Friday Links

  • We recently realized that most newly minted lawyers are now too young to remember watching “L.A. Law” when it originally aired back in the late 1980s and early 1990s. This is sad news. How is it that a practicing lawyer can be unaware of the fictional exploits of the McKenzie Brackman firm? Was it that long ago in the past when the show left the airwaves in 1994? Was it that many years ago that the Rosalind Shays character perished by falling down an elevator shaft? So, what can we do but commemorate this program by sharing with you the cover of Mad Magazine #274, published way back in 1987? (An aside: One of the writer contributors of this blog actually bought this issue off the newsstand back in ’87, but we’re not going to tell you which one of us it was so as to protect the innocent.).

  • You know, we here at Abnormal Use are usually unsympathetic to folks trying to get out of jury duty, but we think this may be the best excuse we’ve ever heard.
  • Eric Goldman of the Technology & Marketing Law Blog directs us to a new federal case from Nevada in which the court found that the republication of a newspaper article in its entirety was fair use under the particular circumstances of the case. We hope that new jurisprudence doesn’t apply to Abnormal Use posts in their entirety. Eek.
  • Check out Just Enrichment, a new legal blog. Interesting stuff. (Hat tip: Volokh).
  • Ruthann Robson of the Constitutional Law Prof Blog alerts us to an interesting footnote about music criticism from a 1989 dissent by Justice Marshall. That still doesn’t top the Fifth Circuit Talking Heads opinion, though. But then again, what possibly could?
  • This new Georgia suit might be the most interesting suit you read about this week.

Hydrogen Cars: The Fight Over the Price Tag of Development

Recently, The Washington Post published an online article about the future of the hydrogen car and the effect that the current budget fight will have on this technology. According to the article, President Obama’s administration has continued to cut funding for research and development of cars powered by hydrogen, putting its weight behind electric cars instead. Former President George W. Bush was apparently much more hopeful about the future of hydrogen power and provided more funding to the research. In a related article, the South African weekly newspaper Mail & Guardian discussed the challenges of re-fueling hydrogen powered cars, and how private sector scientists and engineers are working on that problem, too.
The relationship between private and public funding and development of particular technologies is one to watch; it’s interesting to see how one affects the other. For instance, is it an accident that NASA started to think about getting out of the space business, just on the heels of Virgin Galactic’s appearance on the scene? If there is money to be made in the marketplace on hydrogen cars, venture capital and similar sources of private funding will make sure that the federal government’s belt-tightening won’t completely stall development. I, for one, can’t wait for the first Ford Hindenburg to roll off the assembly line.
What does all of this have to do with products liability? Nothing yet, because there isn’t yet a hydrogen car on the market. But my reference to the Hindenburg may not be far off – part of the problem with hydrogen as a fuel source is a perception problem. When the first hydrogen car malfunctions – and as a brand new product, rest assured that there will be bugs to work out – the media and the plaintiffs’ attorneys will use that perception to stir up fear about the technology.
In fact, fear plays a huge role in trying products cases in general – stirring up thoughts of all of those latent defects in our food, cars, and nearly everything else we run across in our lives for the jury to sweat about and decide where best to assign blame for the consequences. So many, in fact, that we here at Abnormal Use can find something in the world of products liability to write about every business day. Thankfully, products liability law has developed in a way that (mostly) takes this fear mongering out of the equation. Well, at least in theory. We’ll see how it all plays out once hydrogen cars hit the roads.

Recent Complaints Allege that "Your Baby Can Read" Products Do Not, in Fact, Teach Your Baby to Read

A class-action lawsuit has been filed in California against the makers of “Your Baby Can Read” products. The complaint was filed on behalf of a class of consumers who purchased the infant and toddler educational programs based on the company’s claims regarding the effectiveness of its products. Television and radio advertisements for the products in question allegedly made false and misleading claims, including claims that the early language development system could teach a three-month-old baby to read by nine months of age, could enable a five-year old to read at a junior high school level, and could teach infants with Down syndrome how to read.

