TV Review: NBC’s "Harry’s Law" with Kathy Bates

Television showrunner David E. Kelley (“Ally McBeal,” “The Practice,” “Boston Legal”) has a new legal drama, “Harry’s Law,” starring Kathy Bates, which premieres tonight on NBC at 10/9 Central. We here at Abnormal Use were able to pull some strings with our many Hollywood connections and score an advance screener of the series’ first two episodes, and we liked what we saw (especially since it takes many, many cues from Kelley’s recently departed “Boston Legal”).

Before reviewing the pilot episode, we must disclose that we have always been fans of Kelley’s oeuvre. Even when we were slumbering through psychology and biochemistry classes without even the slightest thought of attending law school, we rather enjoyed watching Ally McBeal dealing with the stress of working in a law firm with her childhood boyfriend. Once we made that fateful and immutable decision to attend law school, Denny Crane and Alan Shore in “Boston Legal” had us looking forward to those days when we too would be sharing cigars on the office balcony after a long day of legal shenanigans. Given our love for a good David E. Kelley legal drama, we were thrilled to obtain an advance screener of “Harry’s Law.

So much for objectivity.

Written by Kelley and directed by Bill D’Elia, the pilot was a fun bit of television. With only minor, minor spoilers, the basic premise is as follows: Harriet Korn, a highly successful attorney, is fired from her plush Cincinnati mega-firm after expressing her disgust and boredom with the everyday monotony of her patent work. (Possibly Kelley’s most realistic premise to date). Following a series of miraculous events, Korn establishes “Harriet’s Law and Fine Shoes” in an area of town not likely to be highlighted by the chamber of commerce. (Harriet’s firm also peddles, at the insistence of Korn’s legal assistant, Jenna Backstrom (Brittany Snow), a fine assortment of Prada and Jimmy Choo’s footwear left over from the previous tenant, who apparently abandoned a sizable inventory.). Along with Backstrom, Korn hires Adam Branch (Nathan Corddry), a young, over-the-top patent lawyer, who joins the firm after inadvertently striking Korn with his Mercedes, and Malcolm Davies (Aml Ameen), an aspiring college-student who literally falls upon Korn during a suicide leap following his third drug charge. “Harriet’s Law and Fine Shoes” begins its sojourn into criminal defense with Korn representing Davies on his drug charge and Branch representing Damien Winslow (Johnny Ray Gill) after Winslow’s “protective services” result in a bullet in the leg of an alleged armed robber.

As attorneys, it is rather easy to identify all the inaccuracies of “Harry’s Law.” For starters, the sale of expensive footwear out of a law practice must surely violate ethical principle (although we can’t recall any specific examples from the MPRE). However, if such a thing is ethically permissible, Kelley may have solved an issue for firms seeking to escape the economic conundrum. Aside from the ethical pickle of shoe sales, Kelley paints an idealized picture of the practice of law – not as it actually exists. Legal rules are often cast aside in order to turn cases into a platform for social issues rather than a means to resolve a suit. During the course of the Davies’ trial, Korn opines on the benefits of legalizing drugs. Korn offers her opinion, not during the scope of an objection, but rather as an open monologue in the midst of the prosecutor’s (Paul McCrane) cross-examination of her client. Following this soliloquy, she then argues for jury nullification during her closing statement. In so doing, she urges the members of the jury to offer her just one not-guilty vote despite her lack of any legal defense. Korn claims there is “no justice in the law,” but we here at Abnormal Use believe there is more to law than winning and losing.

That said, Kelley succeeds in filling the void left by the absence of “Boston Legal” from the airwaves. “Harry’s Law” provides a new cast of characters carrying-on in the footsteps of Legal‘s Shore and Crane. As Korn, Bates delivers her best performance since the car-smashing, “I’m older and have more insurance” days of 1991′s Fried Green Tomatoes. (By the way, wouldn’t you have hated to be the adjuster who informed her that she wasn’t covered due to her policy’s intentional acts exclusion?). As Branch, Corddry dazzles, reminiscent of the infamous Alan Shore, using an arraignment hearing as a soapbox to highlight the neglect of inner-city populations. (Just wait until he stands up to the egotistical, television ad plaintiff’s lawyer in next week’s “Heat of Passion” episode).

