Friday Links

Today, marks the last day of 2011 blogging for us here at Abnormal Use.  With that also comes our last humble request for you to vote for us in the 2011 ABA Journal Blawg 100.  As we previously mentioned, we here at Abnormal Use were honored by being named to the 2011 ABA Journal Blawg 100 for the second year in a row.  We have been placed in the Torts category with five other excellent blogs.  The editors of the ABA Journal have asked that their readers vote upon their favorite blogs in each category, and today is the last day of voting!  

If you enjoy what we do here at Abnormal Use, we would greatly appreciate your support and humbly request that you cast your vote for us.  Here’s how:

Plug this website into your browser:

http://www.abajournal.com/blawg100

You will be prompted to register with the ABA Journal website.  It’s takes just a moment, as all you need to do is create a username and  password.

Once you have completed the registration, you will be taken to a page with a large logo at the top with twelve categories of blogs listed below it.

Click on the category labeled “Torts.”

Scroll down and find the entry for Abnormal Use.  Click the “Vote Now!” next to the Abnormal Use logo entry.

We’ll let you know how that turns out for us. In the meantime, we hope that you have a Happy New Year!

2011: The Year That Was

Wow.  2011 has come and very nearly gone.  That’s the cycle of life, we suppose. But we must pause to confess that we here at Abnormal Use and Gallivan, White & Boyd, P.A. have had one heck of a year.  On the blog front, we hit 500 posts. We were named by the ABA Journal to this year’s ABA Blawg 100 and also named one of the Top 25 Torts Blogs by the LexisNexis Litigation Resource Community. We were cited by The New York Times, Scientific American, and National Public Radio. We caused a stir with our many (some say too many) posts on the infamous Stella Liebeck McDonald’s hot coffee case. And, as per usual, we interviewed a whole host of law professors, practitioners, and pop culture celebs.

On the law firm front, it was also a significant year with many big changes.  We began 2011 as a law firm with a single office in Greenville, South Carolina.  We end 2011 as a larger, more regional firm with three offices in two states.  This past spring, we opened an office in Charlotte, North Carolina. Then, just a few months later, we opened an office in Columbia, South Carolina, just a stone’s throw from the state capitol building.

So, as you can see, it’s been quite a year for us here, both at the blog and within the firm.

Here’s hoping that 2012 is just as exciting.

The Abnormal Use Community

As 2011 draws to a close, we here at Abnormal Use have looked back on the year and shared with you both our favorite posts of 2011 and the Abnormal Interviews we published in the preceding twelve months.  One thing that we have not yet addressed is our great fondness of your reader comments and feedback.  We have received all sorts of comments this year, from congratulations, to praise, to vitriol.  (We certainly opened a can of worms with our discussion of the McDonald’s hot coffee case and our review of a plaintiff’s attorney’s documentary on same).

So, in the coming year, we humbly request that you please keep your thoughts and comments coming.  Even if you disagree with us, we hope you will share your opinions and observations (and judging by the past year, none of you are shy about doing so).

We also remind you that there are several ways to get a hold of us.  We are all into this social media thing and offer such outlets.

The blog itself:  First and foremost, you can comment and communicate with us directly right here on the blog itself. Don’t forget, too, that in the right hand column we feature a complete list of our writers and contributors. If you click on one of those names, you will be taken to that individual’s official biography on our law firm’s website, where you contact that writer directly via email if you wish.

Twitter:  We here at Abnormal Use love Twitter, and we tweet links to each blog post. We also try to interact with our friends and legal colleagues in the Twittersphere.  You can reach us on Twitter at @gwblawfirm.  So, if you like Twitter as much as we do, tweet us!

Facebook:  This year, we finally set up a Facebook page for Abnormal Use.  If you are a sporadic visitor to our website, but a frequent visitor to Facebook, you can follow our updates there without ever having to leave your favorite social network.  Click here to reach us there.

Now that you know all of the ways to reach us, please drop us a line in 2012!

Segway Takes $10 Million Hit Over Helmetless Rider

James Heselden, the owner of Segway, Inc., died back in 2010 after driving a Segway scooter off a cliff.   We imagine this news will one day be the foundation of a dramatic Segway urban legend.  For now, we assume this story has tipped the world that the Segway should be taken seriously despite its ridiculous exterior.  If the owner of the company can die while using his product, lay people better take caution.  Unfortunately, the apparent dangers of Segway operation wasn’t so well known back in 2009.

