The Hazards of Molten Glass May Not Be Obvious in Washington

Recently, in Kirkland v. Emhart Glass S.A.,  — F. Supp. 2d —-, No. C10-5125BHS, 2011 WL 1435454 (W.D. Wash. April 14, 2011), the District Court for the Western District of Washington denied a manufacturer’s motion for summary judgment on an injured glass worker’s claim under the Washington Product Liability Act (“WPLA”).  The plaintiff, injured by molten glass while operating an Individual Section Machine, alleged that the machine lacked adequate warnings and failed to protect workers from injury resulting from “contact with red hot bottles on the conveyor while performing mold changes.”  The manufacturer’s defense?  The plaintiff’s injuries were not proximately caused by its failure to warn because the dangers of molten glass were open and obvious.  Sounds reasonable.  After all, in order for glass to be “molten,” it must be exceedingly hot.  We doubt the plaintiff was wearing his winter coat while operating the machine.

However, the Court wasn’t buying it.

Sometimes the difference between winning and losing an argument isn’t the facts, but rather how the argument is framed. In opposition to the manufacturer’s motion, the plaintiff argued that its failure to warn claim was based on the manufacturer’s failure to provide adequate instructions to the plant operator

[a]bout how to reduce or eliminate the known hazard of workers coming into contact with extremely hot bottles on the conveyor when working over the conveyor, despite expressly acknowledging the need for such instructions in [their] Technical Report regarding Individual Section machines. (emphasis added)

See what they did there?  They incorporated the open and obvious nature of the molten glass right into their argument.  I’ll take your “open and obvious” and raise you one “failure to provide instructions.”  The dangers remain open and obvious, but apparently, it’s the manufacturer’s fault for not providing a remedy.  To support his argument, the plaintiff produced evidence that the plant operator installed a protective shield following the plaintiff’s accident.  (Don’t worry, the Ninth Circuit previously held Federal Rule of Evidence 407 only applies to a defendant‘s remedial measures).

The manufacturer was right.  The dangers of molten glass are open and obvious.  However, sometimes being right just isn’t enough.

New Jersey v. Henderson: A Self-Critical Look at the American Judicial System

Late last week, the New Jersey Supreme Court introduced a revised standard for the admissibility of eyewitness identifications in criminal prosecutions. State v. Henderson, — A. 3d —-, 2011 WL 3715028 (N.J. Aug. 24, 2011). We here at Abnormal Use have not forgotten that we are products liability blawg. But the New Jersey court’s opinion deserves our consideration because it shakes the bedrock of the American judicial system.

Science occupies a strange place in American culture. By and large, Americans love science when the fruit of scientific endeavors yields technology that accommodates our lives. No one seriously questions the virtue of science insofar as we have acquired nearly absolute advantages in communications, defense, and health care. By contrast, Americans tend to hate science when we are forced to confront our personal or social beliefs. The most apparent of these tensions is in the conflict between science and religion. In the battle for supremacy, the ardent supporters of either science or religion typically charge their rhetoric with fire, brimstone, and fervor that would inspire even the most Southern charismatic preachers. In these debates, there is little room for rational discourse. Between these warring camps is the storied silent majority of Americans, not sure of what to think, who to trust, or what to believe.

We say all this to honor the intellectual courage and integrity of the New Jersey Supreme Court. Its opinion in Henderson will likely open a new front in the war on science; this time, a civil war within the American legal system. The Henderson opinion is 134 pages, and many of those pages detail scientific studies that question the usefulness of one of America’s most sacred institutions: the trial by jury. Make no mistake, New Jersey is not advocating that we abolish the jury trial; far from. But what New Jersey has done is to take the lead in forcing American legal scholars and professionals to ask ourselves, is there a better way? For decades, this question has been presented outside the formal structures of America’s governing institutions. New Jersey could have left it there. It chose not to; and now, Americans must examine our personal beliefs about jury trials in light of statistics and data. This will not be an easy self-critical analysis; in fact, it could very likely become a polarizing political issue. But if the effectiveness of the jury trial is questionable, as scientific research suggests, then better we address the matter sooner rather than later.

The narrow question in Henderson is whether there were appropriate safeguards in New Jersey to ensure that eyewitness identifications of criminal defendants had been validly obtained. As a matter of constitutional law, the United States Supreme Court had previously established a set of five factors to guide judges in passing upon the admissibility of eyewitness identifications. Manson v. Brathwaite, 432 U.S. 98 (1977). By subsequent opinion, New Jersey followed the United States Supreme Court’s lead. New Jersey v. Madison, 109 N.J. 223 (1988). These five factors were each intended to guage the subjective perceptions of eyewitnesses and to determine whether such witnesses could reasonably have made later identifications of criminal suspects (e.g., as from police line-ups). These factors were to be balanced against any evidence that the witness’s identification had been corrupted, inadvertently or otherwise, by suggestive comments or conduct by the police or other third-parties. Ultimately, the court used Henderson to refine this process and to clarify additional procedural steps.