Kelley’s shows work because of his ability to create quirky, non-stereotypical lawyers to highlight contemporary issues using litigation as an effective backdrop. Though lawyers may recoil at some of the perceived inaccuracies, non-lawyers will find that it makes for great television. “Harry’s Law” tiptoes that fine line between what the law is (at least according to Kelley) and what the law should be (again, according to Kelley). With such an approach, it’s easy to draw viewers into the alleged war between social and legal justice (although favorable depictions of large corporate defendants are unlikely given his track record).

“Harry’s Law” does not preach that the practice is nothing but a cutthroat all-or-nothing business at the expense of social justice, any more than “Grey’s Anatomy” purports that every nurse or surgical resident beds another while patients await in the next room. (Seriously, that much intra-hospital action can’t seriously be going on can it?). While it is not a realistic portrayal of the courtroom, “Harry’s Law” is a witty, thought-provoking indulgence into the realm of social justice.

Martin Luther King Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the legacy and leadership of Dr. Martin Luther King, Jr. In honor of the occasion, we direct you to this story from Sean Muserallo of WYFF entitled “The Story Behind Greenville’s MLK Breakfast.” For a listing of events in Upstate South Carolina, please see here and here. Today, our offices are closed.

(By the way, the comic book cover depicted above is that of Golden Legacy #13, published in 1972. The Fitzgerald Publishing Company, which produced that comic book series dedicated to African American history, has posted the entire contents of this issue on its website here.).

Friday Links

  • Above you’ll find the cover of Action Comics #263, published way, way back in 1960. In it, Superman, the defendant in a criminal case, is sentenced by a jury of Bizarros. The punishment is, apparently, that Superman will himself be turned into a Bizarro, which is surely cruel and unusual. (No word on whether the Bizarro constitution has an Eighth Amendment prohibiting such.). Again, we think that Supes has a “jury of his peers” objection, just as Batman did when he faced a juryful of Jokers or when a human was sentenced to death by an insect jury. The question: Why are all these defendants pro se? You’d think the Justice League would have some sort of insurance policy providing counsel in these cases. (For the record, we previously explored the antics of the Bizarros here.).

  • Oh, and if you’re not reading the Law and the Multiverse blog, you’re missing out big time. The site is dedicated to one question: How would our laws apply to comic book superheros? This wonderfully clever site is written by two relatively new lawyers, James Daily and Ryan Davidson. Why do they do it? See their FAQ file here. Though new (it just began in November), the site is already quite popular, having been profiled here and here in The New York Times and here at The Volokh Conspiracy. We’re already fans.
  • We thank Alan H. Crede of the Boston Personal Injury Lawyer Blog for his recent kinds words about our site and the recent ABA Blawg awards. We tried to email him directly to share our appreciation, but we couldn’t find a direct email address on his site.
  • By the way, if you look in our right hand column, you’ll see a bar entitled “South Carolina Law Blogs.” We just updated that list to include a number of new blogs in our state, as well as a handful that have been around a while that we somehow overlooked. Take a gander.

Florida Federal Court Rules Manufacturers Have No Duty to Provide Bilingual Warnings

The United States has always been known as a “melting pot,” a place where people from all over the world come and settle and bring their food, culture, and language with them. What does this “melting pot” designation, however, mean for manufacturers, especially in a country where there is no official language? What duties do they have to people who do not speak or read English.

This was precisely the issue before the Southern District of Florida in the case of Farias v. Mr. Heater, Inc., et al., No. 09-CIV-23789, 2010 WL 4814660 (S.D. Fla. Nov. 19, 2010). On February 5, 2009, Plaintiff Lilybet Farias (“Plaintiff”), a naturalized American citizen who was Cuban-born, purchased two heaters from a Home Depot in Miami, Florida to heat her home during a cold snap. One heater was manufactured by Defendant Mr. Heater, Inc., and the other by Defendant Enerco Group, Inc. Plaintiff spoke little English and could read almost no English. Other than understanding the word “caution,” which was printed throughout the user’s manual, she could not understand any of the words on the heater’s packaging or read the users’ manuals.

Plaintiff took the two heaters home and hooked them up to propane tanks. She put one in her living room, two or three feet away from her sofa, and one in her bedroom. After watching television in her living room, she turned that heater off, turned on the heater in her bedroom and went to sleep. Later, she woke up when smoke from a fire in her living room woke her up. Her home suffered significant fire and smoke damage as a result.

