No Duty To Warn Of The Hazards of Cleaning Hazard-Protecting Equipment

This past December, the Court of Appeals of Washington reversed a trial court’s denial of several respirator manufacturers’ motion for summary judgment on plaintiff’s claim that they failed to warn him of the dangers of asbestos exposure while cleaning respirators designed to protect against asbestos. Macias v. Mine Safety Appliances Co., 244 P.3d 978 (Wash. Ct. App. 2010).
Mine Safety Appliances Company, American Optical Corporation, and North Safety Products USA (collectively “respirator manufacturers”) manufactured respirators that could protect against a variety of contaminants dependent upon the contaminant-specific filter cartridge selected by the user. The plaintiff worked as a tool keeper at a Seattle shipyard, and as part of his duties, he was responsible for cleaning respirators after they were returned by shipyard workers at the end of their shifts. After working in the shipyard for over twenty-five years and handling hundreds of dirty respirators on a daily basis, the plaintiff was diagnosed with mesothelioma and commenced this action against the respirator manufacturers.

The plaintiff alleged that the manufacturers were negligent and strictly liable for failing to warn him of the dangers of asbestos exposure. In response, the respirator manufacturers argued that they had no duty to warn of the dangers associated with asbestos in another company’s product. In support of their argument, the manufacturers cited the Washington Supreme Court’s decision in Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008), holding that the duty to warn is “limited to those in the chain of distribution of the hazardous product.”

The Court agreed with the respirator manufacturers and held that they did not have a duty to warn, neither under a negligence or strict liability theory, because the manufacturers did not manufacture, sell, or supply the asbestos and did not control the type of contaminants used at the shipyard. While the plaintiff argued that the court should consider the purpose of the product in its duty to warn analysis, the Court rejected the notion that a product manufacturer should have a duty to warn of the dangers of a hazardous substance when its product is designed for the purpose of protecting against those very hazards.

Even though the manufacturers should have expected, as pointed out in the concurring opinion, that those who perform the necessary cleaning of the respirators would be exposed to the hazardous substances which had been absorbed, the plaintiff should have also expected that he would have been exposed to asbestos as he was cleaning the respirators of the substance against which it was designed to protect. Manufacturers should not be expected to warn against every conceivable hazard created by others’ products especially when the purpose of the manufactured product is to protect against those hazards.

While we here at Abnormal Use have been known to venture into the outdoors with the UV-protection afforded by a decent pair of polarized sunglasses, we wouldn’t expect Costa Del Mar to warn us of the dangers of the sun exposure we undoubtedly will receive to the rest of our faces when we neglect to wear sun screen. Even though this opinion did not expressly create a duty on behalf of the consumer, consumers must recognize that there comes a point with the use of any product at which the manufacturer’s duty to warn must end and the user’s common sense must take over.

Happy Valentine’s Day

We’re of two minds on this particular occasion, the greeting card holiday known as Valentine’s Day. On the one hand, we feel that we should recognize all of the people out there who will find time today to recognize their love for one another. After all, there’s something to that, we suppose. So, for them, we feature the comic book cover above, that of Marvel Valentine Special #1, published back in the halcyon days of 1997. However, we recognize that the super majority of our readership here is comprised of lawyers, all of whom are extraordinarily cynical by nature. Surely, they are unappreciative of holidays premised upon sincere and genuine human emotions. So, for them, we include the cover below, that of Forbidden Worlds #24, published back in 1953. That one may be a bit more their speed, particularly the litigators. Oh, well.

All kidding aside, we wish our readers a happy Valentine’s Day today.