To some extent, we are surprised that the court will continue to allow eyewitness identifications to be admissible at trial. In its opinion, the court states that “it has been estimated that approximately 7500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications.” Furthermore, “of all investigative procedures employed by police in criminal cases, probably none is less reliable than the eyewitness identification.” The opinion cites the International Association of Chiefs of Police as the source of the preceding quote. If eyewitness identifications are not reliable, and they are actively causing wrongful convictions, we have to wonder whether they should be admissible at all. Perhaps it would be best to let eyewitness identifications go the way of polygraphs and confine such identifications to investigative tools.

But this is not why Henderson is important. More broadly, the court used Henderson to explore the scientific data and research regarding witness perception and memory. What it found was troubling. If there is any theme throughout the opinion, it is the court’s recurring statement that “memory is malleable.” What does this mean? To be blunt, it means that witnesses are generally not sure of what they saw, and they become less sure as time goes by.

This isn’t necessarily surprising. But consider this: the court relied on live-data studies from Sacramento and London for eyewitness identifications. The Sacramento studies involved roughly 500 people who were eyewitnesses to criminal conduct and participated in a later identification. Of the 500, 33 percent could not make an identification. Of the ones who did make an identification, 24 percent identified the “filler” (an innocent person in a police line-up). Of the ones who correctly identified the suspect, there was no data on whether the suspect was actually guilty of the crime committed. The London studies involved more than 2100 people. Of those, 41 percent could not make an identification. And of the ones who made an identification, 33 percent identified the filler.

The court also relied on controlled studies. In one study, the researchers sent an individual to have conversations of a few minutes each with store clerks. Five hundred clerks were involved, and they were not advised up front that they were participating in a study. Between two and 24 hours later, an undercover researcher would talk with the clerk about the individual they had had a conversation with and ask the clerk to pick the person out of a line-up. Seventeen percent of clerks could not identify the individual; of the ones who made an identification, 41 percent picked the filler. Perhaps more troubling, in some cases, the line-ups shown to clerks did not contain the individual they had talked with. In those cases, 36 percent of clerks still made an identification.

These problems with perception and memory are not limited to police line-ups. Research suggests they are more pervasive. In another experiment cited by the court, researchers asked participants in their study to watch a video of a car driving along a country road. The participants were first asked to estimate the speed of the vehicle. Then they were asked if they remembered seeing a barn in the video. There was no barn, but 17 percent of participants remembered seeing one.

The court also cited data from research that, not surprisingly, demonstrated how the way in which questions were asked-as in, the difference in the choice of even one word-substantially affected each witness’s perception and memory of the same event. When we apply the results of this research to the process of our judicial system, we have good reason to be concerned. Fact witnesses form the basis of any claim. But this research suggests that fact witnesses do not necessarily accurately perceive the facts they witness; and even if they do, over time, the recollection of the facts they perceived (as distinguished from the facts that happened) breaks down. Memory is malleable.

But wait; there’s more. Research further demonstrates that fact witnesses are not the only ones who experience misperception and corrupted memory. Jurors do, too. In another experiment cited by the court, researchers found that jurors (who obviously hear the same information) have different perceptions of the information heard, which leads them to have different recollections of the same set of facts.

To recap, let’s assume that an event happens in front of several witnesses. Research suggests that each of those witnesses will perceive different “facts” about that event. At trial, months or years after the event, each witness’s recollection of the “facts” perceived about the event will have changed. Each member of the jury will perceive different information about the testimony presented, and even that information will have changed by the time the jury gets to deliberation.

You must be asking yourselves by now whether there is any good news to come out of this. There’s not. It actually gets worse. If you’re wondering what the most important aspect of a juror’s decision-making process is, here’s your answer: research shows that the single most important factor for any given juror’s decision-making is whether he or she perceived a witness as “confident.” Assuming that jurors are trying to determine the truth of a matter, research demonstrates that jurors equate truthfulness with confidence. Therefore, juries are not deciding facts so much as they are deciding which witnesses are more confidently reporting the facts they perceived (whether those facts actually happened or not).

All this suggests that we may have something very, very wrong with our judicial system. Churchill famously quipped that democracy is the worst form of government except all the others that have been tried. Perhaps the same can be said about the American judicial system and the notion of trial by jury. However, we have to believe that the New Jersey Supreme Court intended its opinion in Henderson to spark a debate about how to craft a more perfect legal system. Let’s pray that the same intellectual courage and integrity that drove the court’s opinion will characterize the discussions that follow.

Montana Enhanced Injury Case Places Evidence of Seat Belt Usage Directly at Issue

In an enhanced or second injury case, the plaintiff claims that although the initial incident or accident caused him to suffer only minor injuries, the defective design and/or manufacture of a particular product caused him to suffer additional injuries.  The theory is that but for the negligent design or manufacture, the plaintiff would have walked away with only minor injuries.