Plaintiff filed suit against the two manufacturers of the heaters, as well as Home Depot. She sued the defendants on theories of negligent failure to warn and strict liability. The defendants filed for summary judgment. As the Southern District of Florida outlined:

A manufacturer must take reasonable precautions to avoid reasonably foreseeable injuries to the users of its products and thereby assumes a duty to convey to the users of that product a fair and adequate warning of the dangerous potentialities of the products so that the user, by the exercise of reasonable care, will have a fair and adequate notice of the possible consequences of the product’s use or misuse.

Nevertheless, Florida cases make clear that a manufacturer will not be held liable for damages in products liability cases, even if its warning is inaccurate, if the person did not read the warning or label, since in that case proximate cause cannot be established. As a result, the Court framed two issues before it: First, whether a manufacturer has a duty to provide warnings in Spanish, and second, whether a Spanish-speaking plaintiff can establish proximate cause when she cannot read English warnings provided by a manufacturer.

The Court held that, as a matter of law, the manufacturers of the heaters had no duty to provide bilingual warnings in this case. The Court distinguished the facts of Farias from a previous case, Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992) in which the court imposed such a duty, because in Farias, the heaters at issue in the case were not marketed specifically to a Spanish-speaking population. The Court also noted that there was no statute imposing such a duty on manufacturers.

The Court also held that “any purchaser of the Heaters manufactured by Mr. Heater and Enerco who read the instructions would have understood the clear an unambiguous warnings not to sue the Heaters indoors in an enclosed space.” Relevant to the Court’s decision was the fact that Plaintiff had failed to further investigate the proper use of the heaters, despite her understanding of the word “caution.” She also understood the words “danger,” “warning,” and “stop.” In the words of the Court, “it would be improper to find such clear warnings inadequate because Plaintiff here was not well-versed in English and did not investigate the danger to which she had been alerted in the use of the Heaters.” In fact, the Court found that Plaintiff’s failure to seek out additional explanation was “willful ignorance . . . certainly akin — if not precisely the same — as refusing to read the warnings at all.” The Court granted summary judgment to the defendants on the cause of action for failure to warn.

Finally, the Court also held that the defendants were entitled to summary judgment on the strict liability cause of action because Plaintiff could not establish that either heater had been defectively designed.

The issue of bilingual warnings on consumer products will be an issue to watch in the future. This decision is an important one, because if manufacturers are required in the future to provide bilingual instructions and warnings, what languages are included? Spanish might be the obvious first step, but where would the line be drawn? If warnings are posted in Spanish and French, for instance, but the injured party is Korean, will the manufacturer be found negligent in a failure to warn case? Courts and legislatures need to be wary of imposing overly burdensome requirements on manufacturers in this area.

New Jersey Sodium Lawsuit Dismissal Affirmed Yesterday

We’ve blogged in the past about the necessity of an actual injury to maintain a lawsuit, and just yesterday, the New Jersey Appellate Division again reminded us that there must be some damage sustained before the law will permit recovery. In DeBenedetto v. Denny’s, Inc., No. A-4135-09T1, 2011 WL 67258 (N.J. App. Div. Jan. 11, 2011) [PDF], the Plaintiff sued Denny’s under the state Consumer Fraud Act [CFA], alleging that the restaurant chain failed to disclose the high sodium content in his typical breakfast of ham, bacon, sausage, and hash browns. Although the Plaintiff framed the action under the CFA (ostensibly because neither he nor his purported class had any injury), the court affirmed a dismissal and stated that crux of the claim was products liability, and, therefore, there must be some injury alleged.

Avid readers our site might predict that we will spend the next few paragraphs poking fun at the Plaintiff’s attorney’s inability to properly frame the cause of action or to understand what the word “damage” really means. But today we take a different tack and offer some litigation planning tips to our friends in the plaintiff’s bar. It’s no secret that excess sodium in the diet is bad for you [PDF]. But like a lot of other ingredients, sodium has some benefits, like extending the shelf-life of food. However, sodium may head the way of the trans fat, as there is an increasing awareness and governmental pressure to force reduction of sodium in food.