Friday Links

  • The comic book cover above is that of Star Spangled Comics #10, published way back in 1942. Depicted are The Guardian, sitting a bit too casually in the jury box, and members of the Newsboy Legion, who appear to be conducting a criminal prosecution of sorts. Meanwhile, someone at counsel’s table seems to be drafting the confession of Nick Cappa, the apparent villain of the story, although it’s unclear from the cover whether Cappa is the defendant standing trial. The presiding judge, who is apparently rather lenient on courtroom decorum, looks eerily like Clark Kent, doesn’t he?
  • We just realized that this month marks the twentieth anniversary of the publication of John Grisham’s novel, The Firm, which according to Wikipedia, was first published on February 1, 1991. The popular film based on the novel, directed by the late, great Sydney Pollack and starring Tom Cruise, was released two years later in June of 1993.
  • RockAAA.com, not an insurance website, asks “Is your download collection insured?” Good question. What happens if you lose both your desktop computer and any external hard drive back up due to some type of accident? We here would be crestfallen. That article, published last November, just recently came to our attention, and notes that most insurance policies in the United Kingdom do not cover downloaded media.
  • The Faculty Lounge has a brief post – with links to candidate bios – regarding the five finalists for the dean position at the University of South Carolina law school.
  • Alan H. Crede at the Boston Personal Injury Lawyer Blog authors this post entitled “CPSC May Mandate Flesh Detection in Table Saws: Is It a Good Idea?” An issue to monitor, that.
  • Our own Jim Dedman takes a break for law blogging to review the new album by David Lowery, the former frontman of such bands as Cracker and Camper Van Beethoven. See his thoughts here at the Dead Journalist blog, a music site out of Atlanta.

Florida Court: Members of Decertified Tobacco Class Action May Use Factual Findings in Individual Cases

Cigarettes and asbestos are two products that refuse to phase out of products liability cases. And, in the case of cigarette smoking, that long litigation history recently came back to haunt R.J. Reynolds Tobacco Company in an appeals court in Florida in the case of R.J. Reynolds Tobacco Co. v. Martin, 2010 WL 5074839 (Fla. Ct. App. Dec. 14, 2010).

A little background. In 1994, a class action was filed against cigarette companies, including R.J. Reynolds, seeking damages for smoking-related illnesses and deaths. The class was eventually decertified by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The case didn’t die there, though; as the Court in Martin stated, the Florida Supreme Court “allowed certain jury findings from the class action to have res judicata effect in any subsequent lawsuits by individual class members seeking damages from the defendants.”

The Engle trial was divided into three phases. During Phase I, the jury was asked to consider “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking” and entitlement to punitive damages. Phase II dealt with whether the three class representatives received compensatory damages and the amount of class punitive damages they would receive, if the jury found entitlement to punitive damages during Phase I. Phase III would deal with liability to and compensatory damages for the remaining class members.

During Phase I, the jury found evidence to prove several claims against the tobacco defendants, and it also concluded that there was sufficient evidence for an award of punitive damages. Following Phase II, the jury awarded $12.7 million to the class representatives, and $145 billion in punitive damages to the class. (Note: yes, we said billion, with a “b.”) The defendants appealed before Phase III began.

The Martin case was the first to consider the appeal of the preclusive effect of the Phase I findings as to individual class members. At the trial phase of Martin, the jury awarded Plaintiff $5 million in compensatory damages (later reduced to $3.3 million based on apportionment of fault) and $25 million in punitive damages. On appeal, the Court framed the issues as follows:
RJR primarily contends that the trial court gave the findings approved in Engle overly broad preclusive effect and thus relieved the plaintiff .
. . of her burden to prove legal causation on her negligence and strict
liability claims. RJR also asserts [Plaintiff] failed to prove the reliance
element of her fraudulent concealment claim, and that the punitive damage award
is excessive and unconstitutional.

The Court of Appeals affirmed the trial court’s use of the Phase I findings from Engle, stating that during Phase I of Engle, “the jury considered and determined specific matters related to the defendants’ conduct” and that, in trying to minimize the preclusive effect of the Engle decision, “[R.J. Reynolds] urges an application of the supreme court’s decision that would essentially nullify it.” The Martin court also declined to follow an Eleventh Circuit decision in Brown v. R.J. Reynolds Tobacco Co., 576 F. Supp. 2d 1328 (M.D. Fla. 2008), stating that “we find it unnecessary to distinguish between [issue preclusion and claim preclusion] or to define what the supreme court meant by ‘res judicata.’”

The decision goes on to discuss several related issues, but the damage was done primarily by this holding, which is just dangerous. As mentioned earlier, tobacco and asbestos are two products with long histories in the courts. True, Engle specifically discussed, considered, and ruled that class members who were purported members of the decertified class action could use the findings later as they brought individual suits and it is possible that the issue will stay relatively contained and limited to those cases. However, the Engle and Martin decisions also crack the door just enough to give plaintiffs the idea that they can reach back years, if not decades, to discover findings against defendants that may benefit them if their own court allows them to use the findings for their own advantages.

