In November of 2012, we blogged about the Castleman case, the most recent Engle decision in Florida, where the court found itself in the strange position of hearing the plaintiff argue for an earlier manifestation date in his smoking/lung injury case.  Usually, the plaintiff is arguing for a later date to prove that he hasn’t blown the statute of limitations.  But, as we discussed in that post, the earlier manifestation date would have allowed the plaintiff to gain class member status, affording him the benefits of certain preclusive findings in his own case.

Well, Engle issues also arose in the October 2012 decision of Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152 (Fla. Dist. Ct. App. 2012) [PDF].  This case involved, predictably, the death of the plaintiff’s decedent as a result of smoking Philip Morris-manufactured cigarettes.

The other issue before the court in Barnabell, as in Castleman, was the statute of limitations.  Philip Morris argued that the court erred by not granting the company’s motion for summary judgment on the issue.  This appeals court affirmed the trial court’s decision and declined to grant Philip Morris judgment as a matter of law.

Specifically, the issue was whether the statute of limitations began to run when the decedent started to experience lung-related conditions including shortness of breath, “hard breathing,” and other breathing-related difficulties, or whether the clock didn’t start until the decedent was specifically informed by her doctor that she suffered from smoking-related emphysema and, later, lung cancer.

The court held that the latter diagnoses should be the measure by which the statute of limitations was calculated:

In this case, the trial court directed a verdict on PM’s affirmative defense that the statute of limitations barred Barbanell’s claim of wrongful death from lung cancer, and the jury made the finding that Shirley Barbanell did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that Mrs. Barbanell was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer. We therefore affirm the trial court in all respects as to the direct appeal and cross-appeal. 

Recently, the Commonwealth of Pennsylvania brought suit against the NCAA, alleging that the NCAA violated antitrust laws in levying severe sanctions against Penn State’s football program.  Notably, the University is not a party to the suit.  We have seen a few of the media’s “legal experts,” such as Andrew Napolitano (here) and Lester Munson (here), argue that the Commonwealth has no legal standing.  They believe Penn State or its student athletes are the only ones with standing to sue.  So if these brilliant legal minds have spoken, there’s nothing to see here.  Or is there?  Well, upon reading the complaint and doing about ten minutes of legal research, it’s clear that there’s actually a solid basis for the Commonwealth to assert standing to sue.

By way of background, in 2011 Penn State’s president, vice-president, and athletic director were accused of failing to report a 2001 allegation sexual abuse of a minor by a retired assistant football coach.  All three have been criminally charged and are no longer actively employed with the school, but the trials are still pending.   There were no allegations that any student athletes were involved in this matter and the head football coach followed university procedures in passing the allegations to his superiors.  Nevertheless, in July, the NCAA bypassed its normal enforcement procedures and levied massive penalties against the football team, including drastic scholarship reductions, a four year bowl ban, and a $60 million fine.  Some have declared the sanctions to be worse than the “death penalty.” The NCAA did not cite a specific NCAA rule violation as basis for the punishment, but instead simply cited general ethics standards.

Penn State receives state funding but is not considered a “state school,” in spite of its name.  So how exactly does the Commonwealth have grounds to assert standing to challenge these sanctions levied against the Penn State?  It comes from a relatively obscure doctrine called Parens Patriae.  As noted in the first paragraph of the complaint, the Commonwealth of Pennsylvania brought this suit Parens Patriae seeking an injunction under Section 16 of the Clayton Act (15 U.S.C. § 26).  Under the doctrine of Parens Patriae, a state can bring a legal action to protect its citizens from harm. The Parens Patriae doctrine is indeed applicable in antitrust actions.  An American Law Reports article (23 A.L.R. Fed. 878) on Parens Patriae and Antitrust states:

…. a parens patriae action under § 16 of the Clayton Act (15 U.S.C.A. § 26), which provides for injunctive relief against antitrust violations, can be maintained by a state on the basis of injury to the state’s general economy.

This is what the District Court held in Com. of Pa. v. Russell Stover Candies, Inc., CIV. A. 93-1972, 1993 WL 145264 (E.D. Pa. May 6, 1993) (citing State of Ga. v. Penn R. Co., 324 U.S. 439 (U.S. 1945)).

The Commonwealth’s complaint lays out the case for how its economy was injured.  In short, the complaint alleges that the Penn State football program generates hundreds of millions of dollars for the economy in central Pennsylvania.  The complaint further alleges the sanctions levied by the NCAA, which are allegedly in violation of Section 1 of the Sherman Act, will cripple the viability of the football program and will in turn impact the state’s economy through lost travel, hotels, ticket sales, dining, et cetera.