Recently, in Ezzo v. Segway, Inc., a Connecticut jury awarded $10 million to a plaintiff who fell and allegedly suffered a traumatic brain injury while operating the motorized scooter.  In September 2009, the plaintiff, a student at Southern Connecticut University, took part in a Segway obstacle course to raise money for the Special Olympics.  Segway employees brought two Segways to the university for the event and discovered that they had left helmets back at the office.  Rather than make a special trip back, Segway allegedly proceeded sans helmets.  During a blind-folded section of the course, the plaintiff lost his balance on the scooter and hit his head on the carpeted floor.  At trial, Segway argued the plaintiff fell because he blind-folded himself – not because he wasn’t wearing a helmet.  The reports are silent as to who was responsible for planning the blind-folded Segway run; however, the plaintiff was instructed to wear the blindfold by a campus police officer.    Segway has filed suit against the officer and the Special Olympics for indemnification.

For the record, neither Ezzo nor news of the Heselden’s unfortunate death offer any evidence that the product is defective.  Contrary to what you may hear from some of our more litigious friends, sometimes people are injured by perfectly safe products.  These accidents are the result of disrespect for the Segway.  Heselden died while riding the scooter along a narrow, uneven walkway littered by tree roots.  Ezzo was injured while driving blind-folded and helmetless.  The $10 million verdict is not evidence that something is fundamentally wrong with the Segway product.  Rather, as jury forewoman, Lorrie Hathway, indicated, “We felt the verdict was deserved.  The company instructed their employees to wear helmets, but did nothing to protect the students.” In other words, the verdict was about Segway’s alleged failure to protect its riders.

We recognize that at first glance the Segway may appear harmless.  Look again.  The Segway can reach a top speed of 12.5 miles per hour.  Twelve miles per hour might seem slow.  However, when you consider the average cyclist travels between 12-15 miles per hour, the Segway’s top speed gets a little more perspective.  How often do you see a cyclist on the road without a helmet?  Maybe, we should pay the Segway the same respect.

Preemption Returns to South Carolina

The topic of preemption comes up regularly in our posts, because it is such an important issue in products liability litigation.  As you can imagine, most of the cases come out of the drug context – the design, manufacture, and labeling of prescription drugs, so heavily regulated and controlled by the Food and Drug Administration, makes the drug industry a perfect forum to litigate preemption issues in products cases.

Recently, the U.S. District Court for the District of South Carolina heard a case in which the primary issue was preemption.  In Fisher v. Pelstring, et al., No. 4:09-cv-00252, 2011 WL 4552464 (D.S.C. Sept. 30, 2011), the court considered the case of William Fisher, who was diagnosed with a neurological condition after taking the generic version of a prescription drug used to treat acid reflux that was manufactured by a company called PLIVA.  Mr. Fisher and his wife brought medical malpractice causes of action against the doctor who prescribed the drug, as well as products liability causes of action against Pliva and two makers of the prescription brand of the drug, including strict liability, breach of express warranty, negligent misrepresentation, breach of undertaking special duty, fraud and misrepresentation, and constructive fraud.

There is something very important to note about the labeling of prescription drugs versus the labeling of generic drugs, as the court noted in its decision.  Brand name manufacturers are responsible for “the accuracy and adequacy of [a drug's] label,” meaning that they must go through the expensive and lengthy process of getting FDA approval for its label.  Generic manufacturers, on the other hand, are only responsible for making sure that the label they use is the same as the one used for the brand-name drug.

The plaintiffs argued that PLIVA failed to adequately warn consumers of the risk of neurological disease on its label, and that such a failure constituted a violation of state products liability laws.  Now, while the Fisher case was moving along, the U.S. Supreme Court was considering the case of PLIVA, Inc. v. Mensing, —U.S.—, 131 S. Ct. 2567 (2011).  In Mensing, the Court sided with PLIVA, which argued that if it were to unilaterally change its label to comply with state law as the plaintiffs in that case argued, it would violate federal law as prescribed by the FDA.

Good news for PLIVA in the Fisher case, right?  Well, it would have been, except for the fact that the plaintiffs were able to show that PLIVA’s generic label did not comply with the label on the brand name drug, and that the correct label would have warned the consumer to limit use of the drug to 12 weeks.  As the court noted, “[o]nce the FDA approved the addition of these warnings to the [brand-name] label, PLIVA has not indicated that any federal law prevented PLIVA from also adding these warnings to its generic . . . products.”

Based on this fact, the district court denied PLIVA’s motion to dismiss based on preemption.  The court did, however, base its decision to grant summary judgment for PLIVA on several causes of action on preemption analysis, including the causes of action for design defect, breach of express warranty, negligent misrepresentation, breach of undertaking a special duty, fraud and misrepresentation, and constructive fraud.