Unfortunately, there is also a huge potential incentive to trial courts to use these prior findings as well. Here in South Carolina, and probably across the nation, court systems are struggling to keep pace with long dockets and reduced budgets, and it would be very easy for a court to cut corners, save time, and rely on prior findings against a defendant who routinely comes before it. Strangely, this approach could backfire–in jurisdictions where past holdings rule, plaintiffs will race to file their claims there, creating just the problem the courts sought to avoid.

False Name Results in Dismissal of Complaint

Shakespeare may argue otherwise, but a person’s name carries great legal weight, and the prosecution of a civil claim under a false name may result in the dismissal of the claim with prejudice. In Santiago v. E.W. Bliss Co., — N.E.2d —, Nos. 1-10-0796, 1-10-0780, 2010 WL 5292919 (Ill. Ct. App. Dec. 21, 2010) [PDF], the Appellate Court of Illinois decided a certified question and set forth the facts of the case as follows:
On May 12, 2006, plaintiff was injured while working with a punch press. Components of the machine were manufactured by defendants, and on May 9, 2008, plaintiff filed a product-liability complaint against defendants in the circuit court of Cook County. The initial complaint identified plaintiff as “Juan Ortiz,” and it did not indicate whether he had ever been known by any other name. Plaintiff filed his first amended complaint on November 4, 2008, naming additional defendants that had been identified during discovery. The first amended complaint also named “Juan Ortiz” as the sole plaintiff.

During written discovery, plaintiff received at least three sets of interrogatories from various defendants. Among other information, each set of interrogatories asked plaintiff to disclose personal identification information, including his name, work history, and social security number. Plaintiff answered the interrogatories on February 25, 2009, identifying himself as “Juan Ortiz.” As required by section 1-109 of the Code of Civil Procedure . . . plaintiff signed and verified each interrogatory with the signature “Juan Ortiz.”

Defendants deposed plaintiff on May 19, 2009. When defendants asked plaintiff to state his full name, however, plaintiff responded that his name was Rogasciano Santiago, not Juan Ortiz. This was the first time during the course of litigation that plaintiff had used this name, and defendants had not previously been aware that plaintiff’s true name was not Juan Ortiz. The record does not disclose whether plaintiff’s attorney was aware of plaintiff’s true name.

Mr. Santiago/Ortiz moved for leave to amend the complaint to substitute his real name. The circuit court granted leave, after the statute of limitations had run on the products claim, and then the court asked for assistance in determining the effect of the amendment on the substantive claim given the facts and the defendants’ motion to dismiss the amended complaint. First, the appellate court ruled that dismissal of the complaint with prejudice is not a mandatory sanction, but it may be an appropriate sanction given the facts of the case. Second, the appellate court held that an amendment to substitute the real name of the plaintiff made after the statute of limitations has run bars the claim because the amended complaint cannot relate back to the original filing. The appellate court then instructed the circuit court to take actions consistent with its opinion.

There are several points for discussion, probably worthy of multiple posts, but here are just a few. First, this may create a certain conundrum for the plaintiffs’ bar. It’s unclear whether there was any willful blindness here, but when a lawyer decides to take on a case of a person who may or may not be properly documented, discovery certainly includes some risks that may have ramifications outside of the lawsuit. I am sure, though, that this would have been a great deposition to take or attend. Not often does the deposition go south right after “Can you please state your full name for the record?”

Next, this case shows that defense counsel should always ask the routine, mundane questions because the answers may let you out of a lawsuit. In addition, the timing of the filing of the complaint and subsequent discovery can certainly impact the merits of the case. Finally, the court shows that it is not going to allow the judicial system to be tampered with. There is a certain calculus in play in this case. Perhaps this was a case where the plaintiff’s goal was to settle prior to deposition. In any event, although a person who may or may not be properly documented has access to the court system, extrajudicial issues certainly play a part in the decision to bring what may otherwise be a meritorious case.

Shoes Offering Easy "Workout" are New Class Action Targets

Mall walkers beware: Those “toning shoes” may not deliver on their promises of getting more exercise and burning more calories for each step walked. As least, that is the accusation raised by a series of proposed class-action lawsuits against makers of the fitness shoes, who have long touted the rounded-bottom shoes as a way of toning legs and getting in shape without ever stepping foot in a gym. The ramifications could be huge, as MSNBC reports that sales of toning shoes were expected to hit $1.5 billion in 2010, which is a 400 percent increase from sales in 2009.