This was the plaintiff’s theory of the underlying case at issue in Stokes v. The Montana Thirteenth Judicial District Court, — P.3d —-, 2011 WL 3304510 (Mont. August 1, 2011).  A man named Peter Carter was killed after being involved in a car accident during which the vehicle he was driving rolled over.  Plaintiff Stokes filed a wrongful death and survival action on behalf of Carter’s estate against the car’s manufacturer (Ford), the rental car agency that rented Carter the vehicle (Overland West, Inc.) and the driver of the other car involved in the accident (Todd Durham).   Durham admitted that he caused the initial accident.  Stokes’ theory against the other two defendants was that “the initial impact caused only minor injuries, but the seat belt in the vehicle slackened and spooled out during the rollover, allowing Carter to be partially ejected from the vehicle and causing his fatal head injury.”  The case was brought on theories of negligence and strict liability against both defendants.

The fact that the plaintiff pleaded both negligence and strict liability in the case was problematic for the trial court, which didn’t think a jury was smart enough to distinguish between the two of them.  In Montana, evidence of seat belt use (or lack thereof) is admissible in product liability claims, but not in negligence claims.  So, “The court thus informed Stokes that if he planned on using evidence of seat belt use or non-use in his strict liability claims against Ford and Overland, he would be required to drop his negligence claims against all three defendants.”

So much for alternative pleading in Montana.

Stokes then petitioned the Montana Supreme Court for supervisory control, based on the fact that, basically, he should be permitted to assert both causes of action.  First, the Court considered whether or not the case was appropriate for the exercise of supervisory control.  Deciding in the affirmative, the Court then turned to the issue of whether evidence of seat belt use was precluded in either the strict liability or product liability cause of action.

The applicable Montana statute, The Montana Seat Belt Use Act, states that evidence of compliance or non-compliance with the mandatory seat belt law is not admissible “in any civil action for personal injury or property damage resulting from the use or operation of a motor vehicle,” and failure to comply with the seat belt use law does not constitute negligence.

Ford contended that all evidence of such use or non-use should be excluded, or that at the very least, such evidence should be inadmissible in the negligence cause of action.  Stokes had a different argument, modeled on the theories underlying negligence and product liability principles.  Citing a prior case, he argued that the statute “bars proof of seat belts in a claim for negligence,” where the focus is on the parties’ conduct, but “does not apply to product liability claims,” where the focus is on the condition of the product.

An interesting argument in most cases.  In this case, however, as the Court pointed out, the seat belt was placed directly at issue by the plaintiff’s claim that the seat belt system was defective, and caused the enhanced injury of the decedent after the initial accident.

With this in mind, the Montana Supreme Court held that evidence relating to Carter’s use of a seat belt was not prohibited under either cause of action, in the context of its bearing on the condition of the seat belt restraint system.  The Court did hold, however, that a limiting instruction for the jury was appropriate “to ensure the evidence is used only for this purpose.”

Friday Links

Harvey Dent, also known as Two Face, is a Batman villain but also Gotham City’s district attorney. Wrap your head around that. You may recall that the character was played by Billy Dee Williams in 1989′s Batman, Tommy Lee Jones in the 1995′s lesser sequel Batman Forever, and more recently, Aaron Eckhart in 2008′s excellent The Dark Knight. Above you can see him through in his office on the cover of Two-Face: Year One, published not so long ago in 2008. What does it say about Gotham City that one of Batman’s fiercest foes is also the city’s chief prosecutor? You’d think the Gotham City Bar Association would have taken some sort of action against Mr. Dent by now, no?

Michael Wells, Jr. of the NC Law Blog advises us of the “10 Things You Should Know About The Law and Social Media.”  No mention of Friendster, though. Now, compare that list to “The Seven Sins of Social Media” by Josh Camson over at Lawyerist. There sure are a lot of lists out there about lawyers using social media.  Our thoughts? Be yourself to keep things interesting and follow our profession’s ethical rules just like you would in any other endeavor.  The rest should come naturally.  But maybe someday we’ll make a list, too.

If you have friends or children starting college this month, you might direct them to the rather amusing blog post, “The League’s Guide for Incoming Freshman,” written by friend of the blog Ryan Steans of The Signal Watch.

Yes, in case you’re wondering, we here at Abnormal Use did feel the earthquake at our home office here in Greenville, South Carolina.  Apparently, at least some folks in our Columbia and Charlotte offices also felt some type of minor tremor. It’s a bit disconcerting to feel one’s building vibrating, even slightly, when one finds him or herself on the 14th floor of that building. Yikes.

Connecticut Affirms the Malfunction Theory: Res Ipsa Creeps Into Products Litigation

After teaching the doctrine of res ipsa loquitur, my Torts professor immediately warned the class that the doctrine was not to be used as an answer on our final exam.  Why?  Well, according to the professor, answering a question with “the thing speaks for itself” is not a good way to get in the good graces with the faculty.  Nevertheless, plaintiffs may still invoke res ipsa to suggest negligent conduct without direct evidence of a specific wrongful act.  Of course, we here at Abnormal Use abhor res ipsa and its circumstantial implications.  Despite our concerns, though, the Supreme Court of Connecticut has reminded us of the doctrine’s long-lost cousin – the malfunction theory.  See Metropolitan Prop. & Cas. Ins. Co. v. Deere & Co., SC 18341 (Ct. August 16, 2011).