Merry Christmas from Abnormal Use!

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a very merry Christmas and a happy holiday season. May your day be filled with joy, family, and good cheer. And yes, that another cover of Christmas with the Super-Heroes, published by DC Comcis, way back when. (Click here to see which Christmas theme comic book cover we chose to run last year!)

Christmas Links (Our Favorite Christmas Movies)

Rather than link a series of Christmas themed legal news stories, today, we here at Abnormal Use thought we would explore something a bit more cheer inducing and suited to the holiday at hand. So, to celebrate the occasion, we asked three of our contributors to share their thoughts on the movies they cherish most during the holidays. (We tried this once on Halloween, so we thought, why not for Christmas?)

Steve Buckingham: There are two movies that stand out in my mind as perennial feel-good classics: A Christmas Carol and It’s a Wonderful Life.  One is the story of a bad man’s redemption; the other is a story of a good man’s redemption.  And what could be more inspirational around the holidays than that?  It’s a dynamic duo of warm-fuzzies.

But I’m not really a warm-and-fuzzy kind of guy.  So why am I drawn to these stories?  I think it’s because I see so much of myself in both Ebenezer Scrooge and George Bailey.

Some of you may be thinking, Whatever, Buckingham.  Don’t flatter yourself.  You’re not interesting enough to be a character. Fair enough.  But I have this theory — it’s more of a working hypothesis — that Scrooge and George have a lot in common.  So much in common, in fact, that it was the same basic personality trait that led to each of their downfalls: Duty.

You can see it in Scrooge’s early life.  As a young man, Scrooge was engaged to a lovely young filly.  The relationship eventually fell apart because Scrooge was working all the time.  Some may say that Scrooge’s ambition was his downfall.  But I think that misses the mark.  If we could talk with Scrooge, we would learn that he pushed himself so hard because he felt the weight of being responsible for not only himself but potentially for a wife and kids.  Scrooge believed it was his duty to be self-sufficient, and if he had a family, to be a provider for them.  But Scrooge was not willing to take on the responsibility of family until he was financially secure.  Instead, Scrooge ended up in social isolation.

We can also see duty at work in George Bailey.  All his life, George made decisions with others in mind, even if his choice came at great personal sacrifice.  George’s duty was to serve his community, and at times, to save his community.  This, of course, resulted in George bearing the weight of responsibility for not only his family, but also his friends and neighbors.  That weight had been accumulating for years, and then suddenly, it became crushing.  To the point where George thought that the world would be better off without him.

Most men, if they’re being honest with themselves, will admit to feeling the very same pressures, sometimes just as strongly.  Our identities are hard-wired to the concept of duty, and more importantly, to the belief that we have done our duty, whether to our friends, our families, our jobs, our communities, whatever.  It is a wretched thought to think that we have not lived up to those expectations.  And so we can look at George and think, Man, I’ve been there.  I know exactly what he’s going through.  Or we can look at Scrooge and say, I’m not that bad, am I? But with either character, it can be like looking into a mirror.  Sometimes you like what you see; sometimes you don’t.

The enduring lesson of A Christmas Carol and It’s a Wonderful Life is that our fulfillment comes from the relationships we build and the good that we do in the time we have.  In the midst of life’s pressure, it’s hard to keep that truth in mind.  But what better time than the holidays, when you’re surrounded by folks you love and who love you, to remember why it was we worked so hard this year and why we’ll do the same the next.

Nick Farr: No Christmas is ever complete without a screening of National Lampoon’s Christmas Vacation. Aside from its comedy, what makes the film truly special is how it resonates with viewers.  While you may have never had a Christmas filled with quite so many shenanigans, you can relate to the Griswalds.  We all appreciate the stress of planning the perfect family holiday gathering.  We all have that one crazy family member you question how he cross-pollinated with the family tree.  We all struggle with putting aside external pressures to enjoy a little family time at home.  Above all else, we all know that at the end of the day somehow it all works.

Many Christmas movies have been made depicting the archetypal Norman Rockwell family.  Those films fail to show all of the hard work that goes in to making the perfect Christmas.   What makes a real family is working through all of the chaos to get to the family photo. Christmas Vacation, while taking the chaos to the extreme, reminds us why we work so hard to try and make everything perfect.  Family.

Jim Dedman: Buckingham goes for meaning, Farr goes for laughs. But they’re both wrong. There is only one truly perfect Christmas film. As a matter of law, the best Christmas movie is, quite simply, Die Hard. Summary judgment granted. Happy holidays, everyone!