According to the complaint, such claims made by the company simply are not supported by scientific evidence. Criticism of the company’s products and allegedly misleading advertisements, it seems, has grown in recent weeks. TODAY.com reports that the Campaign for a Commercial-Free Childhood, a national watchdog group that previously successfully campaigned to change the way that the “Baby Einstein” program marketed its products, has filed a separate complaint with the Federal Trade Commission alleging that makers of “Your Baby Can Read” have engaged in deceptive marketing practices to convince parents to buy its products. It has requested that the FTC stop the company from continuing its allegedly deceptive marketing practices, and that it offer full refunds to “all those parents who have been duped.”

The problem with the educational products seems to be two-fold. First, doctors and scientists who have tested the products have reportedly found that infants using the products are not reading, but rather are memorizing the shapes of the letters presented. There is no evidence, the class-action plaintiffs allege, that this memorization process increases a child’s ability to read or comprehend. Second, a representative for the Campaign for a Commercial-Free Childhood points out that the program is actually harmful to children, as it encourages them to sit in front of television screens and computer monitors, getting them “hooked on screens” too early in life. In fact, the group notes that if parents follow the “Your Baby Can Read” instructions, after nine months, babies would have spent more than a full week of 24 hour days in front of a screen.

It remains to be seen what effect these two recent complaints will have on the maker of the infant educational products and on its approach to advertising. It seems that the old-fashioned approach to teaching your children to read – by reading aloud to them – triumphs.

Manufacturer’s Duty to Warn Does Not Include Duty to Train Airline Pilots

In Glorvigen v. Cirrus Design Corp., 2011 WL 1466393 (Ct. App. Minn. April 19, 2011) [PDF], the Minnesota Court of Appeals considered how far a manufacturer’s duty to warn extends in the context of piloting an aircraft. In so doing, the court found that any such duty does not extend so far as to require the manufacturer to provide pilot training.

The facts were these: In 2001, Gary Prokop received his pilot’s license, training mostly on an aircraft manufactured by Cessna and logging most of his hours in that plane, as well. He had a visual-flight-rules certification, which meant that he was not permitted to fly when weather conditions might require the use of instruments. He subsequently completed all of the training he needed to take the test to be instrument-certified, but he had not yet taken the test.
In 2002, Prokop bought a new plane, a Cirrus SR22. He was provided a Pilot’s Operating Handbook and FAA Approved Airplane Flight Manual for that aircraft. Also included in the purchase price of the plane was two days of “transition training.” Not to be confused with classes on how to actually fly a plane, this “transition training” was designed simply to show a pilot how the new aircraft differed from the plane the purchasing pilot had previously flown. In this case, the transition training was supposed to have included training on the autopilot system of the Cirrus plane, a feature Prokop’s original Cessna lacked. In addition to this two days of transition training, Prokop purchased and attended an additional day and a half of training.
Following these training sessions, the instructor was supposed to grade the pilot on specific maneuvers on an evaluation sheet, leaving blank those maneuvers which had not been performed by the pilot. Following his training, Prokop received “S” for “satisfactory” on all maneuvers except one that involved the use of autopilot in switching between flying visually and flying with the use of instruments. That part of the evaluation form remained blank.
On January 18, 2003, after being cleared to fly, Prokop and a friend, Jamed Kosak, took off from Grand Rapids, Michigan on their way to St. Cloud for their sons’ hockey game. A few minutes later, the plane struck the ground and both men were killed in the accident. The trustees for the decedents’ next of kin sued Cirrus; the trustee for Kosak’s next of kin also sued Prokop’s estate. The Kosak complaint alleged that “Cirrus undertook a duty to provide Prokop with flight training, that Cirrus breached an implied warranty of merchantability by omitting a flight lesson [concerning switching from visual to instrument flying using autopilot], and that Prokop was negligent in piloting the aircraft.” The Prokop complaint alleged that Cirrus was negligent in the “designing, testing, manufacturing, sale, distribution, maintenance, warnings, pilot training, and instructions given regarding the aircraft.”
Much of the ensuing trial focused on the “transition training” – what specifically was taught by the instructor, whether or not that one training session in question was actually performed or not, and whether or not the crash would have happened if the training had been performed properly or differently. Following the trial, the jury awarded both trustees damages.
On appeal, however, the appellate court focused not on the adequacy of the transition training, but whether or not the manufacturer, Cirrus, owed a duty to train Prokop at all. The issue, as framed by the appeals court, was, “Does an airplane manufacturer’s duty to warn by providing adequate instructions for the safe use of its aircraft include a duty to provide pilot training?”
The appellate court concluded that it does not, for two reasons. The first focused on the purpose of the transition training, and whether or not it had anything to do with the manufacturer’s duty to warn:
Respondents assert that Cirrus offered transition training as a means of satisfying its duty to warn by providing adequate instructions for safe use. But the record indicates that the purpose of transition training was to assist Prokop to be proficient in the use of an unfamiliar aircraft. Although proficiency training undoubtedly promoted the safe use of the SR22, we find no support in the law for respondents’ proposition that Currus’s duty to warn included an obligation to train Prokop to proficiently pilot the SR22–which is the crux of respondents’ claims.