At issue in that case was a Connecticut family’s home destroyed by fire.  On the day of the fire, a resident of the home attempted to mow the lawn with a 5-year old John Deere lawn tractor but was unable to finish because the engine was “running roughly.”  The woman returned the mower to the garage and noticed a “different kind of smell.”  Ninety minutes later, the home caught fire.  A fire marshal investigation could not determine the cause or origin of the fire but identified the tractor as a “significant factor.”  In addition, an insurance investigator concluded that the tractor was the specific point of origin.  Neither the marshall nor the investigator disassembled the tractor.  Several months later, an expert examined the mower and ruled out all possible causes of origin within the tractor except for the electrical system, which was 70 percent destroyed.  The expert examined the remaining 30 percent and found no indication of side effects.  The family’s insurer settled the property damage claim and, through its subrogation rights, brought a products liability action against Deere.  The plaintiff alleged the tractor’s electrical system was in defective condition when it left Deere’s control and that this defect caused the fire.  The jury returned a verdict in favor of the plaintiff in the amount of $749,642.69.  Deere appealed, contending that there was insufficient evidence to support the verdict.

The Court agreed that the plaintiff’s evidence was insufficient to establish liability.  Significantly, the Court upheld the malfunction theory of products liability asserted by the plaintiff.  The malfunction theory permits a plaintiff to establish a prima facie products claim on the basis of circumstantial evidence when direct evidence is unavailable.  The Court held that a jury may rely on circumstantial evidence to infer that a product was defective at the time it left the manufacturer’s control if evidence reveals:

(1) the incident that caused the plaintiff’s harm was of a kind that ordinarily does not occur in the absence of a product defect, and

(2) any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller.

While we must give credit to the Court for considering the inconclusiveness of the expert testimony and the age of the mower in reversing the trial court, we must question the affirmation of the malfunction theory.  As much as we loathe res ipsa, at least that doctrine requires the defendant to have control of the damage-causing instrumentality.  With a liberal application of the malfunction theory, manufacturers could find themselves lifetime insurers of products long outside the grasp of their control.

We do not think requiring plaintiffs to present direct evidence of a product defect is unfair in proving a product defect claim.  It just seems logical.  Think a court should be persuaded by our argument that Titleist makes a defective driver every time we slice a drive into the woods?  Of course not, unless we let the thing speak for itself.

Google Crashes – Literally (More on the Driverless Car Dilemma)

Back in October, we blogged about Google’s new driverless car and used that new technology as a starting point to ask some poignant questions about how the law has failed, in general, to keep pace with the current speed of innovation.  Our specific question on that date was as follows:

As both the ABA Journal and The New York Times point out, the obvious question is this: Who is liable for an accident caused by a car that is driving itself – the person sitting in the driver’s seat of the car who isn’t actually driving, or the manufacturer of the driverless car itself?

At the time, there hadn’t yet been an accident caused by the software.  Well, now we have one.  As recently reported by friend of the blog Alan Crede of the Boston Personal Injury Lawyer Blog, Google’s brainchild caused an accident.  (For the record, Google’s position is that a human driver who overrode the software caused the accident).  Just as we did in our prior post, Crede used the Google Car opportunity to pontificate about larger legal questions facing the advent of fast-moving technologies.  We were, however, pleasantly surprised to see that Crede does not take the typical plaintiff’s attorney-approach to the issue, but rather argued that companies should not fear developing such cutting-edge technologies because of fears of liability.  Rather, Crede advocated for the imposition of liability on the owner or passive “driver” of the car itself, not the manufacturer.  In so doing, he argued:

Since, presumably, most accidents involving robot-driven vehicles will be due to some software error, perhaps the victims of robot car accidents will sue Google or other robot car manufacturers in product liability actions for selling defective products (defective software code). Such a system would insure that accident victims are compensated, but it would also mean that robot car manufacturers — the Googles, Fords and Toyotas of the world — would become the insurer of every car accident. Could any car manufacturer afford such a burden? Likely not.

It seems what we need therefore — in order to insure that the victims of robot-driven cars are compensated — is new legislation which would change the common law rules that govern car accidents. In particular, we need a system of compulsory auto insurance and a new legislatively-created rule that the owners of driverless cars are responsible for all accidents that they cause, regardless of whether they were piloting the car at the moment the accident occurred.

Such a change would replace our current negligence-based system of liability for car accidents with a strict liability regime that makes cars’ owners automatically liable for any damage caused by their cars, but it seems the only workable legal framework for a future of driverless cars.