Our Favorite Posts of 2011

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we did last year, we here at Abnormal Use have collected our favorite posts of this past year – our second full year of existence. If you’ve followed us from the very beginning, you know that we’ve posted at least every business day these past two calendar years. That’s a lot! Looking back over several hundred posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date. Fill yourself with nostalgia, just as we have, and revisit these entries from 2011.

The Stella Liebeck McDonald’s Hot Coffee Case FAQ (Jim Dedman, January 25, 2011)

Marketing vs. The Market: A Debate About Bilingual Warnings (Frances Zacher, February 2, 2011)

Songs about Lawyers, Judges, and Attorneys (Jim Dedman, March 14, 2011)

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds (Jim Dedman, April 1, 2011)

TV Review: TNT’s “Franklin & Bash” (Laura Simons, June 1, 2011)

Sweet Coffee: The Next Great Documentary? (Nick Farr, June 14, 2011)

Film Review: Susan Saladoff’s “Hot Coffee” Documentary (Nick Farr, June 27, 2011)

The Perils of Making Pop Culture References at Depositions (Jim Dedman, August 8, 2011)

Religion and Products Liability Square Off in New Jersey (Nick Farr, August 11, 2011)

Google Crashes – Literally (More on the Driverless Car Dilemma) (Frances Zacher, August 24, 2011)

New Jersey v. Henderson: A Self-Critical Look at the American Judicial System (Steven Buckingham, August 30, 2011)

The Life and Death of R.E.M. (Jim Dedman, September 26, 2011)

Dedman on Dedman v. Dedman (1927) (Jim Dedman, November 1, 2011)

I Want My Halloween (Steven Buckingham, November 3, 2011)

30th Anniversary: “Absence of Malice” (Mills Gallivan, December 13, 2011)

The Ultimate Malpractice: “Miracle on 34th Street” (Steven Buckingham, December 14, 2011)

Abnormal Interviews of 2011

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. In 2011, we published a total of 18 such interviews – a bit more than the eleven we published last year, our first year of existence. Today, we list all of our 2011 interviews and provide links back to them:

Jeff Richardson of the iPhone J.D. blog (January 11, 2011)
Michael Sardo, Producer of USA’s TV Show, “Fairly Legal” (January 18, 2011)
Catherine Sharkey of New York University (March 7, 2011)
James Daily and Ryan Davidson of The Law and the Multiverse Blog (March 8, 2011)
Robert W. Cort, Carolyn Shelby and Christopher Ames, Makers of the 1991 Film, “Class Action” (March 15, 2011)
Larry D. Thompson, Author of “The Trial” (March 28, 2011)
Brian Dale Alle Strouse of The Lawsuits, a band (April 4, 2011)
Ted Frank of the Center for Class Action Fairness (April 25, 2011)
Adam Avery, Brewer of Collaboration Not Litigation Ale (May 3, 2011)
Jennifer Wriggins of the University of Maine School of Law (May 5, 2011)
Mark-Paul Gosselar and Breckin Meyer of “Franklin & Bash” (May 31, 2011)
Chuck Brodsky, Songwriter (June 7, 2011)
Megan Erickson of The Social Networking Law Blog (June 29, 2011)
Bob Dorigo Jones, Founder of the Wacky Warning Labels Contest (July 14, 2011)
Ernest Svenson a/k/a Ernie The Attorney (July 20, 2011)
J. Stanley McQuade of Campbell University School of Law (August 10, 2011)
Tamara Piety of The University of Tulsa (August 23, 2011)
Mark Waid of Marvel Comics (September 20, 2011)

As 2011 draws to a close, we’d like to take this opportunity to thank the individuals listed above for being kind enough to grant the interviews. We think our site is all the better for it. And, if you missed any of the interviews, take a look!

I Must Now Sue Santa

Last week, our very own Steve Buckingham wrote an intriguing (and quite funny) review of the infamous Santa (aka Kris Kringle) trial from Miracle on 34th Street.  As Steve correctly noted, the defendant in that film is not the real Santa, but rather a “good-natured elderly man with a love of Christmas who is correctly identified as having dementia.”  To our knowledge, the real Santa has never seen the inside of a courtroom.  Santa obviously has deep pockets, so this should come as a real shocker.   How Santa has been able to avoid litigation and public scrutiny over the last 200 years is beyond my comprehension.  Santa, I have news for you.  Despite your present run of lawsuit-avoidance, you are a tortfeasor.  Its time to lawyer-up because you have wronged me for the last time.