Second, the court focused on the fact that at the time he purchased the aircraft, Cirrus provided Prokop with two sets of written instructions: the Pilot’s Operating Handbook and FAA Approved Airplane Flight Manual for the Cirrus Design SR22.

Therefore, the court held, “any liability based on appellant’s failure to provide adequate transition training cannot be sustained under a product-liability theory.”

This is the right decision for a few reasons. First, the transition training was not mandatory, nor was it a prerequisite for buying the plane from Cirrus in the first place. If Prokop had never availed himself of the training offered, then the adequacy of the training would never have been put under the microscope. Secondly, there was never any allegation that the training Prokop did receive was performed negligently. And, finally, the liability waves from a finding that Cirrus did owe a duty to train Prokop could have turned into tidal waves, leading to de facto requirements that chainsaw manufacturers provide training to every person who buys their product from a Home Depot, car manufacturers give driving lessons, ad infinitum. But for now, the floodgates remain closed on this issue, thanks to the Minnesota Court of Appeals.

Abnormal Interviews: Ted Frank of the Center for Class Action Fairness

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to the founder of the Center for Class Action Fairness and an Adjunct Fellow at the Manhattan Institute, Ted Frank. We have cited Mr. Frank often in connection with our work on the Stella Liebeck McDonald’s hot coffee case. He was kind enough to give us his thoughts on that famous case as well as his other projects. The interview is as follows:

1) What do you think is the most significant recent development in torts and product liability litigation?

It goes beyond tort and product-liability litigation to some extent, but the erosion of the preemption doctrine is of some concern. It’s ironic that, even as we see the federal government assert its authority over local affairs in legislation such as PPACA and cases like United States v. Arizona, we’re simultaneously seeing this administration insist that state court juries should exercise dominion over interstate commerce already fully regulated by the federal government. This seems precisely backwards.

2) The Wall Street Journal has a characterized you as a “leading tort reform advocate.” In your view, why is tort reform needed in our system, generally, and in product liability litigation, specifically?

I view tort reform as a means to an end, rather than an end in and of itself. I consider myself a consumer advocate, and it just so happens that the pendulum of the legal system has swung so far in favor of lawyers that consumers are being hurt, and tort reform is needed to restore balance. If ever the pendulum swings too far the other way, you’ll see me switch sides on these debates. As it is, if anyone asks me, I tell them I oppose collateral source reform, which just punishes individuals with the foresight to purchase insurance.

There are so many places where reform is needed. The judiciary and the bar aren’t doing enough to punish or deter fraudulent cases. We have very sensible rules that courts don’t second guess the good faith decisions of lawyers or prosecutors, or the exercise of business judgment by executives, but those rules are thrown out the window when it comes to second guessing the design decisions of engineers or the judgment calls of physicians, though there is every reason to believe that courts are even less likely to get those questions right, especially in hindsight. And uncapped noneconomic or punitive damages introduces an element of complete randomness into the system. Even when the system is considered to be “working,” the majority of the expense of the system goes to paying the administrative costs of the attorneys rather than to the putative victims: we wouldn’t tolerate that level of overhead in any other sector of the public or private economy. All of these features distort incentives, deter innovation, result in unjust punishment of the innocent, and hurt the economy and consumers in the long run.

3) Recently, we here at Abnormal Use have written several pieces regarding the Stella Liebeck hot coffee case in which we have cited some of the articles you have written on the subject. Why have you taken an interest in that litigation, and why is it important to dispel some of the “urban legends” that have arisen?