DeBenedetto may merely have been a test case to see how the courts would react to such claims. Perhaps the courts would not have been so quick to dismiss the case if the evils of excess sodium had gotten some more media attention over the past ten years. Sodium can cause problems with blood pressure and kidney function, but because causation of high blood pressure is multifactorial, causation may be difficult to prove, even given an injury. Maybe a few years from now, in a different state, a consumer fraud action might be more tolerable. Or maybe there is some political aspiration. Perhaps Mr. Wolf, the Plaintiff’s attorney, sees himself as a future sodium czar, helping to craft some FDA regulations. There’s nothing like being in front of an issue to add credibility to a position.

Nevertheless, it would not surprise me if excess dietary sodium quickly became a mainline issue, and whether it means a future tort suit or some other kind of remuneration, I am hard-pressed to believe that this New Jersey suit doesn’t fit in to some other larger litigation plan.

Abnormal Interviews: Jeff Richardson of iPhone J.D.

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 Jeff Richardson, author of the superb legal tech blog, iPhone J.D., and a partner at the firm of Adams & Reese, L.L.P. in New Orleans, Louisiana. The interview, which mostly concerns iPhones and legal uses of smartphone technology, is as follows:

1. Generally, how has the practice of law changed with the advent of smartphones?

When the BlackBerry and similar devices started to become popular almost ten years ago, the practice of law began to change dramatically. Tech savvy lawyers could impress clients by always being available to receive and respond to an e-mail. This then led to clients expecting that they could contact their lawyers 24/7. Around the time that the Palm Treo 650 started to become popular, attorneys were able to do more than just read and respond to e-mail; they also had tools to find information on the Internet, edit documents, et cetera. We saw the possibility of being a mobile attorney without having to carry around a laptop. When the iPhone debuted in 2007, it forever changed what consumers expected from a smartphone interface, but it didn’t have much of an effect on the practice of law at first. But, in 2008, when the iPhone 3G came out, and the iPhone was suddenly able to work with Microsoft Exchange, the e-mail used by many lawyers and law firms, and at the same time the App Store opened, the iPhone started to become an extremely powerful device for lawyers. The tools that made mobile lawyering a possibility on the Treo 650 started to become available for the iPhone, but this time, the software was much more powerful and polished. We are now at a stage where clients are very used to expecting 24/7/365 availability for their lawyers, and with the iPhone, lawyers really can do quite a bit to meet those needs even when they don’t have a laptop computer nearby.

2. What ethical issues surround the use of a smartphone, and of them, what is the most overlooked? Are there any that are iPhone specific?

Preserving confidentiality is always a concern for lawyers, but not only is this not unique to the iPhone, it isn’t even unique to technology. If you leave a legal pad — or even worse, a briefcase — in an airport, restaurant, courtroom, et cetera, you risk possible exposure of lots of confidential attorney-client information and attorney work product. A smartphone can potentially hold much more confidential information than a briefcase, but at the same time, there are tools to help keep data private (such as password locks) and to locate a missing iPhone or remotely erase the iPhone if it is lost (such as the fantastic Find My iPhone app that Apple recently made free for the owners of all new iPhones).

Another concern that I see is that e-mail on a smartphone tends to be much more casual than e-mail on a computer, which is more casual than a letter drafted on the computer. And yet, the consequences of the written word can be the same, regardless of whether it is in the form of a text or an iPhone e-mail or a formal letter. Clients need to be aware of the potential for liability that results from sending a message without really thinking about it, but attorneys need to follow that advice, as well. Moreover, risks such as accidentally using REPLY ALL or FORWARD exist on the computer and the smartphone, but can be easier to make on a smartphone when people are trying to dash off messages in a matter of seconds.

3. Not too long ago, there were some concerns expressed on some blogs about the security of the iPhone and its appropriateness in legal practice. Have those concerns been put to rest?

You still see a few people issuing dire warnings about security on smartphones such as the iPhone, but often, these people are security professionals looking to sell their services. In the real world, I am not aware of any instance in which an attorney’s iPhone or other smartphone has been obtained by a hacker who knows how to use sophisticated tools to access data notwithstanding the use of passwords, et cetera. I know that these tools are out there, and I know that many police forces are learning how to use the tools (with court approval) to obtain information from a suspect’s iPhone or other smartphone. But the fact that a trained professional can hack into an iPhone or a laptop computer doesn’t lead me to believe that attorneys shouldn’t use an iPhone or a laptop computer. Instead, I urge common sense. If you use your iPhone in your law practice, activate the passcode lock feature so that a stranger cannot simply pick up your iPhone and start to read your e-mail, and be aware that there is some information that is so confidential that it should receive extra protection.