Under the current legal regime, car manufacturers would have to insure every accident on their own, a burden that no company, even one as large as Google, can afford.

An interesting idea.  Thoughts?  Personally, I am not sure that this type of legislation is a good idea.  What happened to placing liability on the actual party at fault?  Ostensibly, the “driver” who is just sitting in the car isn’t at fault for the accident – maybe it was a software glitch that caused the accident.  Furthermore, who in their right mind would buy a car knowing that it would be their fault if the car causes an accident, even though they had no control over how it was designed?  Or am I sounding like a plaintiff’s attorney?  On second thought, don’t answer that last question.

Abnormal Interviews: Law Professor Tamara Piety

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to associate dean of faculty development and law professor Tamara Piety of the University of Tulsa in Tulsa, Oklahoma.  She teaches courses in Corporate Law, Civil Procedure, Evidence, and Scientific Evidence. Dean Piety also knows a thing or two about corporate speech.  Her new book, Brandishing The First Amendment, argues that commercial interests should not have free speech rights. It will be published this fall by the University of Michigan Press. The interview is as follows:

1.  You’ve written and taught a great deal about commercial speech (including a book to be published on the subject later this year). Although this is primarily a constitutional topic, what aspect of this issue do you believe that civil litigators should be aware of in their daily practice of representing corporate defendants?

In Brandishing the First Amendment, which is forthcoming from the University of Michigan Press, I discuss the rise of an aggressive use of the First Amendment to fend of regulation of various sorts, as well as its use as a defense to fraud claims like that in Kasky v. Nike. Obviously, in the wake of Citizens United and perhaps more significantly still for business, Sorrell v. IMS, commercial and corporate speech and the First Amendment will continue to be a hot topic at the level of strategic corporate policy. Raising the First Amendment has become a sort of portmanteau, all purpose, weapon against regulation. That said, I am not sure there is much that will touch civil litigators in their daily practice of representing corporate defendants. Although presumably there will be cases in which a First Amendment defense could be raised to some sort of mislabeling or false advertising claim, the ordinary product liability case will probably not be affected.

2.  You teach a course called “Scientific Evidence.” What is the most significant evidence opinion to come out in the last year? Why is it significant?

The most significant case to come out of the Supreme Court last year for purposes of my scientific evidence course (which will be renamed “Expert Evidence” for Spring 2012) is the Bullcoming v. New Mexico case involving the application of the Confrontation Clause to the admission of lab reports. A lab technician will no longer be able to testify to the results of an analysis from a report where he or she did not actually observe the test. Many believe this is likely to have very significant consequences for prosecutors and forensic testimony involving DNA, drug residue and other chemical analysis and similar lab tests or expert assessments. However, this case won’t have much significance for civil practitioners since the Confrontation Clause is only of interest in criminal cases.

3.  Some states, including South Carolina, have not adopted the federal Daubert standard. What challenges, if any, do such states face in light of their decision not to follow the federal approach?

I think there are always challenges when it seems that you are failing to follow “industry standard.” And to the extent many view Daubert that way I suppose those states (or their legislators) which have not adopted the Daubert test  may face some pressure to adopt the federal standard. But it is not universally popular. And so I think that pressure is misplaced. Daubert is no magic bullet for determining how to sort good expert evidence from bad. As Ramirez v. State from Florida illustrated a few years back, it is possible for a court which is supposedly following a Frye standard to apply the Daubert standard in everything but name. So what standard nominally controls isn’t as important as it may seem at first blush. In Ramirez, the Florida Supreme Court reversed for (I think for maybe the 4th time) a conviction involving expert testimony from a tool marks expert that linked marks in a homicide victim’s body to a particular serrated knife found in the defendant’s possession. The witness claimed his method led to a 100 percent level of confidence in the identification and that he could identify the defendant’s knife  to the exclusion of all other such knives in the world. This claim was probably not well founded from a scientific standpoint and he may have fared better if he had simply said he was “very sure” or “reasonably certain” or words to that effect instead of reaching for an improbably high number. The Florida Supreme Court essentially used a Daubert type analysis to hold that this sort of claim was scientifically suspect and thus ought to be have been excluded as unfairly prejudicial. The decision in this case illustrates why you need to be familiar with the basic framework of Daubert even if your jurisdiction uses a different test. Judges may want the questions the Daubert Court asked– was the finding published in a peer reviewed journal? Is there a known error rate?, etc. – to be answered regardless of the phrasing of the local rule. So I am inclined to think that decisions like Ramirez illustrate that it doesn’t matter so much which standard a state adopts. If the court you are facing is inclined to find the evidence you want to submit unusual and bizarre versus conventional and routine it will probably exclude it because a court can usually find a means of doing so. The doctrinal test has more influence on the form the argument takes than the substantive outcome. That is why I don’t think Daubert necessarily represents the best test or the “industry standard” with respect to expert testimony. I’m not sure there is a good way of solving this problem since the problem arises because lawyers are trained in every field that they need to evaluate and there is no way that they could be. It is a problem that defies a completely satisfactory solution. South Carolina’s may be as good as the federal approach.