For twenty years I’ve had an interest in urban legends (I was friends with the Snopeses before there was a snopes.com), and several of them stem from the legal arena. One of my favorites involves the Baby Ruth bar: it’s a famous trivia answer that the candy bar was named after Grover Cleveland’s daughter, rather than the baseball player Babe Ruth. Snopes and I did some research in the 1990s, and concluded that the “Grover Cleveland’s daughter” story was almost certainly invented for purposes of trademark litigation against Babe Ruth, who had a competing candy bar.

The Stella Liebeck case was exactly the sort of thing that turns into an urban legend, and there are certainly a lot of inaccuracies that crept into the story as it went viral. The Liebeck case got politicized, however: it was an outrageous result and picked up as a poster child for tort reform, and, fascinatingly, the trial lawyer lobby, instead of reasonably saying “Look: the justice system is never going to be 100 percent correct, there have been a dozen hot coffee cases before this one where the courts got it right and threw it out, and you can’t make public policy based on a single anecdote just because the judge made a mistake here” decided to engage in a misinformation campaign to argue that the Liebeck case was both correct and an aspirational result for our tort system – and a disturbing number of law professors joined that cause. If you Google for the case, the vast majority of results are trial-lawyer sites filled with misstatements of the facts and laws. It’s gotten to the point that, in the majority of tort reform debates I participate in, it’s the trial lawyer who is the first to introduce the subject. I’ve been following the case and rebutting the misinformation on both sides since it first made the news, and it just so happens that the majority of misinformation is coming from the plaintiffs’ lawyer side these days. One of these days, I’ll lock myself in a room for a couple of weeks and write a law review article on the subject so there can be a one stop place for truthful information and arguments about the case.

I have a popular talk I give to law schools where I talk about the hot coffee case and a couple of other lawsuits against McDonald’s called “The Law of McDonald’s” and use that as the framework to talk about the two visions of tort law: personal responsibility versus deep pocket compensation of victims, and why I prefer the personal responsibility route.

4) As the founder of the Center for Class Action Fairness, you have sought to protect the interest of consumers in class action settlements. In your opinion, what needs to be done in order to balance the interest of consumers in class action settlements with the need for tort reform?

Assuming that the Supreme Court doesn’t do anything crazy in the Wal-Mart case, the law is, for the most part, in the right place, and it’s just a question of judges exercising their responsibility to apply it correctly – which is hard to do when the settling parties are making an ex parte presentation to the court, and good-faith objectors don’t have the financial incentive to hire a lawyer to make sure the court gets it right. That’s why I do the pro bono representation that I do: someone’s got to do it.

There are certainly some legislative tweaks possible to resolve some ambiguities in the law that class action lawyers have used to benefit themselves at the expense of consumers. I don’t think it’s a tort reform thing; it should be a bipartisan good government thing. Plaintiffs’ lawyers, as a group, should be supporting what I do, because class action lawyers like Milberg and like Kabateck Brown Kellner make them all look bad when they negotiate settlements that don’t do anything for the class but pay the lawyers millions.

BONUS QUESTION: What do you think is the most interesting depiction of products liability and/or class actions in popular culture, and why?

I have a toy figurine of Lionel Hutz on my bookshelf, but his only class action was the consumer fraud case against the makers of the film The Neverending Story. Larry Ribstein’s scholarship on why Hollywood so consistently gets these issues wrong explains why I find this question tough, but I enjoyed the first half of John Grisham’s The King of Torts for its depiction of a corrupt class action settlement that never would have survived Amchem scrutiny. I’m told I should read Gregg Easterbrook’s The Here and Now, which might well supplant Grisham if I ever get around to it. There’s also Michael Clayton, which takes me back to my days as a law-firm associate setting car bombs for adverse witnesses; it amuses me no end in the scene where the lawyer complains that the case had 85,000 documents and 100 motions. The problem with Grisham is that his books repeatedly have a critical plot point where somebody bribes a state court judge to decide a federal removal motion some way, and it just ruins the book for me when the author gets a federal jurisdiction question so wrong. They really should teach 28 USC § 1446 at the Iowa MFA program.