4. What are the three most essential apps for the practicing attorney?

In the spring of 2010, I did a “60 Apps in 60 Minutes” presentation at ABA TECHSHOW 2010 that sought to answer that question. You can still see that list here; I’m working on a new list for ABA TECHSHOW 2011 in April. But if I had to pick just three, I would probably pick Dragon Dictation (so that an attorney can quickly dictate an e-mail), DataViz Documents to Go (so that an attorney can edit MS Word documents and more easily view Word documents) and LogMeIn Ignition (so that an attorney can access his or her desktop computer even when out of the office). Having said that, I really hate to pick just three because there are so many great apps with so many new great apps coming out every day. After a hard day of work, sometimes I consider it “essential” to play a quick game of Angry Birds.

5. If you could will into being one legal app that does not yet exist, what would be its function?

The best feature of the iPhone for attorneys is having information at your fingertips. The information that I want to access is usually available somewhere, but sometimes, can be a little difficult to access. My dream app would be able to sort through information from all of my data sources — my document management system, my e-mail, the documents on my work and home computers, court dockets for my cases, such as the PACER system for federal courts, my notes, et cetera — and allow me to find information from any of those sources with the speed of a Google search.

BONUS QUESTION: What do you think is the best depiction in popular culture of legal technology?

For lawyers and non-lawyers, I think that the technology goal is the same; we want powerful technology without the human interface barriers. As a child, watching Luke Skywalker, Michael Knight, and Dave carry on conversations with C-3PO, KITT, and HAL 9000 made me long for the day when I would be able to access vast amounts of information just by asking questions to a computer or robot. Speech is making great advances, not only on the computer, but also in cars and on small devices like the iPhone, but the reality is that whether I am walking down the street or trying to work in my office, I don’t want to be surrounded by lots of people talking to their computers, their watches, the water cooler, et cetera But the new touch interfaces — which amazed all of us when we saw Tom Cruise in Minority Report, and which we are now seeing in real life on the iPhone and iPad and with the Xbox Kinnect — seem to have the advantage of removing barriers without the noise. I am excited to see these technologies continue to improve in the future.

BIOGRAPHY: Jeff Richardson is the publisher of iPhone J.D., the only website devoted to the use of iPhones by attorneys. iPhone J.D. was voted by readers of the ABA Journal as the best legal technology blawg in 2010. Mr. Richardson is a New Orleans native and a partner in the New Orleans office of Adams and Reese L.L.P., where his practice primarily involves representing defendants in class action and complex litigation, appellate litigation, products liability litigation, constitutional litigation and legal ethics. He has served as court-appointed liaison counsel for defendants in numerous complex cases. Mr. Richardson graduated from Emory University in 1991, summa cum laude, and Georgetown University Law Center in 1994, magna cum laude.

South Carolina Snowpocalypse

Today, the snowpocalypose has come to South Carolina. Most news outlets are reporting that the Governor has closed all state offices in all counties today. At least some federal courts in South Carolina will be closed or opening in a delayed fashion. As of this morning, I-85, the interstate that passes through our fair city of Greenville, is still being cleared. If you’re in the Southeastern United States, we’d encourage you to investigate such closings before venturing out into the snow and ice. It might be best simply to hide from the cold with a cup of coffee.

Likewise, we here at Abnormal Use will not be going into the office today. Our friends at the Drug and Device Law blog in Philadelphia might scoff at this South Carolina snowpocalypse as merely a couple of flakes, but we’re not used to this type of weather down here. Neither is anyone else in the state. Thankfully, we spent much of yesterday preparing for the inclement weather.

We trust and hope things will be back to normal tomorrow.

(By the way, depicted above is the cover of Strange Adventures #79, published by DC Comics way, way back in 1957. We’ve been waiting for the perfect opportunity to use it.).

