball law league, we have seen more than our fair share of injuries. The same rule should be applied to full contact video games.

One final note: apparently, at least one TV manufacturer has now designed its television screens to withstand the force of a flying Wii controller. Take a look.

Abnormal Interviews: Law Professor Mark Osler

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to criminal law professor Mark Osler of the University of St. Thomas Law School in Minneapolis, Minnesota. The interview is as follows:

1. What recent developments in criminal law and procedure would you recommend that civil litigators be aware of?

With the Supreme Court reconsidering the rights of corporations, it will be interesting to see how that affects an important criminal law rule—that the 5th Amendment right against self-incrimination does not apply to companies. If organizations have a general right to free speech, they may also be the beneficiaries of such rights, which could strongly affect the prosecution of white collar crime.

2. In your experience, what is the biggest misconception that civil litigators have of the criminal process?

In civil law, the defendant often is advantaged by an arduous and lengthy discovery process, which wears down the plaintiff. In criminal law, this simply does not apply. Discovery in the criminal case is a different beast, and much less important—for the government, the investigation is the discovery, and in many jurisdictions defense attorneys are then given open access to the government files. I went from corporate civil litigation to federal prosecution, and I remember being shocked to find that instead of waves of interrogatories and depositions, a simple search warrant executed by the FBI did the trick. It is brutally efficient.

3. What is your opinion of the expanding usage of the RICO statute as a theory of recovery in civil actions? What, if anything, do you foresee on this front?

The pairing of civil and criminal RICO was one of the worst ideas a law professor ever had (yes, one of us dreamed that one up). The extensive rule-making by courts in civil RICO cases has made interpretation and use of the statute so confusing and inefficient that prosecutors avoid it if they can, preferring to charge money laundering or something under the fraud statutes. Given the current state of the law, in which civil RICO is used to tie people up in endless litigation, we would be better off without RICO in the federal code.

4. What is the most significant federal appellate court opinion to come out in the last year?

Few would argue that the Citizens United case, through which the Supreme Court allowed free speech rights to organizations in the context of political campaigns, was anything less than a blockbuster. As I mentioned above, the expanding idea of corporations and other organizations as individuals could alter many current doctrines.

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

Pick the right mentor. Find someone with enthusiasm for what they do, who views his or her work as a calling of some kind. Do not accept a jaded mentor, or cynicism about the practice of law. If there is no one like that in your firm, you are not in a good place. If that’s where you are, well, we have room for you in criminal law, where there are plenty of true believers on both sides of the bar.

BONUS QUESTION: What do you think is the best depiction of a criminal trial in popular culture? The worst?

Best: American Violet, because the filmmakers stayed true to the story and resolved the case without a trial—a very realistic outcome these days.

Worst: My Cousin Vinny. Ugh. If someone quotes that me movie to me again, I may have a seizure.

BIOGRAPHY: A former federal prosecutor, Professor Osler teaches criminal law and sentencing at the University of St. Thomas School of Law, the faculty of which he joined in 2010. For the past ten years, he was a professor at the Baylor University School of Law in Waco, Texas. He is the author of Jesus on Death Row: The Trial of Jesus and American Capital Punishment, which was published in 2009. His blog, Osler’s Razor, can be found here.

Friday Links

Above, you’ll find the cover of Adventure Comics #213, published way back in 1955. (Surely, George McFly read this issue.). Superboy, employing a tactic he would later utilize years later as Superman, flies in through the courtroom window at the precise moment that a verdict is to be delivered by the jury. The question: Is Superman moving for new trial? If so, why not wait until the jury has actually rendered its verdict? After all, the jury may well render the verdict Supes thinks the new evidence demands. And by the way, where’s the counsel table? Oh, well.

Speaking of comic books, last week, The New York Times Artsbeat blog reported that the world famous Comic-Con would remain in San Diego, California until at least 2015. We were hoping it would move here to Greenville, South Carolina. Alas.

The EvidenceProf Blog comments upon a recent opinion from the Tennessee Court of Criminal Appeals, which found that evidence of the defendant’s post crime purchase of a Superman t-shirt was admissible before the jury. There’s a motion in limine we would love to have written. Imagine all of the allusions that could have been placed therein!

Lawyerist has an interesting post about the utility of Twitter for attorneys. We’re still curious about the advantages of Twitter, both as lawyers and lawyer bloggers. If you look to the sidebar on the right hand side of your page, you can see our most recent tweets. Typically, though, we are simply alerting the Twittersphere to our current posts here. However, over the coming weeks, we do have a few exciting things planned for our Twitter account, including the possibility of some live tweeting from an upcoming legal conference.

Meanwhile, Eugene Volokh of The Volokh Conspiracy analyzes a recent opinion in which the Texas Court of Criminal Appeals found that a death row defendant’s conversion to Satanism was admissible in his death penalty retrial. Probably the right result there. (The EvidenceProf Blog also has a piece on this case here.).