BIOGRAPHY: Ted Frank is an attorney licensed in Illinois, the District of Columbia, and California and a graduate of the the University of Chicago Law School. He served as the first director of the American Enterprise Institute Legal Center for the Public Interest and was an attorney for the McCain-Palin 2008 campaign. He is currently an Adjunct Fellow at the Manhattan Institute and runs the Center for Class Action Fairness, which he founded in 2009. He is a contributor to fellow legal blogs PointOfLaw and Overlawyered. You can follow him on Twitter here.

Friday Links

  • Sometimes, Superman can’t catch a break. Above, in the cover to Superman Supacomic #162, he is found guilty of “crimes against humanity” by the Guardians of the Universe. We think there may be a few appellate issues here, though. First, why are a group of aliens judging Superman’s treatment of humans? For that matter, Superman is an alien himself, but the Guardians of the Universe, whether judges, members of a jury, or both, don’t appear to be his peers. But the most peculiar component of this judicial procedure is that one of the judges feels comfortable completing the sentence of the other. Yikes.
  • An aside: This past week, one of the contributors of Abnormal Use got in some hot water for mentioning in front of a friend’s toddlers that Superman was, in fact, an “illegal alien.” This revelation, though certainly true, is apparently not for young ears. Don’t try and guess which one of us did committed that social faux pas. Please.
  • Alan H. Crede over at the Boston Personal Injury Lawyer Blog speculates that “Someday A Legal Blog Will Win A Pulitzer.” Yeah, maybe, but we here at Abnormal Use are seeking something a bit more respectable than that: an EGOT.
  • Friend of the blog Jeff Richardson, author of the great iPhone J.D. blog, summarizes this week’s iPhone and iPad related news here, including his thoughts on the recent revelation that one’s iPhone may be tracking more personal location information than previously thought. He does not seemed too alarmed about the news, nor do we.
  • Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm.

Four Loko: PBJ or Goober Grape?

Manufacturers love to combine two independently successful products and pass the combination off to consumers as a new and original idea. After the surge in popularity of energy drinks and the advent of Red Bull-vodka cocktails, it came as no surprise that the alcoholic energy drink was born. Unfortunately, just like Smucker’s Goober Grape, the results were less than stellar.

Last November, the Food and Drug Administration (“FDA”) warned four manufacturers of alcoholic energy drinks that the caffeine added to their product was an “unsafe food additive.” Citing concerns that caffeine may mask the effects of alcohol, the FDA instructed manufacturers to cease adding caffeine to their product or face the possibility of “further action” under federal law. The FDA made no mention of the after-market mixture of caffeine and alcohol. The FDA’s warning was only the beginning of the bad news for alcoholic energy drink manufacturers.

Recently, a New Jersey man sued Phusion Projects, the manufacturer of the popular Four Loko beverage, in state court, claiming that the product caused heart damage. The plaintiff, 22-year-old Michael Mustica, alleges that he developed a heart arrhythmia after drinking two-and-a-half cans of Four Loko over the course of one evening. Each 23.5 ounce can of Four Loko contains 12 percent alcohol, the equivalent of four beers, and 135 milligrams of caffeine, the equivalent of two cups of coffee. Ironically, the plaintiff claims to have fallen asleep prior to waking with a racing heart and difficulty breathing. Along with his claim of negligence, he also alleges that Phusion Projects failed to warn him of the potential danger of combining caffeine and alcohol. The report was silent as to whether these events took place before or after the November FDA warning.

We may want to withhold judgment until more facts surface. First, the plaintiff claims that his heart condition is the result of one night of Four Loko consumption. However, further investigation could reveal that the plaintiff – like many other 20-somethings – has a significant history of caffeine and/or alcohol consumption. A history of this nature can cause heart arrhythmia even without the consumption of Four Loko. Second, while the FDA’s warning about alcoholic energy drinks did not come until November 2010, concerns over energy drink consumption have been expressed since as early as 2008. Four Loko may have lacked a warning, but certainly, the plaintiff was likely aware of the potential health concerns from drinking 70.5 ounces of an energy drink in the span of one evening.

Furthermore, while we here at Abnormal Use have no medical evidence to refute the FDA study, it would seem illogical to hold Phusion Projects liable under these circumstances. At its essence, Four Loko is nothing more than a manufactured version of a cocktail served in every bar in America. If the combination of caffeine and alcohol is as dangerous as the FDA believes, then why hasn’t it – or some other government agency or official – issued a similar report concerning the safety of after-market mixing? We can only surmise that the FDA, just like the rest of us, likes its peanut butter and jelly sandwiches, but hates its Goober Grape.

