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 law professor Alberto Bernabe of The John Marshall Law School in Chicago. The interview is as follows:
1. What do you think is the most significant new development in products liability litigation of the last year?
I think that preemption will continue to dominate the discussion for a while. Last year’s Supreme Court opinion in Wyeth v Levine was the most important decision of the year and the Court has two very important preemption cases before it right now. The first one is Bruesewitz v. Wyeth, in which the Court will determine whether the National Childhood Vaccine Injury Act preempts vaccine design defect claims. The second one is Williamson v. Mazda Motor Corp., in which the Court will consider whether federal regulations preempt a claim in state court for damages caused by a car manufacturer’s failure to install a three point seat belt. This case is particularly interesting because it will allow the Court to reconsider its decision in Geier v Honda (decided in 2000) in which the Court found that a state claim was impliedly preempted by the federal regulations that gave automobile manufacturers the choice to use either seat belts or air bags. It will be very interesting to see if, in the wake of Wyeth v. Levine, the Court changes its view. It will also be interesting to see how it contributes to the legacy of retiring Justice Stevens, who wrote the dissenting opinion in Geier and the majority in Levine.
2. What rule or concept in modern products liability jurisprudence do you believe is the most outdated? How would you change it, and why?
There are a few good candidates. One answer is contributory negligence as a complete defense, but this is available in only a few jurisdictions. A more interesting – and perhaps controversial – answer would be that we need to take a careful look at the concept of the so-called “learned intermediary doctrine” in prescription drug cases. I think the policy behind the doctrine made sense when it was developed originally, but it is not frivolous to argue that both the practice of medicine and the marketing of prescription drugs have changed so substantially that we need to re-think the application of the doctrine.
3. Generally, how would you characterize the media coverage of products liability lawsuits and issues?
Inconsistent or incomplete. The typical media coverage tends to focus on generalities rather than the details and it is the details that matter most. Also, in many instances the media is interested in the extreme cases to exploit the “shock value” of the stories. My impression is that the coverage of those types of stories is almost always incomplete. There is little attention given to the argument that litigation can have a positive role to play that often results in more safety for consumers.
4. You also teach ethics. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?
I am glad to hear you refer to the use of the Internet “to communicate” because my impression is that a lot of people still think that lawyering over the Internet only relates to “advertising,” which is a mistake. The fact of the matter is that there are a lot more issues that lawyers need to be aware of when it comes to the Internet. Participating in social media, for example, can lead to problems related to the inadvertent establishment of an attorney-client relationship, to the disclosure of confidential information and to duties to prospective clients, all of which can also result in conflicts of interests, disqualification and discipline. State bars will have to find better ways to inform attorneys of the risks they take when using modern technology and of the skills they need to do so safely. Earlier this year, the ABA took a good first step in this direction by issuing a new Ethics Opinion (No. 10-457) that summarizes the state of the law as it relates to the use of websites, but more needs to be done. In particular, state bars need to address the issues that arise when lawyers send metadata within electronic files. A number of jurisdictions have addressed the question, but the opinions are not in agreement. As more and more lawyers exchange documents by e-mail and other electronic means this is going to become a major issue. Many lawyers do not know the kinds of “hidden information” they are sending out in their electronic documents that someone with computer skills can access relatively easily.
5. You maintain a law blog. What is the biggest challenge for you in that enterprise, and how do you confront that challenge?
The biggest challenge is finding the time to do it well. I run two separate blogs – one on Torts and one on Professional Responsibility. It takes a lot of time because I am almost constantly checking other sources for the latest news and information. But it is very rewarding when I get encouraging messages from students, lawyers or other bloggers and when I see other bloggers mentioning my stuff in their blogs.
BONUS QUESTION: What do you think is the most interesting depiction of a products liability lawsuit in popular culture, and why?
In contrast to what I said about media coverage, which often tends to favor defendants, my impression is that movies with product liability themes tend to go the other way. Many portray defendants as villains who don’t care about the risks they create. Two movies come to mind quickly: Class Action (with Gene Hackman) and Thank You For Smoking. Class Action, which is very loosely based on the Ford Pinto case, provides a lot of material for discussion both in terms of products liability and professional ethics. It is also one of the few movies I have seen that illustrates that the most important part of litigation is the process of discovery rather than the trial itself. Thank You for Smoking is a very sarcastic look at the tobacco industry.
BIOGRAPHY: Alberto Bernabe is a Professor of Law at The John Marshall Law School where he teaches Torts and Professional Responsibility. After graduating from law school, Professor Bernabe clerked at the Supreme Court of Puerto Rico and later entered private practice, specializing in personal injury, mass disaster litigation, and media law. Before joining The John Marshall Law School, Professor Bernabe was a teaching fellow at Temple University, where he collaborated in teaching Torts, Products Liability and Legal Ethics. He has also taught Torts, Products Liability, Professional Responsibility and Media Law as a visiting professor at the University of Puerto Rico Law School.