Friday Links

  • The image above is the cover of House of Mystery #149, published way, way back in 1965, which features a story entitled “I Was Tried By An Insect Jury.” Note that the criminal defendant, a human apparently representing himself (most certainly a bad idea in insect court, no doubt), has just been sentenced to death. Surely there was a “jury of peers” objection? (Kudos to Ryan S. of The Signal Watch for alerting us to this comic cover).

  • Jonathan Adler at The Volokh Conspiracy shares with us the books he’s planning to read in 2011. It’s mostly non-fiction, but hey, he’s a law professor, so that’s okay. We’d suggest he add George R.R. Martin’s A Game of Thrones to the list, as HBO will be premiering an original series based on that work this coming spring. That, or World War Z.
  • Best judicial opinion ever? “The gist of the copyright dispute between the parties is whether Plaintiff’s virtual horses infringe on copyrights associated with Defendant’s virtual bunnies.” Amaretto Ranch Breedables v. Ozimals, Inc., 2010 WL 5387774 (N.D. Cal. Dec. 21, 2010). Yes, you guessed it; it’s a case involving the virtual world of Second Life. (Hat Tip: Eric Goldman of the Technology and Marketing Law Blog).
  • We’re big fans of Bob Dylan’s work (“My Back Pages” is sublime), but we must confess to enjoying this recent news which, to be honest, might have resulted in some of the most interesting litigation imaginable. Here’s the story from Stereogum: “. . . a guy with backstage credentials for a nearby Bob Dylan concert walked into Antonio’s, pizza place close to the venue, and ordered $3,900 worth of pizza. The place closed at 2 a.m. but he promised them a big tip, so they stayed until 5:30 in the jingle-jangle morning making the pizzas. But the guy never returned to pick up his order or pay for it. And it turned out he had no affiliation with Bob Dylan. The guy got away with the prank, and most of the pizza ended up in the trash after the pizza place called the police. But the paper says he later felt bad and and turned himself in, got a lawyer, and has settled with the pizza place. Since it’s not a criminal matter and he’s agreed to pay, they haven’t released his name.” Alas; the Bob Dylan Pizza Litigation That Never Came To Be. That reads like an apparent authority exam question, no? (Hat Tip: Stereogum via the Amherst Bulletin).
  • Did you know that this week marks the 32nd anniversary of the murder trial of Sex Pistols bassist Sid Vicious? We didn’t either, until we were alerted by this piece from The Post Punk Progressive Pop Party blog which is not, by the way, a law blog. Apparently, Vicious did not live long enough to see a verdict, as he died just a month after the trial began.
  • “Why should not the hundreds of millions of Americans in 2011 have the opportunity of witnessing representations of the principals events of 1911?” – G.F. Blaisdell of Brooklyn, New York, in this letter to the editor of The New York Times, published on July 19, 1911. Mr. Blaisdell was writing in response to “Records for Posterity,” an editorial published by The Times on July 13, 1911. Both the editorial and the letter were commenting upon efforts at that time to preserve video and audio records of the day for future generations.

First-Ever Wrongful Death Settlement Involving Chewing Tobacco Reached

The Associated Press is reporting that Altria Group, Inc., the maker of smokeless tobacco products Skoal and Copenhagen, reached an agreement with a plaintiff in December that is believed to be the first-ever wrongful death settlement involving chewing tobacco. Estate of Bobby Hill v. U.S. Smokeless Tobacco Co., FST-CV-05-4003788 (Connecticut Superior Court). The Big Tobacco manufacturer paid $5 million the family of the North Carolina man, who died of mouth cancer at age 42.

Attorney Antonio Ponvert III, who reportedly represented the decedent’s family, had some powerful ammunition in the form of “incredibly damning documents” to use in his battle against the tobacco maker. According to him, his case was bolstered by some previously undisclosed letters from the 1980s that the company sent to minors, thanking them for their business and sending them free samples. In once instance, he said, the company even sent a child a can opener to aid him in opening the chewing tobacco containers.

While this sort of information and the thought of a multi-million dollar pre-suit settlement may convince many plaintiffs’ attorneys to sign up some clients, an Altria spokesman has reportedly issued a statement to assuage such desires. According to the spokesman, “[the company has] no intention of settling cases such as this in the future.” In fact, there were several circumstances at issue here that made this particular claim unique.