Which Came First? The Salmonella or the Punitive Damages?

Mmmmmm, salmonella. It will be a while before I enjoy an omelet again. You can read Holt v. Quality Egg, LLC, 2011 WL 1113780 (N.D. Iowa March 25, 2011) and see why. Due to a 2010 outbreak of salmonella allegedly stemming from the defendant’s products, the plaintiffs sought punitive damages, and Quality Egg moved to dismiss those claims. Quality Egg’s motions were denied. In short, the plaintiffs were able to use offensively information from an FDA form that found some “problems” at the egg facilities in (John) Galt, Iowa, and the facts set forth in this opinion surely reflect the unabashed capitalism set forth in the made for Tea Party movie, Atlas Shrugged. The FDA found the following physical manifestations of grossness:

Chicken manure located in the manure pits below the egg laying operations was observed to be approximately 4 feet high to 8 feet high

Un-baited, unsealed holes appearing to be rodent burrows located along the second floor baseboards

Dark liquid which appeared to be manure was observed seeping through the concrete foundation to the outside of the laying houses

The house entrance door to access both House 11 and 12 was blocked with excessive amounts of manure in the manure pits

Live and dead flies too numerous to count were observed at the following locations inside the egg laying houses

It’s not a stretch to say that the plaintiffs pleaded that Quality Egg ran its business in a manner where salmonella contamination was likely to occur. Frequently, I like to wax economical, and I have to agree with the defendant’s course of business here. Given the facts, I think any rational actor choosing between cleaning up 8 feet of chicken manure and the chance of having to pay punitive damages would pay the punitive damages. Other trial strategies of the defendant include using real evidence rather than demonstratives. The smell of the manure will truncate jury deliberations.

I suppose that the lesson learned from this case is that grossness will support a claim for punitive damages. Or that business practices should be reviewed in light of the potential for litigation. Maybe the Quality Egg officers looked at those large piles of dung and thought that nothing would happen, or that the piles would take care of themselves. That was not the case. This is probably a case where some good science and statistics could have informed the egg laying practices: Small piles of manure – small chance of passing salmonella to eggs. Big piles of manure – big chance of passing salmonella. We posted earlier that the industry standard should be allowed a little more weight as a method of explaining business practices to a jury, but I can’t think that the industry standard would be of much help here. The small problems of today can compound and become mountains of manure that are hard to handle in the future.

The cost of preventing pre-term births: questions of ethics, public policy, and potential liability

Here’s the good news: a new drug called Makena manufactured by a company called KV Pharmaceutical was recently approved by the FDA for the treatment and prevention of pre-term births. But the approval has not come without controversy, as reported by media outlets all over the country. [For additional coverage, see here and here]. The problem? The drug, which must be administered by a shot once a week for about 20 weeks, was running about $20/dose prior to the approval. After the FDA gave the drug a nod, however, the price shot up to $1,500/dose. We’ll do the calculation for you: that’s $30,000 over the course of one pregnancy. [Note: the FDA has no control over pricing.] Now, the company has since reduced the price of each dose to $690, as reported by NBC, which would reduce the total price tag to $13,800.00. Nevertheless, the March of Dimes decided to end its relationship with the company.

This is not a new issue for drug companies, or for the people who need the drugs they manufacture. As KV Pharmaceutical pointed out to The Washington Post, the company is spending approximately $200 million developing the drug and having it approved by the FDA.

This is not atypical for the pharmaceutical industry; research and development are very expensive. In order for the company to stay in business and keep finding and manufacturing drugs that are of use to the public, the company should be entitled to recoup those costs and make a profit. But what duty do these companies have to the human race in general? This question can be posed not only to KV, but to the manufacturers of drugs used to treat cancer and other life-threatening conditions. What responsibility do these companies have to all people, and not just the people who have insurance that is willing to pay for these drugs, or others who can open their wallets and foot the bill themselves? It’s a chicken-and-egg problem that doesn’t seem to have a clear answer. For now, there are companies like Ther-Rx, a division of KV, which has developed a program for women who cannot afford the cost of Makena. The company also indicated it might be willing to develop a cheaper generic version.