4.  What do you think is the most misunderstood issue in the scientific evidence arena?  Why is it misunderstood?

This is a tough question because there is so much that is misunderstood! I guess if I had to pick one thing it is the feeling that there is a really clear division between “science” and other kinds of expertise. And this goes back to my answer to the last question. Lawyers are scientists but scientists also aren’t infallible and the line between “science” and other types of knowledge is not always clear-cut. There are a variety of ways to try to “prove” something. Some are more reliable than others. For example randomized, double blind trials produce more reliable results for the types of studies for which they are appropriate than many other types of research. But this sort of test is not available or appropriate for every question. Furthermore, probabilities and regression analysis tell you a great deal and will help clinicians make diagnoses, ones we want, for example, our doctors to rely on in many cases. However they cannot say for certain that any one instance of a particular substance caused a particular condition. Yet the courts often seem to require that degree of precision from experts. If they don’t get it they will exclude the testimony. I think that is a mistake, particularly since we routinely and unquestioningly admit testimony that has lower levels of reliability than many regression analyses (and a lot lower than we imagine!), such as eye witness testimony.  I think we ask scientific evidence to do more than it can in some circumstances when much of what we want to prove in a court of law–the facts about the occurrence or non-occurrence of some acts, or a particular state of mind– are often probably out of the reach of not just the legal system, but of human capacity.  I think maybe we seek this sort of certainty from the legal system because too much uncertainty is paralyzing. So having a basis for making a decision, even if it is not always accurate, is sometimes preferred to saying “I don’t know” or “we can’t decide.”  There isn’t much room for compromise verdicts in courts of law, even though jurors try to enter them all the time.  I think this impossibility of knowing all the facts is one of the attractions of strict liability – it allocates fault without having to delve into one of the most difficult areas to prove – intent. Yet, of course, if you are the defendant who feels wrongly burdened because you feel like you were doing the right thing and taking all reasonable precautions, it is probably not satisfactory to say to that defendant, “Well, society is better off if we don’t try to figure out your state of mind so be comforted that you are contributing to social stability.” You want the system to be fair to you. Everybody does.  Yet that is an elusive goal. And in many cases it may be an open question which system – fault-based or strict liability  –is better for society as a whole. Neither approach is going to be satisfactory in every case.

5.  Why do you believe there was a popular misunderstanding of the facts of the Stella Liebeck McDonald’s hot coffee case? In a comment to one of our earlier blog pieces, you noted that McDonald’s “escaped appropriate censure because of the campaign to lampoon the case.” What censure do you believe McDonald’s should have received, and why?

On the first part of your question, I think the opening interviews with people on the street in the movie Hot Coffee, as well as some of the materials on the web suggesting that the McDonald’s case was a paradigmatic “frivolous” lawsuit, combined with the reaction the film makers got when they told people the facts of the case, combine to suggest that; (a) most people, when they know the facts, don’t think it was a frivolous case and (b) that the perception that it was frivolous was nevertheless widespread.  To me that indicates there was a popular misunderstanding. The  movie reflects that McDonald’s employees and management were aware that the holding temperature wasn’t fit for human consumption and that there had been a number of incidents in which people had been injured. When you combine these facts with a refusal to pay Ms. Liebeck what appeared to be a relatively modest initial request, McDonald’s actions seems worthy of censure. In terms of what censure it deserves, I guess the movie itself constitutes the deserved criticism I had in mind, particularly if it is widely viewed. On a side note, the movie illustrates that sometimes it is better to advise the client to settle even a case the company thinks it can or should win rather than face this sort of bad publicity.  Of course, it is also the right thing to do if you are at fault. Another aside, it is unfortunate that sometimes the consequences of appropriate apologies overwhelm the ordinary human instinct to apologize in appropriate circumstances and sometimes discourage settlements.  On the other hand, the problem I referred to in your earlier questions about scientific evidence and our ability to figure out what the facts are, make it difficult for management to sort out the deserving from the undeserving plaintiffs. And I think defendants are often fearful of the specter of an endless parade of plaintiffs, or of setting themselves up as a deep pocket.  All I can say to that is that defendants (and their attorneys) just have to do the best they can in trying to sort those cases out. Attorneys (as you undoubtedly know) need to look at these cases from the perspective of plaintiffs and of prospective jurors and be able to anticipate how those jurors, or the public, will view these facts and advise their clients accordingly. And clients need to understand that attorneys who advice them that way are doing their job and trying to prevent disasters down the road by offering reliable advice about how to sort out the cases that ought to be settled from those that ought to be contested, not just refusing to take their “side.” Clients should not want a “yes man” who is afraid to tell them which strategies will likely work and which won’t. I don’t know if McDonald’s got good advice in the Liebeck case, but it did it appears that it didn’t or it wasn’t followed. Of course, my observation on that point may be simply a result of hindsight bias – everything looks more obvious in retrospect!