Brian Peterson of the West Virginia Law Legal Weblog posts about a bankruptcy judge in Ohio who was so irked by the “document speaks for itself” objection that he has prohibited its usage in his court. This reminds of us of one of our law professors who was similarly annoyed by the “asked and answered” objection, which he insisted was a nonsensical “television objection.” The proper objection, he would tell us, is “repetitious.”

A View of the Prempro Litigation from a Different Angle

In the midst of the ongoing, far-reaching Prempro litigation apparently sits a very colorful judge. Businessweek recently published this article, which takes a in-depth look at 70-year-old U.S. District Judge Bill Wilson of Little Rock, Arkansas, who presides over the MDL Prempro litigation.

As we previously reported here, more than 8,000 lawsuits have been filed against Pfizer’s Wyeth unit by former users of the company’s hormone-replacement pills, which are used to treatment menopause symptoms including hot flashes, night sweats, and mood swings. Plaintiffs have alleged that the drug causes breast cancer and other injuries, and that the drugmaker failed to properly warn of these risks.

Judge Wilson refused to consolidate the Prempro cases into a class action based on his conclusion that the suits did not have enough in common to justify proceeding as a group. The outcomes of these cases seem to confirm his conclusion. Jury verdicts in these cases have varied widely, with some juries holding that the drug played no part in Plaintiffs’ development of breast cancer, and others rendering verdicts for tens of millions of dollars. As reported by Businessweek, Pfizer’s Wyeth unit has lost seven of the 12 Prempro cases decided by juries since litigation began in 2006, although the drugmaker did succeed in having some of those verdicts thrown out at the post-trial stage or in having awards reduced.

According to the article, Judge Wilson, who presides over his courtroom from a rocking chair, relaxes during his time away from the bench by corralling his prize Tennessee walking mules on his 15-acre farm. A sign on the door of his barn reads: “The more I see of people, the more I prefer mules.” Businessweek reports that at one 2005 hearing, Judge Wilson asked the lawyers what year it was that Hank Williams died. When they couldn’t answer, he launched into a 210-word explanation, on the record, of the circumstances of the singer’s death and his blue 1952 Cadillac.

Judge Wilson, named to the bench by President Clinton in 1993, cemented his spot as Above the Law‘s “Judge of the Day” with a blunt letter he once wrote to a plaintiff’s counsel in 2008. See a copy of his letter here.

As Judge Wilson works his way through some of the thousands of Prempro lawsuits seeking damages from Pfizer, at least he’s sure to keep things interesting.

Judge-Made Law: Florida’s "Dangerous Instrumentality" Doctrine

The dangerous instrumentality doctrine is nothing new in products law. What is different about Florida’s doctrine, however, is that “it is the only state to have adopted this rule by judicial decree,” as noted by the recent case Salsbury v. Kapka, 41 So. 3d 1103 (Fla. Ct. App. 2010). Other states have held that the issue is one for the jury to decide.

In Salsbury, the Court considered whether an all-terrain vehicle, or ATV, is a “dangerous instrumentality” under Florida’s tort law, a designation that would impose strict liability upon the owner of the ATV who entrusts it to a second person who in turn negligently operates it and causes injury to a third party.
Cars, as the decision pointed out, are the gold standard for dangerous instrumentality, because they are dangerous to others when used for their “designated purpose.” In a prior decision, Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984), the Florida Supreme Court designated golf carts as dangerous instrumentalities based on three factors that liken them to cars: (1) they fit the statutory definition of “motor vehicle,” (2) they are heavily regulated by statute, and (3) there is extensive evidence as to the causes and consequences of golf cart accidents.
But what of ATVs? The Court of Appeals remanded the case, because there was not enough expert testimony or evidence in the record about the nature and extent of ATV injuries. The Court pointed out the peculiar nature of Florida’s judge-made law: that to decide an issue of law, the court actually needed factual testimony:
As such, the trial court should, in theory, have been able to resolve Kapka’s motion without any specific proffer of evidence. Nevertheles, we believe Meister compels a contrary result. Evidence of a vehicle’s danger in its normal operation is essential before a court may extend the dangerous instrumentality doctrine, and the trial court’s failure to produce an evidentiary record was error.

There is a key difference between cars, and “vehicles” like ATVs and golf carts: who drives them. Laws about whether or not a driver’s license is required to operate a golf cart or an ATV vary widely (or sometimes go unenforced, in my experience), which means that minors and others who probably shouldn’t be driving a grocery cart can use them with impunity.
If Child is driving, it is likely that Parent is the owner, opening Parent up to strict liability if and when Child hurts Third Party. This is the danger from a legal standpoint, of course. And under the three-part test outlined by Florida courts, the list of “dangerous instrumentalities” has the potential to grow exponentially. It’s a good thing that it rarely snows in the Sunshine State.