Friday Links

Depicted above is the cover of the Perry Mason Mystery Magazine #1, published way, way back in 1964. Perry Mason is, of course, the archetypal lawyer, but we’re not quite certain what he is doing with the firearm in his possession. The text on the cover tells us that the gun is one of only two clues Perry has to solve a case, but it seems like what he is doing is evidence tampering. Spoliation, anyone? And what did he do with the glass eye?

Steve Bradford at the Business Law Prof Blog has an interesting post on the ethical issues surrounding attorneys seeking colleagues’ advice on Internet listservs and email lists. Apparently, the Oregon State Bar recently addressed the issue. The only point the Oregon State Bar apparently neglected to address is why anyone is still using listservs in 2011.

We send our congratulations to Robert Wilcox, who was selected this week as the new dean of the University of South Carolina School of Law. Wilcox had previously served as the associate dean for academic affairs at the school.

Friend of the blog Jeff Richardson offers these thoughts about the 2011 ABA Techshow at his site, iPhone J.D. As huge followers of the latest technological trends, we sure wish we could have been there. Unfortunately, we could not make it this year. Alas.

Findlaw’s Decided blog has the latest on the ultimate fate of the appeal of the Winklevoss twins in their continuing legal dispute with Facebook. (Yes, yes, we saw The Social Network and dug it and its many deposition scenes, despite the inaccuracy of them.). Oh, and does any duo sound more like a pair of comic book villains that the Winklevoss twins?

Of Lawn Mowers and Industry Standards in Minnesota

Today is not a day of lighter fare, but it is a day to examine the notion of industry standards determining safety and other matters. The opening sentence in Sobolik v. Briggs & Stratton Power Products Group, LLC, No. 09-1785, 2011 WL 1258503 (D. Minn. March 30, 2011) gives the main operative fact: a lawn tractor user was killed when the lawn tractor rolled over near a ditch. The complaint stated claims on design defect and failure to warn, and that the lawn tractor should have had some device protecting against rollover.

Before we get started, feel free to search for “lawn mower rollover protective device” and see the number of law firms that specialize in lawn mower accidents. You’ll notice that the plaintiff’s attorney in this case has a website advocating the use of roll over protective devices and YouTube videos showing how evil all the manufacturers of lawn tractors are for not using these devices.

These type of sites feed the theory that big corporations are out to make dangerous products as cheaply as possible to sell them and take advantage of an uneducated public. Necessarily, all the big corporations conspire to make sure that some company that doesn’t care about profit can’t make its products any safer than the rest. In the lawn tractor industry, it is not the norm to require some roll over protective device. Surely there are enough players in the lawn tractor market that prevent this industry standard from arising out of some massive conspiracy to sell lawn tractors as cheaply as possible to the detriment of consumer safety. There must be some sound business principle for not mandating a roll over protective device. In looking to the industry standard, I am not advocating that the standard be given some preclusive effect. But I think that the industry standard is more than merely some evidence that any particular design is not defective. While juries usually ferret out the truth, I am a little skittish about a jury being able to say that an entire industry is wrong and all of their respective designs are defective and could be made safer. That reminds me slightly of Homer Simpson’s car design that was to be the epitome of everyman’s desire.

Furthermore, in an effort to generate some comment, let me state that the use of such devices would not necessarily make anything safer. Please refer to the Peltzman effect to see what I mean. I don’t mean to imply that I am up to date on seat belt design data, and that you should not wear seat belts, but, for a while, there were some questions regarding whether seat belts lower risk or merely redistribute it in response to the perceived safety benefit of the seat belts. If you really wanted to make people drive more safely, you would make cars less safe and accidents more expensive. Wouldn’t you drive more safely if a manufacturer installed an axe blade in the steering wheel, and that was part of the safety features of the car? Obviously you couldn’t do this, because safety on the roads depends in part on the choices of all of the other people on the road that you interact with. I’m not willing to increase my risk of serious accident because there are others on the road who may not value my life or theirs as much as I do. But I am unsure if line of reasoning holds true with products that are mostly used in isolation, i.e., a lawn tractor.