My history with Santa has always been very business-like.  We would typically see each other once a year.  At that time, we would come to an agreement in which he would deliver certain goods to my house on a certain date in consideration for my good behavior.  Santa always fulfilled his end of the bargain.  However, I found it odd he would never agree to make the exchange face-to-face.  Apparently, Santa had seen one too many Godfather movies because he valued discretion over all other things.  I preferred to make the exchange publicly during the daytime hours to make sure Santa didn’t try anything sinister.  Despite our contrasting styles, our arrangement seemed to work.  We had a good thing going.  Santa got whatever pleasure he derived from seeing well-behaved children, and I got my toys.

It all changed in 1987.  As usual, Santa and I had our annual meeting a few days after Thanksgiving.  We discussed the terms of the year’s transaction.  Because my behavior had been exceptional since our last encounter, I decided to up the ante.  Instead of the usual He-Man action figures, I requested a Nintendo Entertainment System.  Without flinching, Santa agreed.  I thought all was good. However, on the morning of December 25th, I went downstairs to our normal drop spot only to discover that instead of our agreed upon product, Santa had mistakenly left a bunch of Gobots! Gobots, of all toys!  If Santa wasn’t going to fulfill our deal, he could have at least had the decency to provide me with Transformers, not some generic rip-off.  Upon discovery of Santa’s betrayal, I tore my clothes and announced to the world that Santa was dead to me.  I vowed to one day hold Santa accountable for his actions. That was the sole reason I chose to become a lawyer.

Unfortunately, in 1987, I was unfamiliar with the legal remedy for breach of contract and the three-year statute of limitations.  Knowing that my claim was barred, I waited patiently for the day when Santa would slip up again.  Last weekend was that day.

My wife and I took our 3-year old daughter to the mall to do a little Christmas shopping.  The day started out uneventful, but upon arriving at the center of the mall, I made a discovery that was completely unexpected.  There he was.  Staring me straight in the eye.  Sitting on his throne.  Making deals with hordes of unsuspecting children.  Santa Claus.  My first thought was to walk right up to Santa and demand restitution.  However, getting into a verbal altercation was not the type of example I wanted to set for my daughter.  Instead, I decided I would walk away, pleased with this newfound knowledge of Santa’s whereabouts.  As I began to direct my family away from the scene, I felt a tug on my pants leg.  I looked down to see my daughter asking to go see Santa.  What do I do?  Do I tell her the man is a con-artist, crushing her innocent heart?  Or do I allow her to go spend time with my archenemy?  Well, as every father knows, we did what she wanted to do.  We went and saw Santa.

After waiting in line for 45 minutes (during which I concocted many stratagems), it was finally my daughter’s turn to meet Santa.  She walked right up and sat in his lap.  Santa flashed me a sinister smile, knowing that he once again had the opportunity to victimize the Farr family.  Then he looked at my daughter and asked her what she wanted for Christmas.  He had her.  This was his chance.  My daughter was about to confide in Santa her heart’s desires.  It was like watching an accident about to happen.  But to my surprise, she looked at Santa and said nothing.  Silence.  Santa was completely powerless over her.  Visibly defeated, Santa handed my daughter a cookie and sent her on her way.

While I never got my revenge on Santa, my 3-year old daughter had done it for me.  I was ecstatic.  We could rid ourselves of this Christmas menace forever.  But then I remembered the cookie.  To the outside world, I am sure the cookie appeared to be an innocent token of business appreciation.  But I knew the truth.  The cookie was a sugar-filled contract – a renewal of sorts – which Santa used to gain entry into one’s home.  I knew the the cookie must be destroyed.  Without instruction, my daughter voluntarily consumed this gingerbread contract of adhesion.

If I know Santa like I think I do, he will consider my daughter’s acceptance of the cookie as an open invitation to our home.  I have news for you, Santa.  This isn’t 1987.  Now, I am prepared to fight you with the weaponry of South Carolina tort law.  A minor under the age of four lacks the capacity to contract.  Ever heard of trespass?  You know, the unauthorized entry into the land of another?  Be warned.  Stay out of my property.   Stay off my land. If you choose to ignore my warning, you might also want to keep your hands off of those cookies sitting by the fireplace.  Those are mine.  Eat them and begin preparing your defense to the tort of conversion.

Please don’t treat my animosity towards Santa as an attack on Christmas.  I have nothing against the holiday.  My dispute is with Santa alone.  This conflict can only be resolved by our judicial system or a court appointed mediator.  Santa, just in case you were wondering, all I want for Christmas is to see you succumb to the long arm jurisdiction of the South Carolina courts, or, in the alternative, a Nintendo Entertainment System would suffice. Even after all of these years.