Even more interesting from our point of view is the potential legal liability companies risk. The Washington Post indicated that “outside experts said the FTC could sue KV if it concludes the company is illegally impairing competition.” A Washington Post article on the subject interviewed an antitrust lawyer on the subject:

“It threatens to extract significant competitive harm on extremely vulnerable pregnant women, and it threatens to significantly inflate health-care costs at a time when controlling health-care costs is a critical national priority,” said David Balto, a Washington antitrust lawyer who worked at the FTC.

This is an issue that will continue to force some tough choices. And, cynical though it may seem, we are certain that litigation about this very issue is inevitable, if not with this drug than with the next one down the line.

Good News for Toyota (at last)

For many, the year 2009 will be remembered as the launching point for several successful careers. President Obama was inaugurated. Chesley Sullenberger became America’s hero. Taylor Swift released 2009′s top selling album leading to her 2010 Grammy. For the Toyota Motor Corporation, however, the year was not so kind.

For Toyota, 2009 marked the beginning of the largest vehicle recall in the company’s history. Initially, Toyota was forced to recall some 3.8 million vehicles upon the discovery that removable floor mats could cause accelerator pedals to stick in the depressed position. Toyota later broadened the recall after determining that the accelerator pedals could stick even without the aid of the mats. In total, over 6 million Toyota vehicles were recalled. As of February 2010, 2,262 incidents of unintended acceleration had been reported. That figure included 815 crashes, 341 injuries, and 19 deaths. Not surprisingly, Toyota became a popular defendant in a plethora of subsequent lawsuits. Reports estimated that these lawsuits could cost Toyota over $3 billion. Certainly, 2009 was a year Toyota would just as soon forget.

Recently, Toyota’s misfortunes took an unexpected turn when the first of these recall-related lawsuits went to trial. In Sitafalwalla v. Toyota Motor Sales, U.SA., Inc., No. 08-CV-3001 (E.D.N.Y. 2011), the plaintiff, Dr. Amir Sitafalwalla, sued Toyota in a New York federal court, claiming that a defect, in either the electronic throttle system or the floor mats of his 2005 Scion, caused his car to suddenly accelerate into a tree. After the plaintiff’s expert testified that the accident was caused by an unsecured driver floor mat, the defense moved to exclude any evidence related to the electronic system. Judge E. Thomas Boyle, the U.S. magistrate presiding, granted Toyota’s motion. With evidence of the electronic system excluded, counsel for Toyota argued that the accident was caused by the driver – not the floor mat. After deliberating for less than one hour, the jury agreed with Toyota.

Jury forewoman, Regina Desio, indicated that after weighing all of the evidence, the jury “came to the conclusion that there was not a defect with the automobile.” Toyota is touting the jury’s conclusion as precedent for the hundreds of other lawsuits yet to be decided. Toyota spokeswoman, Celeste Migliore said:

[The case] clearly demonstrates a plaintiff’s inability to identify, let alone prove the existence of, an alleged electronic defect in Toyota vehicles that could cause unintended acceleration.

While we here at Abnormal Use share Toyota’s enthusiasm with the jury’s decision, it may be premature to accurately forecast the outcome of the outstanding lawsuits. First, jury verdicts lack precedential value. Unfortunately, we have all experienced the enigma of the unpredictable jury. Second, we do not know how much the plaintiff’s own conduct may have influenced the jury’s decision. Certainly, a jury may treat a plaintiff driving at an excessive rate of speed on a neighborhood street differently than a plaintiff gently rolling away from a stop sign prior to the “unintended acceleration.” The plaintiff alleges that his car accelerated as he shifted from drive to park with his foot on the brake. We do not know how credible the jury found these allegations, only that it found Toyota was not liable. Finally, no evidence was actually presented to the jury regarding an alleged electronic defect. Because Judge Boyle disallowed the plaintiff’s evidence on the electronic system, at best, Toyota may cite the jury verdict as evidence that the floor mats were not defective.

Whether this decision is a foreshadowing of things to come or an outlier in a long series of jury verdicts, only time will tell. For the moment, however, we should let Toyota enjoy the good news. Its been awhile.