I’m not sure you would or could make the argument that the lack of a roll over protective device on a lawn mower increases safety. Certainly when I’ve used a mower near an embankment, I am conscious of the roll over risk, and I change my behaviour in response to that risk. I think it’s certainly arguable that, at least in theory, that if you mandate installation of a roll over protective device you may merely redistribute risk into some other form of accident rather than reducing it. While alternate designs are considered by business, unfortunately, in cases such as the above, that involve serious injury or death, arguing that a roll over protective device doesn’t necessarily increase safety probably doesn’t play well in front of a jury. Which is why allowing a company to rely on industry standards is important. A jury may not be able to hear that the installation of a safety device is a bad idea, but it may be more receptive to the argument that this particular company designed their product in accordance with industry standards. As shown by this District of Minnesota opinion, conforming with the industry standard, is merely evidence that the design was not defective, and perhaps in a jury case that is the best that can be done.

The Peanut Butter Products Liability Litigation Blues

As a defense lawyer, we are often place in the strange position of having to prove a negative. Sure, it’s supposed to be the plaintiffs’ burden to prove his or her case, and in theory, at least, everyone is innocent, er, not liable unless proven otherwise.

But we all know it doesn’t happen that way sometimes.

Take the recent case of the contaminated and recalled peanut butter. You remember all that, right? In 2007, ConAgra Foods peanut butter, marketed under the national brand Peter Pan and Wal-Mart store brand Great Value, were linked to several hundred cases of salmonella poisoning, and a massive recall was issued for the spreads. [Read more about that recall here.]

What followed this recall, dear readers? You guessed it! Massive amounts of litigation! So much, in fact, that it was all consolidated by the MDL Panel, at least for pretrial proceedings.

Since 2007, the slow wheels of justice have been turning. On March 23, the Northern District of Georgia ruled on ConAgra’s motion for summary judgment in In re ConAgra Peanut Butter Products Liability Litigation, 2011 WL 1060990 (N.D. Ga. March 23, 2011).

Not to get too graphic, but there are only a few ways to prove if a person has in fact contracted salmonella poisoning, or if they just have a nasty case of the stomach bug. You guessed it: they test one’s blood and other bodily fluids. The Court officially noted: “[T]hese samples are important in determining causation.” So, a number of plaintiffs stepped up to the proverbial plate and supplied samples. When some samples came up negative for salmonella poisoning, ConAgra moved for summary judgment based on lack of causation. Slam dunk, right?

Apparently not.

The Court denied the motion for summary judgment without prejudice because “without the plaintiffs’ individual medical records, it is unclear when the sample was taken and whether there is a scientific or medical explanation–other than another illness–for a negative test. Therefore, ConAgra is not entitled to summary judgment before individual discovery on plaintiffs’ medical records is complete.”

We’re not sure exactly what the parties have been doing for the four years since this whole thing started, but apparently, the plaintiffs have not been trying to gather medical records or retain experts to satisfy their burden. Nevertheless, the Court granted them additional time to hold ConAgra hostage – otherwise known as “satisfy their burden” – in these cases.

Potential Class Action Suit Involving Keyless Locks Allegedly Easily Breached with Magnet

Eleven lawsuits against lock industry leader Kaba Corporation, a Swiss company with operations in North Carolina, have been consolidated into one potential class-action lawsuit in federal court in Cleveland, Ohio. Cleveland.com reports that the allegations involve the company’s push-button door locks, which the plaintiffs allege can be easily breached with the use of a magnet that fits right in the palm of a would-be intruder’s hand.

The plaintiffs allege that the locks, which can be purchased for less than $200 or more than $1,000 each, depending on the particular model, are defective in design. They also include causes of action for deceptive trade practices, common-law fraud, and negligence. The plaintiffs are demanding that the company replace the locks, pay compensatory damages, and even turn over all of its profits made from the locks. This demand is made in spite of the fact that Kaba has reportedly already developed an upgrade to solve the problem, which it now utilizes and reports could be effectively applied to existing installations. In any event, the plaintiffs are represented by three heavy hitters in the legal community, including Louisiana based attorneys Richard J. Arsenault and Daniel E. Becnel Jr., and Los Angeles-based Mark Geragos (the “celebrity lawyer” who has represented Winona Ryder, Scott Peterson, and musician Chris Brown, among others).