BONUS QUESTION: What do you think is the best depiction in popular culture of corporate speech or scientific evidence issues?

On evidence generally it is (no kidding) My Cousin Vinny, although that now qualifies as an “old movie” and maybe not part of “popular” culture any more. A more recent one that touches on the difficulties of proving something is Doubt with Meryl Streep and Phillip Seymour Hoffman.  On corporate speech, I think the best is a documentary called The Corporation.  But I haven’t seen everything that is out there, so there may be better examples. I would be interested in hearing from others what they think are the best examples.

BIOGRAPHY: Tamara Piety is the Associate Dean for Faculty Development and Associate Professor of Law at the University of Tulsa College of Law. She is a nationally recognized legal scholar writing about the legal treatment of commercial and corporate speech. Dean Piety’s book, Brandishing the First Amendment, is forthcoming this fall from University of Michigan Press.  Dean Piety is an experienced former litigator who practiced law in South Florida for several years focusing on complex commercial fraud and criminal defense. She teaches a range of litigation-related subjects including, Evidence, Scientific Evidence and Law and Mind Sciences. Piety earned her bachelor’s degree in economics from Florida International University in 1985; her J.D., magna cum laude, from the University of Miami School of Law in 1991 where she was an Article and Comments Editor for the University of Miami Law Review and Order of the Coif; and her LL.M. from Harvard Law School in 2000 where she was the Executive Editor of the Harvard Women’s Law Journal. She served as judicial clerk for the Honorable Peter T. Fay on the United States Court of Appeals for the Eleventh Circuit and as an interim clerk for the Honorable Irving L. Goldberg on the United States Court of Appeals for the Fifth Circuit.

ABA Best Blawgs 2011 – Would You Nominate Us?

We’ve been doing this blogging thing for about twenty months now, and we’ve enjoyed bringing you legal news and irreverent commentary on products liability issues. One of our proudest moments here at Abnormal Use was when we were included on the ABA Journal‘s annual list of the 100 best legal blogs last year. We very much appreciated the support of our readers who nominated us for inclusion on that list. Guess what?  The ABA Journal is now seeking nominations for this year’s list.  We humbly request that you, our dear readers, nominate us for the honor again this year.

You can do so by clicking here and briefly completing the very short nomination form. It should take only a few short moments to complete.

Be sure to tell them what you’ve liked about Abnormal Use this year (as the folks at the ABA Journal are looking for specifics). So far, we’ve had a pretty good year, if we do say so ourselves. We’ve continued to bring you the latest state and federal legal news and case commentaries in the products liability field.  We have interviewed a number of intriguing law professors, practitioners, and Hollywood celebrities (including the writers and producer of the 1991 film Class Action and even Mark-Paul Gosselaar and Breckin Meyer of TNT’s “Franklin & Bash” TV show). We offered some critical commentary on Hot Coffee, the would-be documentary film by plaintiffs attorney Susan Saladoff, which earned us shout-outs from both The New York Times and National Public Radio.  In March, Scientific American picked up a story we did on a series of predictions made in 1931 about the year 2011. We even came up with a comprehensive list of songs about attorneys and judges and authored what we thought was a pretty darn funny April Fool’s Day joke on the Star Wars prequels.  And, of course, each Friday, we have brought you a different legal themed comic book cover (which, you might not realize, is actually pretty difficult, as finding all of those legal comic book covers is sometimes like finding a needle in a haystack). We’ve even set up a page on Facebook. All of this we have enjoyed doing immensely.  Throughout this enterprise, we have also made a number of good friends in the legal blogosphere.

Which brings us back to our humble request for a nomination. Take a look at the nominating form and the ABA Journal‘s brief guidelines for submission.  If you enjoy the commentary we offer here and would like to support us in this endeavor, we would very much appreciate it. Nominations will be accepted until September 9.

Friday Links

Above is the cover of The Perry Mason Mystery Magazine #2, published way back in 1964. We’re not entirely certain what is occurring on the cover of this issue, but we suspect there might be some questionable “lawyer as witness” issues presented to the court. In fact, if that’s Perry Mason kneeling over the body before the police arrive, then might Mason himself be a suspect? Wouldn’t that be the perfect crime? No one would suspect him, primarily because he’s Perry Mason! We’re just supposed to take his word that he’s an innocent passer-by? (See our previous mentions of Perry Mason here and here).

University of St. Thomas law professor Mark Osler of the Osler’s Razor blog digresses from the discussion of law to talk about something far more important: Bruce Springsteen and Patti Smith and their “Because The Night” collaboration. (In other Springsteen news, a fan recently paid $611 for the first issue of the Springsteen fanzine Backstreets, first published in 1980. Finally, in yet another Springsteen news story this week, it appears that Springsteen and Billy Joel may be able to reclaim ownership of some of their songs from the 1970s.).