First, Altria acquired the named defendant, U.S. Smokeless Tobacco Co., last year, and reportedly was perhaps honoring an agreement that that company had made with the plaintiff prior to the acquisition. Second, it also is possible that Altria simply wanted to resolve all legal issues remaining from its acquisition. Third, the plaintiff was not a drinker or user of cigarettes, which are risk factors tobacco companies often point out to as possibly having caused the cancer. Finally, the plaintiff was a relatively young, married father of two who died in a particularly painful and gruesome manner. The plaintiff had undergone multiple surgeries to remove his tongue.

This is certainly an interesting first-of-its-kind. It remains to be seen whether this is truly a unique event, or simply the first of a new strategy for Big Tobacco product liability matters.

Allegedly Ambiguous Warning Fails to Insulate Manufacturer from Design Defect Claims

In a recent indemnity action brought by a residential care facility for the severely developmentally disabled against a plumbing company and a mixing valve manufacturer, the U.S. District Court for the Northern District of California granted in part and denied in part a manufacturer’s motion for summary judgment on the plaintiff’s manufacturing and design defect claims. Res-Care, Inc. v. Roto-Rooter Servs. Co., — F. Supp.2d —, No. C-09-03856, 2010 WL 4367219 (N.D. Cal. Oct. 28, 2010). The plaintiff commenced the action after settling a lawsuit for $8.5 million with the conservator of one of its residents who was badly scalded during a shower at the plaintiff’s facility.

Defendant, Leonard Valve Company (“Leonard”), manufactured a Leonard Valve Model 110 tempering valve (“the valve”) that was attached to the water heater at the plaintiff’s facility. A warning label placed in the product catalog and affixed to the valve itself indicated that the valve was not to be used for “direct showering and bathing applications,” should not be considered an “anti-scald device,” and should be inspected every six to twelve months. Leonard designed the valve in the 1950′s, and it had never been certified to meet any industry standards. The plaintiff was unsure of the age of the valve, but estimated that it had been installed in 1995. At any rate, the valve was visibly present and attached to the showering line when a plumber replaced the hot water heater at the plaintiff’s facility in 2004, approximately one week prior to the scalding. Following the accident, the valve was found to be corroded and likely inoperable for at least two months.

While the Court began its opinion by ruling in favor of Leonard on the plaintiff’s manufacturing defect claim citing a lack of evidence that the valve was not installed as an anti-scald device, Leonard’s fortunes quickly deteriorated. Despite Leonard’s argument that its warnings reduced the likelihood of injury and the fact that the valve had not been inspected for nearly ten years (contrary to the valve’s specific instructions to do so every six to twelve months), the Court held there to be a triable issue of fact as to the plaintiff’s design defect claim finding little evidence to show that the benefits of the Model 110 valve design outweighed the risk of danger.

Further, the Court held that there was at least a triable issue of fact as to whether the warning attached to the valve was ambiguous. The plaintiff argued that the phrase “direct showering or bathing application” was ambiguous by presenting evidence that the experienced plumber was unable to decipher the meaning of the phrase. While it could be argued that the definition of “bath” could encompass anything from a simple handwashing to a complex soak in the tub, it is interesting that the Court and the experienced plumber could assign an ambiguous meaning to the phrase “direct showering.” Apparently, the Court was aware of a line of cases assigning ambiguous meanings to unambiguous terms which the counsel for Leonard was not privy.

Had Leonard been aware of the Court’s opinion on the adequacy of its warning label, perhaps it would not have insisted on further relying upon it in defense of its argument for summary judgment on the plaintiff’s negligent design claim. Unfortunately for Leonard, the Court, in denying Leonard’s motion, held that warnings are not relevant in determining whether a manufacturer breached a duty to design a safe product and relied instead on the evidence that Leonard never considered an alternative design and failed to test to industry standards.

Lost in this discussion is the fact that the plaintiff not only failed to maintain the valve, contrary to Leonard’s instructions, but also knew at least five days prior to the incident that the water temperature was wildly fluctuating and still elected to place a severely developmentally disabled resident into the shower. This case demonstrates that despite instructions on the proper use of a product that may appear clear and unambiguous (at least to the average products liability legal blog contributor), a manufacturer can never be entirely certain that its product is not going to be misused by even the most “sophisticated” consumer.