The Kaba locks at issue are widely used within hospitals, airports, casinos, banks, retail stores, jails, and even within the Department of Defense. But interestingly, the lead plaintiffs are not government officials or business owners, but are Orthodox Jews who use the push-button locks on their homes so they can secure their homes without use of a key. During observance of the traditional Sabbath from sundown Friday to nighttime Saturday, adherents do not leave their homes with anything in their pockets. This has made the keyless locks a popular solution.

To date, the plaintiffs have not identified any criminal acts such as robberies that have occurred as a result of any breach of a lock. There still has been some harsh criticism against Kaba, though, by those who claim that the company has essentially taken the position that all locks are capable of being breached; they also point out that the company has not proactively offered to replace or fix the previously sold locks. Another writer at Forbes notes [link includes video of magnetic breach] that Kaba has taken the issue seriously and moved to fix it in its current models, but question why it has not published a warning in the media.

While it sounds like a good idea to alert consumers of the potential breach, though, this similarly would alert the public-at-large that the locks are capable of an “easy” breach. It certainly is a difficult situation to navigate for the company, which likely will be faced with significant costs no matter which path it chooses.

Manufacturer of Text Message System in Truck Has No Duty to Third Party

While litigation drives change and can be an important medium of social commentary, many times it is no more than a less than well thought out attempt to get at a deep pocket. In Durkee v. C.H. Robinson Worldwide, Inc., No. 1:09cv449, 2011 WL 309693 (W.D.N.C. Jan. 28, 2011), there is such an attempt. While the facts are unfortunate, the limits of liability are not. A car with four passengers is struck by a tractor trailer, and the passengers are seriously injured. In the tractor trailer is a text message system that allows a driver to send and receive text messages while the vehicle is in operation. The passengers brought a products liability action against the manufacturer of the text messaging system, alleging that the design and manufacture was defective because an incoming text message could distract a driver.

The manufacturer won on a no duty argument. Note that there was no factual allegation that the driver received a text before the accident, or was in any other way distracted by that system, just that it’s possible that a driver might possibly be distracted. The court correctly found that the plaintiffs were not users of the product, and the magistrate judge noted that if anticipating misuse that could cause foreseeable harm to others was the test, then “no vehicle would be capable of traveling above the speed limit, car ignitions would be equipped with ignition interlock devices, and guns would not be sold to persons with poor judgment.”

Not only that, but anything that could distract, including cell phones, would be subject to a products liability claim. The focus is not on the dangerousness of the product, or the conduct of a distributor, but on the carelessness of the user, and there is already a tort for that. To the extent that this lawsuit is a cry to ban texting while driving or to further restrict drivers, then that’s fine. But the law can’t support finding liability against manufacturers from third parties injured by a user’s careless use of a product. If a brick mason carelessly tosses a brick that strikes a passerby, I don’t think anyone could argue that a viable products action lies with the injured party against the brick manufacturer. Would anyone want a brick that would disintegrate harmlessly if tossed through the air? You can think of endless examples. (Why would anyone design a truck that could jackknife?)

Serious injuries are serious. Injuries are unfortunate, and money is the best substitute that we have come up with for compensating injury. But that money can’t come from anyone, and manufacturers can’t be held responsible by third parties for the carelessness of users, when the product is being used as it should be used.