Back in July of 2010, we remarked upon the Vampire Weekend lawsuit. Remember that? The band’s second album, Contra,  featured a 1983 photograph of a very preppie model on its cover, but apparently, there was an issue of whether the model ever signed a release for that photograph. Litigation ensued.  Well, according to reports, the band settled out of the case, although the band still maintains a claim against the photographer in the suit. We bet they won’t be using a cover model on their third LP.

In case you were in doubt,  you cannot win punitive damages against a dead person in Iowa.

If you like old photographs of forgotten places and times, you’ll love the Shorpy photoblog, which posts high resolution photographs, usually 100 years old or older. Most of the time, there are lots of photographs of New York City and Washington, D.C. and place like that. However, this past week, the site posted a photograph taken in February 1913 in Bluffton, South Carolina, just a few hours from our Columbia office. Take a look here to see what it was like to toil in the oyster business in South Carolina 98 years ago.

The bloggers at The Pop Tort are taking a vacation for the remainder of the summer. Alas.

Kudos to our own Luanne Runge, who was recently elected as the 2012 Chair-elect of the Greenville Chamber of Commerce. She will serve as Chair in 2013. Congratulations also to our own John T. Lay, Jr. (of our new Columbia office, in fact), who was recently appointed Chair of the Business Litigation Committee for the International Association of Defense Counsel. For more information, please see here.

Don’t forget! You can now access Abnormal Use on Facebook.  To do so, click here.

of Luanne Runge, a shareholder in the law firm Gallivan White & Boyd, P.A., as 2012 Chair-elect of the Greenville Chamber by the organization’s Board of Directors. She will serve as Chair in 2013

Attorneys and Google+

Attorneys, save for a small cadre of early adopters, are typically slow to adapt to new technology and social medial utilities.  Accordingly, it may be some time before many practicing attorneys make their way to – or even hear of – Google+ (although invites are already being called “the hottest ticket in law firm marketing”).  You may have seen some of the buzz regarding Google+, and perhaps you were initially dismissive in light of the complexities and/or confusing qualities of Google’s other recent social media platforms, such as Google Wave or Google Buzz (which turned out to be quite a dud).  However, Google+ is the search engine giant’s attempt to compete directly with Facebook by establishing its own social network, but it’s also more than that.  Already, a number of attorneys – mainly those interested in legal technology, social media, or the next big thing – have migrated to Google+, turning it into both an interesting place for the discussion of legal technology and an echo chamber of sorts. In fact, the biggest challenge at this point seems to be convincing potential users to migrate to yet another social media platform.

If you use Facebook, Google+ will seem familiar to you, although it appears to be a bit less aesthetically busy.  The chief difference between Facebook and Google+ is that Google+ starts with the assumption that users have different sets of friends with whom the user will want to share different pieces of information.  In essence, it acknowledges that most true of truisms:  we all live in many separate worlds, and we don’t like for those worlds to collide.  From the very moment you join, you can separate your work friends from your college buddies and so forth.

Google+ does this by establishing what it calls “circles,” user groups to which you must assign those with whom you wish to connect using the site.  For example, you can establish a circle called “family” and assign relatives to that circle.  Similarly, you can create circles centered around interests groups such as law, technology, or even music or sports.  (You can even create a circle for those that you wish to mainly ignore.). When you elect to post something to Google+, you must decide which circle to which you will send the post.  Accordingly, a post sent to one’s sports or family circle will not be published to any other circles.  Users can of course send a single post to multiple circles, one circle in particular, or even one user in particular.  How does this affect attorneys?  Well, for one, it allows us to more easily discuss the law and legal issues on their social networking profile without pestering those who are not interested in that subject matter.  Those of us who use social media realize that there are many different “friends” with whom we have connected who may not wish to learn about the latest legal issue.  One can create a circle called “law” and share legal issues only with that circle and spare one’s remaining friends from any such discussion. This may be easier than maintaining separate personal and professional profiles.

How does this differ from Facebook (which, as you know, we here at Abnormal Use recently joined ourselves)?  Well, Facebook allows one to create different groups and control the level of information that is shared with those particular groups.  However, Facebook did not start with that ability as a core function.  When one becomes friends with another on Facebook, by default, that friend can see all of your information unless you adjust to private settings or assign that user to a particular group that limits the profile information that can be seen.  Further, if you’ve already accumulated hundreds and hundreds of Facebook friends, you’ll need to create certain privacy settings and add each friend individually to each desired privacy setting. That could become quite a hassle. With Google+, when you confirm a connection with another user, you must assign that user to a particular circle or circles as part of the connection process. It’s easier, in part, simply because Google+ is new.  However, Google+ seems to have been designed to ameliorate the “worlds colliding” dilemma, while Facebook has had to retcon itself to address that concern.

As we noted above, the biggest challenge for Google+ is for people – many of whom use multiple social networking utilities – to bring Google+ into the routine.  We’re currently struggling with that, as we already use Twitter, Facebook, and LinkedIn, but the (relatively) new Google+ iPhone app may make that a far easier task. In sum, Google+ is worth investigating.