ConsumerAffairs.com reports that the most recent shoemaker to face such claims is New Balance, which recently was sued by a Los Angeles consumer alleging that the shoe company’s advertisements were “false, misleading, and reasonably likely to deceive the public.” She, like the plaintiffs who came before her, seeks court approval for class action status. Before this most recent claim, Boston-based Reebok was hit with a similar suit in late 2010 involving its EasyTone brand. That lawsuit reportedly demands that Reebok conduct a “corrective advertising campaign” and reimburse consumers who bought the allegedly defective product. Many of the brands sell for prices in excess of $100. Finally, Skechers is dealing with a similar lawsuit for its alleged “false and misleading advertising campaign” with regard to its Shape-ups brand.

MSNBC further reports that plaintiffs in these suits may rely on a study commissioned at the University of Wisconsin at La Crosse by the American Council on Exercise (yes, there really is such a thing). Researchers compared people walking on treadmills wearing regular running shoes and various brands of toning shoes. They reportedly found from this study that “[t]here was not even a hint of something going on.” Shoemakers, however, have questioned the validity of this study and instead point to numerous other studies previously conducted which they point to as showing “overwhelming” evidence that these products work.

All shoe companies stand behind their products and have said they will vigorously defend their toning-shoe brands. It is yet to be seen whether any skepticism raised by these lawsuits will curb consumers’ appetites for the easy workout shoe.

Drugmaker’s Decision to Halt Production of Drug Threatens U.S. Death Penalty System

Not too long ago, The Wall Street Journal Law Blog reported that drugmaker Hospira, Inc., based in Lake Forest, Illinois, will permanently cease production of sodium thiopental, an anesthetic that is a key component for the lethal injection drug combinations used in capital punishment. Although states can use a different anesthetic in place of sodium thiopental, such a switch likely would have to be approved by courts and potentially state legislatures.

According to an article in The New York Times, Hospira had planned to resume production of the drug this winter at its plant in Italy, as it does not have any domestic facilities capable of producing the anesthetic. The Italian parliament, however, issued an order prohibiting exportation of the drug if it might be used to perform lethal injections. Hospira issued a statement on January 21, 2011, in which it noted the difficulty of “control[ling] the product all the way to the ultimate end user” to ensure it was not used for capital punishment. Given the issues surrounding the product and the challenges associated with bringing the drug back to the market, Hospira decided to “exit the market.”

Last year, a temporary halt in production delayed scheduled executions in California and Oklahoma. As a result of the shortage, pentobarbital, a drug used to euthanize animals, was reportedly approved for use in capital punishment in Oklahoma when the state sought court clearance to use the drug as a substitute. The New York Times reports that the process of approval in many states may take much longer than that provided for in Oklahoma. Specifically, it quotes the executive director of the Death Penalty Information Center, who notes that many states will require formal proposes, public comment, and challenges in court, which is a process that can take months to complete. It is expected, in light of Hospira’s recent statement, that most states will now follow Oklahoma’s lead in seeking similar approvals of the substitute drug.

The news of Hospira’s decision has reignited debates online about the merits of capital punishment. (See here and here, for example). Hospira’s announcement most certainly will cause states throughout the country to scramble for approval of a new drug combination.

Friday Links

  • Believe it or not, but the Marvel Comics character She-Hulk is an attorney. Above, you’ll see the cover of The Sensational She-Hulk #59, published not so long ago in 1994, during which She-Hulk, clad in her courtroom attire, asks the court for a “short recess” so that she can dispose of the host of super villains who have appeared. (One wonders how they all bypassed the security at the courthouse entrance). Whatever the case, we suspect the request was granted by the trial court judge. She-Hulk’s Wikipedia entry describes her as a “highly skilled lawyer” who has “served as legal counsel to various superheroes on numerous occasions.” She apparently practices at the fictional firm of Goodman, Lieber, Kurtzberg & Holliway which, curiously enough, has its own Wikipedia entry. (Below, at the end of this post, you’ll find the cover of She-Hulk #7, published very recently, only back in 2006. Note that She-Hulk dresses up for hearings and walks up the courthouse steps just like real lawyers do!)
  • The ContractsProf Blog uses a clip from “Seinfeld” to illustrate the principles of Lauvetz v. Alaska Sales & Serv. d/b/a Nat’l Car Rental, 828 P 2d 162 (Alaska 1991). We encourage this method of legal instruction. As you know, we love “Seinfeld.”
  • You may recall that here and here we mentioned the case of Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., (4th Cir. Feb. 4, 2010) (PDF), in which the Fourth Circuit adopted the last served defendant rule in the removal context. Beware: that case is now no more. Brian Peterson of the West Virginia Legal Weblog reports that the Fourth Circuit, en banc, has issued a new opinion in the case and held that it will not adhere to the last served defendant rule after all. Rather, it has elected to follow the McKinney Intermediate Rule. See the new opinion here. [PDF].