Friday Links

  • “In another few seconds, I’ll know ‘The Verdict,’” exclaims the apparent defendant featured on the hard boiled cover of Tales of Justice #60, published way back in June of 1956. The series, which billed itself as a compilation of “real rugged tales of justice in action,” does not appear to be the type of lighter superhero fare we typically feature on Friday Links. But there’s a tinge of optimism to the series, it seems, as the cover proclaims that it features “True tales proving that justice always wins!” That’s encouraging.
  • There’s a lawsuit over the Dr. Who villain Davros! (Hat tip: Media Law Prof Blog).
  • You might recall that in February we mentioned that our own Jim Dedman was doing some music blogging on the side for an Atlanta-based music website. He’s written a review of the new album by Jason Isbell and the 400 Unit, which hits stores soon. Check it out.
  • Last week, Eugene Volokh of The Volokh Conspiracy mentioned our recent April Fool’s Day post. As you may recall, we wrote about a fictitious court that held that the Star Wars prequels were unreasonably dangerous and defective as a matter of law. Wise jurisprudence, that. That said, we loved reading the comments to Eugene’s post.
  • Remember Cracked magazine? Not unlike Mad magazine, the juvenile humor themed Cracked, once a staple of newsstands in long ago days, has made a name for itself in the Internet age by creating lists of famous this or thats in popular culture. Well, this week, Christina H. at Cracked published a column entitled “6 Famous ‘Frivolous Lawsuit Stories That Are Total B.S.,” which includes the Stella Liebeck McDonald’s hot coffee case. All we can say is that Christina obviously didn’t read our FAQ on the case. However, we must confess a bit of jealousy that our friends at Overlawyered are cited in the piece.
  • Friend of the blog Ryan Steans of The Signal Watch blog recently visited London for the first time and marveled at the sense of history. Comparing England’s approach to history to America’s, he had this to say over at his blog:
    It strikes me that we in the vast, vast majority of the geography of the US do[es] not have memorials to those who died more than 200 years ago, and the further west one travels in the US, the briefer our sense of history as much more than an abstraction of something left behind somewhere else. A lack of living history, of being surrounded by those who’ve gone before (some winning, many not winning) may be what gives us an inflated sense of destiny, like a teenager who sees only a future as a rock star ahead of them when they pick up their first guitar and who can’t be bothered to learn more than the chords of their current favorite songs.

    And as hard fought as democracy has been here in the US, it was also the first step we took as a nation. Everything prior to the French-Indian Wars is buried in a sort of primordial soup of witch-hunts and Indian killing that we’d rather not discuss. In England, this period is just short of current events. You can see the change from one-thousand years of feudal clashes to the rise of democracy in the stones and monuments, and there’s something to that, I think. We’re a blip on the continuum, it seems to say, and what we do while we’re here is important, but it will also pass, and those who are remembered are remembered as either good or terrible souls, and history will look back on you with an audio tour that will speak frankly about your deeds as people walk on your grave.

    Very interesting.

FDA Convenes Expert Panel to Consider Food Dye-ADHD Link

Last week, a Food and Drug Administration advisory panel composed of doctors, scientists, and consumer representatives spent two days reviewing evidence that purportedly shows a link between synthetic food colorings and ADHD, or hyperactivity, in kids. Artificial dyes are added to many familiar snack and junk foods – staples of the modern diet. This alleged link has been the subject of ongoing debate for decades, pitting the food industry against parents, public watchdog groups and academics who have demanded a closer look at food additives.

Businessweek reports that the FDA believes there is not enough evidence at this point to definitively conclude whether food dyes contribute to ADHD. The panel’s task thus was not to consider imposition of a ban on the additives, but rather to consider whether foods should require warning labels or whether more research should be done. Well, the panel has spoken. CBS News reports that although the panel recommended that the FDA further study the possible link, it voted 8-6 that warning labels are not necessary. There is not enough evidence at this point, according to the panel, to show any link. As it stands, packages must list the food colorings on its labeling, but no warnings about a potential link to hyperactivity are required.

Interestingly, across the ocean, where this issue is already “old news,” the European Food Safety Authority has already mandated that foods with color additives contain warning labels for consumers. Here at least, additional regulation may be on the horizon, but not soon. One last thought: Perhaps it’s not the color additives that instigate the alleged behavioral problems, but the overall quality of the snack and junk foods, their sugar content, or even the lifestyle choices of the families that purchase said food in order to appease the sweet teeth of their children.

CPSC: Beware the Dangers of Walking on Water

We here at Abnormal Use work hard to maintain our “street-cred.” We tweet. We use Foursquare. We go to concerts, preferably before you have heard of the band that we are going to see. We watch foreign films that are later (and regrettably) adapted by Hollywood, and we snarl in disdain when anyone mentions the subsequent remakes. However, despite our great efforts to remain hip and relevant, one fad has eluded us, and it was the federal government, of all things, that alerted us to its existence. Yes, the Consumer Product Safety Commission (CPSC) recently informed us of something called water walking. Who knew? Certainly not us!

According to this Fox News report, this new trend can be witnessed at amusement parks and carnivals. Water walking is a new recreational activity where individuals roll across the water while encapsulated in large, airtight, plastic balls. While this activity may be entertaining, it doesn’t quite rise to the level of “miraculous,” like that of a certain Biblical figure. Recently, the CPSC warned of the dangers associated with water walking, namely the potential for suffocation. Because the water balls are airtight, the CPSC advises that there is an inadequate air supply within the enclosed spheres required for the activity. In addition, the CPSC expressed concern over the lack of an emergency exit in the event an encapsulated individual becomes distressed. Two incidents of physical injury, both involving children, have already been reported.

It stands to reason that an airtight, plastic ball does not have a limitless supply of oxygen. The CPSC claims that suffocation can occur inside the balls in just a few minutes. In an interview with the Chicago Tribune, Charles Jones, who claims to have invented the water sphere, disagrees. According to Jones, each 6 1/2 foot water ball contains 90-minutes worth of oxygen. Without empirical evidence as to the oxygen supply, we cannot validate either claim. However, with only two reported incidents despite the numerous participants, it is difficult to envision a scenario where a water walker’s oxygen supply is actually depleted in a matter of minutes. But, hey, don’t ask us; we just heard about water walking the other day, so what do we know?

While the CPSC’s investigation into the safety of water walking continues, they have not resorted to a draconian ban of the water spheres. The CPSC report is a warning. It is merely a lesson that, despite how much fun walking on water may be, the oxygen supply inside your vehicle will eventually be exhausted. If you really want to walk on water without the fear of suffocation, we here at Abnormal Use recommend you start studying the anatomy of the basilisk (aka “Jesus Lizard”). In the meantime, enjoy your rides – albeit short ones – inside the water balls.

Abbott Labs Wins Motion to Dismiss

Where have we gone so wrong, America? Our pioneer forefathers are rolling in their graves. Whereas they endured disease, famine, and early death, we spit in their faces, enjoying our iPhones, antibiotics, and frivolous lawsuits. Some measure of order was restored in O’Neil v. Abbott Laboratories, Inc., No. 11-11, 2011 WL 902427 (E.D. La. March 11, 2011), when the court dismissed a complaint alleging infant injury from beetle parts allegedly present in Similac, which you may remember from here. Put simply, there may have been some ground up warehouse beetle in 0.2% in a particular lot of infant formula. No big deal. Even the FDA says that there is no immediate health risk just a chance of GI irritation.

Plaintiffs presented a putative class action based on the fact that their child suffered diarrhea and diaper rash due to consumption of Similac. Do you know what a pioneer would call a day in which he had to face only diarrhea and diaper rash? An outstanding day. If I told my mother that I found a bug in my food, do you know what she would call it? Protein. Oh, America, we have become a nation of wimps.

The court saw this putative class action for what it was, and used Iqbal to dismiss the action. Noting that infants often suffer diarrhea and diaper rash for “non-entomological reasons,” the court subtly chastised the plaintiffs for bringing a negligence-styled products liability action, when negligence is not available in the Louisiana Products Liability Act against manufacturers. Nevertheless, the court afforded the plaintiffs a chance to amend, and even spelled out the four elements that a plaintiff’s complaint must satisfy on its face.

Sure, it may be discomforting to imagine a baby consuming a little warehouse beetle. But babies lick the floor and eat other disgusting things. I’m sure that these concerned parents who think that their kid may have eaten a little bug would not self-report if they found their child chewing on a shoelace that may have touched a public restroom floor or other germ-infested surface. Unfortunately, this case will be refiled in a style that survives the motion to dismiss, and you and I will get the class action settlement notice by mail or email a year from now. Millions of dollars wasted to litigate some GI problems. Oh, America, what have we become?

Abnormal Interviews: Brian Dale Allen Strouse of The Lawsuits, A Philadelphia Band

Today, Abnormal Use once again continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and makers of legal themed popular culture. For the latest installment, we turn to Brian Dale Allen Strouse, a vocalist and guitarist of the Philadelphia based band, The Lawsuits. We’re fascinated with that band’s decision to name itself after the chief component of litigation. Strouse was kind enough to submit to a brief interview with Abnormal Use about his band’s music and name.

1) How did you decide to call yourselves The Lawsuits?