  • Eric Goldman of the Technology & Marketing Law Blog writes about Badella v. Deniro Marketing LLC, 10-03908 CRB (N.D. Cal. Jan 24, 2011), a putative class action brought on behalf of “lonely and vulnerable men” who claimed they were tricked into using an online dating site. The court refused to dismiss all of their claims. Those are going to be some great depositions.
  • We must confess that we love it when Plaintiffs claim one thing in their lawsuits and entirely contradict themselves with posts and pictures on Facebook. This past week, that topic was apparently quite popular, with a story at MSNBC/Reuters and follow-ups here at Overlawyered and here at the Wall Street Journal Law Blog. While you’re off reading those reports, we’re just going to go set our Facebook Wall to private.
  • Deadline Hollywood, a widely read Hollywood blog, reported this week that pay cable giant HBO has bought the rights to “Hot Coffee,” the Susan Saladoff directed documentary about the Stella Liebeck McDonald’s hot coffee case. As you recall, we previously commented upon that film here. This, of course, means that the film will receive a much wider audience than it did at the Sundance Film Festival, where it premiered just a week ago . Writes Deadline Hollywood‘s Mike Fleming:
    EXCLUSIVE: HBO has closed a deal for Hot Coffee, the Susan Saladoff-directed competition documentary which focuses on how corporations have used the memory of outlandish legal verdicts as a way to press for tort reforms and avoid jury trials through arbitration on cases that actually have merit.

    HBO’s Sheila Nevins viewed the documentary after it premiered last Monday. I’m told the deal was mid to high six-figures. HBO licensed the film for broadcast and VOD for 2 years, and will afford the film a qualifying Oscar theatrical run before it airs on the pay channel. Preferred Content’s Kevin Iwashina brokered the sale. Carly Hugo and Alan Oxman produced with Saladoff.

    The film’s title refers to the famous case of a woman”s million dollar judgment from McDonald’s over a spilled cup of coffee. Saladin, a lawyer, focuses on other outrageous cases that illustrated where corporations were negligent or unresponsive. They include a case involving Halliburton, which housed a 19-year old worker overseas in a barracks with men and ignored her concerns. She was gang-raped.

    Although we caught some grief last week for pointing out Saladoff’s career as a Plaintiff’s attorney and longstanding ties to various “civil justice groups,” we stand by our post and look forward to see the film when it hits our television screens.

Our Take on the Olive and Kucinich

Before writing this post, I’ve made myself a sandwich, free of foreign material and animal products, with a short stack of lettuce, and which leans to the left. Of course I have named this creation the Dennis Kucinisandwich. I wish that Rep. Kucinich had been more courteous to me, as I did not have a chance to opine on his lawsuit before he went and settled it. Nevertheless, the economy still seems pretty bad in Cleveland, so I can’t fault him for taking the money.

I am talking about the olive pit case, of course, recently filed and settled by Rep. Kucinich from Ohio. Multiple news sites and blogs have lambasted Rep. Kucinich for his suit that claimed serious and personal dental injury. Rep. Kucinich even posted this release on his website, revealing some personal details about the effects of biting into an olive pit. Questions abound about Rep. Kucinich’s reasonable expectations of what comes in a sandwich wrap, especially being a long-time vegan, and, presumably knowing that olives naturally have pits. And before we engage in some deeper thoughts on the issue, we would invite you to comment with 2012 Presidential campaign slogans for Rep. Kucinich. Here are a few to get you started.

1) Olive (pronounced in a Southern Drawl “I – love”) Dennis
2) Vote Dennis. All others are pit-iable.
3) Kucinich – Building bridges (in my mouth)
4) I’m like you. I sue.