We decided on the name The Lawsuits because originally we were called The Mondays. . . . [T]here was a band called The Mondays from New York (or New Jersey), and they had [an] interest in playing our favorite bar where we got our start (John and Peter’s, New Hope, PA). We called to confirm a date for a show we had booked, and the girl called me Rick or James or Robert or Zimmy, and I said, “Excuse me?” Turns out, the bar booked The Mondays by accident, when they were intending to book THE MONDAYS. We thought it’d be clever to change our name to The Lawsuits, as we were in a situation where legal matters possibly could have been taken. Plus, two of my brothers are lawyers, and it wasn’t already a band name.

2) What has been the reaction to that choice of name?

The reaction has been mixed. The name personally has grown on me and the other members, but believe me, we’ve had our fair share of people claiming we can do better, or the name “turns them off.” I like that, though. If I can bring out an emotion of dislike, then at least I’m getting something in return from the audience. They don’t like the band name, but they like the band? Even better. Anything to position yourself strategically, placing yourself (in this case, the band) in a situation where, from the moment we walk into the venue, we’re at a disadvantage. It’s the Rudy factor, the underdog story. It’s true art. We’re trying to infect the audience, not so much live, but more so with the recorded music. And once someone is infected, (Leo Tolstoy would agree) they can’t not get “it.” It’s real, it’s honest, it’s wholly human. Some songs take two years to finish, some take two minutes, but the bottom line is this: Regardless of the name itself, once someone really gives the music a shot, and if they’re capable of liking the music (can’t deny preferences and tastes), they will see that there is something bright and strangely refreshing going on in Philadelphia.

3) How would you describe your music?

We tend to describe our music as folk-rock-blues.

4) What do you think is the biggest challenge facing musicians in 2011?

The biggest challenge that musicians face in the year 2011 is the fact the market flooded, and there are only a handful of boats floating around. There are so many musicians, and so many outlets musicians can use to promote their music. Glenn Morrow, the owner of Bar/None Records in Weehawken New Jersey did an interview . . . [in which] he said something like this, “The modern day label’s job is to weed through all the bands out there and find that gem.” Seems to be that labels now-a-days are much more cautious with their time, energy, and money. I suppose they must be. It is a business. Labels aren’t everything, though, when we dissect the idea of “what it takes to make it” or “What’s standing in my way between me and my goal?” or “What’s my biggest challenge?”, the answer is “What is it?” or “What’s your goal, really?” or “Biggest challenge, in what sense?” Ideally, I’d have tons of money, time, energy, contacts, oh, and talent, and then I’d simply combine all of that together in a large saucepan over medium heat and just sit back. However, the reality of it is this: The average musician has a finite amount of money, time, energy, contacts, and talent. They must rely on the “unexplainable” [and] “unteachable” things like luck and a workhorse attitude. In short, the biggest challenge facing musicians in 2011 is the face they see in the mirror. Even though the market is flooded and labels aren’t biting, almost anything is possible with belief.

5) As musicians, what do you think of the process of working with lawyers in the music industry?

As a self-proclaimed musician, I don’t think much about the process of working with an entertainment lawyer because I have yet to do so. I believe they are an important piece of the puzzle. They are, like the a-typical musician, “thinkers”- modern day philosophers in a sense. Also, everything now-a-days comes with a contract, and lawyers are expected to excel at deciphering the fine print. They are expected to protect the best interests of their client and advise their clients on which path to take.

BONUS QUESTION: What is your favorite song about the law or legal themes?

The Bobby Fuller Four’s “I Fought The Law” is a good one. The Clash did a great version of it, as well. The Dead Kennedy’s also did a version. I believe their’s goes, “I fought the law, and I won.”

Here’s a few videos of the band we found on YouTube (including one tune called “Appeal #46″ and a cover of The Beatles’ “Oh, Darling”:

BIOGRAPHY: The Pennsylvania band The Lawsuits formed in 2008 as a four piece rock band, morphed into a ten piece band in 2009, and fine tuned the sound back to a four piece the same year. At present, the Lawsuits are:

Brian Dale Allen Strouse – Vocals, Guitar
Josh Friedman – Drums
Brendan Cunningham – Bass, Vocals
Vanessa Winters – Vocals