For some reason, people have a problem with the thought behind number 4, i.e, Rep. Kucinich exercising his right of access to the courts. Surely members of Congress have lots of resources and tremendous insurance, and Rep. Kucinich should have just taken care of this himself. Why? Putting aside our conservative, defense-oriented tint for a moment, why should he do that? Rep. Kucinich was injured by the fault of another and had a potential claim. Why shouldn’t he sue? The thought seems to be that a “rich” person should not litigate matters. (Not Mitt Romney rich, of course, but certainly Cleveland rich.) It’s not really clear that Rep. Kucinich was in a better place to bear the loss. After all, that is what insurance is for, to spread the cost of risk, and the cafeteria was surely insured.

I am at a loss as to why a litigious public would aggrieve Rep. Kucinich over doing what most other Americans would do. Rep. Kucinich represents a precinct in Ohio, where, I’m sure, people file lawsuits over personal injury. My take is that the perceived “outrage” over this “frivolous” lawsuit stems from the institutionalization of what a lawsuit is now. It is no longer a means to monetize losses or allocate damages to an injured party. Lawsuits are a means to gain power and money (with or without injury). Rep. Kucinich, being perceived as rich and powerful, is somewhat mocked for filing a lawsuit that, on the surface, seems to have some merit. He has no need to file a lawsuit, because he is already rich and powerful. Apparently, potential claims are no longer enough. There is in implicit requirement that personal injury lawsuits are now a means to riches rather than a means to restore loss.

Shame on you, Rep. Kucinich, for having a real injury.

Marketing vs. The Market: A Debate About Bilingual Warnings

A few weeks ago, we commented upon the recent Florida case of Farias v. Mr. Heater, Inc., — F. Supp .2d —, No. 09-CIV-23789, 2010 WL 4814660 (S.D. Fla. Nov. 19, 2010) to start a discussion on bilingual warnings and what, if any, duty a manufacturer has to provide them. In so doing, we questioned what, if any, responsibility a manufacturer should have to provide bilingual warnings here in the United States, since the country has no official language and prides itself on its rich cultural and linguistic diversity.
Friend of the blog and John Marshall Law School professor Alberto Bernabe recently responded to our post on his own blog, and he made a number of interesting points. Just as the Farias court did, Professor Bernabe focused on the issue of marketing. The Farias court held that the heater manufacturers had no duty to provide a warning in Spanish in part because the heaters had not been marketed directly to a Spanish-speaking population, distinguishing the case factually from an earlier decision in a Florida federal court, Stanley Indus., Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992), in which the product had been directly marketed to a Spanish-speaking population.

Professor Bernabe asked the following question in response to the Farias decision and our post:
If we are ready to say that we should recognize a duty if the product is marketed to a specific audience, is it that much of a leap to say we should recognize a duty if the product is marketed in a particular market. By this I mean, there are specific areas in this country that are known to be centers of foreign populations. And if there is a great example of this it is Miami! Let’s face it, Miami is a bilingual city. A large portion of the city is known as “Little Havana.” Everyone knows this. So is it really that burdensome to suggest that labeling should be different for that market?

His question, therefore, is whether the concept of duty in this situation should be based on marketing, or just market. As Professor Bernabe himself appears to acknowledge, this would absolutely extend the concept of duty beyond reasonable limits. Miami is the easy case – there are parts of the city in which road signs are written only in Spanish.

But what about places like New York City, where huge populations of non-English speakers are concentrated in particular areas, but also run right into each other? For years the areas of the city known as “Little Italy” and “Chinatown” have been separated by little more than about a half a city block. There is also a huge Puerto Rican population in the city, along with countless other pockets of peoples of different nationalities and language in that city.
If we were to focus on the “market” itself, rather than the “marketing,” then manufacturers that sell any product in New York City would have to hire the United Nations to translate warnings into virtually every language spoken on the earth. Any manufacturer who bought advertising time on a national basis on the networks would have similar problems.

We’re not suggesting there is an easy solution. While we think there needs to be a reasonable limit to the duty imposed on manufacturers, it would also be unreasonable for us to say that manufacturers should be able to stick their collective heads in the sand and ignore the fact that there are people in this country who can’t read or understand English. For now, the marketing issue seems to be the best we have.

(Back in November, we interviewed Professor Bernabe as a part of our Abnormal Interviews series. You can read that interview here.).