It would seem that the Commonwealth has a pretty strong basis for standing.  It shouldn’t be hard for it to secure expert affidavits to show economic harm in order to get it past a motion to dismiss for lack of standing.  Heck, the NCAA’s President, Dr. Mark Emmert, has essentially admitted that the Penn State football program is a major economic engine whose demise will have far reaching impact.  As noted in the complaint, in discussing why the NCAA imposed sanctions rather than completely shutting down the football program, Dr. Emmert stated:

The collateral damage imposed in this case would have been on people who were essentially innocent bystanders … This case had nothing to do with the marching band or the mom-and-pop hotel in State College or the guy who sells hot dogs, all of whom would have been profoundly affected by a multiyear football ban.

Of course, the sanctions imposed by the NCAA will still have the same collateral economic effects as those discussed by Dr. Emmert, but on a smaller scale.

Notably, the Commonwealth did not request monetary damages.  Courts are generally more relaxed in allowing standing for states in antitrust cases requesting injunctive relief under § 16 of the Clayton Act rather than treble damages under § 4.   Under § 4, courts are reluctant to allow standing for a general state economic injury because such indirect damages are difficult to measure.

If the Commonwealth can survive a motion to dismiss for lack of standing, this case could be very interesting.  Then again, I doubt either party wants to see this make the inside of a courtroom.   I wouldn’t be surprised to see some sort of settlement for reduced sanctions if the Commonwealth can get past motions to dismiss.   Some have already speculated that settlement is the real end game.

This picture was forwarded to me by a friend after he purchased a remote control helicopter.  Maybe Santa brought you one of these in your stocking as well.  In case you can’t see the warning printed on the blade, it reads as follows:

WARNING.  If blade damage, don’t be fly.  otherwise it will create the human body or blame damage.

Clearly, this warning label has some problems, but we thought that it would be a great time to review warnings standards, and discuss specifically what the drafter could have done better (at least under South Carolina law). First, when is a warning required in the first place?  Basically, if it is foreseeable that users might need to be warned about the precise risk involved with using a product, it will be required.  See, e.g. Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct. App. 1995).   Warnings are not required when the danger is open and obvious to the user.  Moore v. Barony House Rest., LLC, 382 S.C. 35, 41, 674 S.E.2d 500, 504 (Ct. App. 2009).  The issue of foreseeability has been the subject of litigation as well–how broadly should a manufacturer foresee that the product will be used, either appropriately (intended use) or inappropriately (non-intended use)?  One case provides a good guide:

Twenty one years ago, Stella Liebeck spilled what became the world’s most famous cup of coffee. Two years ago, we here at Abnormal Use started writing about her famed litigation against McDonald’s.  Our FAQ file on the litigation and our commentary on the subsequent Hot Coffee documentary created quite a buzz in the blogosphere. (In fact, those posts are still drawing comments two years later). What about a cup of coffee spilled in New Mexico more than two decades ago is so important that we are still talking about it today?

For starters, history keeps repeating itself.  So we have to keep writing about it, right?

According to a report from The Louisiana Record, a Louisiana woman is suing Burger King over burns she allegedly sustained by a cup of the fast food chain’s coffee. The woman alleges that a Burger King employee handed her the coffee through a drive-thru window. When the cup’s lid dislodged, the coffee spilled and allegedly caused serious burns to her arm, chest, and stomach. The woman claims that Burger King failed to properly secure the lid and served coffee at an extreme scalding temperature. Feel like you have heard this story before?

This case remains in its infant stages, so not much is known about the validity of the woman’s complaints. Nonetheless, we all know how this one likely will play out. Again, hot coffee cases are nothing new. In fact, many hot coffee claims predated Stella Liebeck – the McDonald’s case was just the first of a very few cases to see the inside of a courtroom. Based on this precedent, we doubt Burger King and the Louisiana woman will be heard by a jury of their peers, although we suppose that may depend on when the lid dislodged and if the employee was handing it to her as it did.

We’ll see. What is the meaning of all of these hot coffee claims some 20 years after Stella Liebeck? The plaintiff’s bar would have you believe that the Liebeck verdict was a mandate, now ignored, for restaurants to cease serving an “unreasonably dangerous” product. Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief. Despite the threat of litigation, people will continue to demand that their coffee be served hot. The debate will rage on.

Before accusing us of spreading dirty corporate information, let us reiterate that we recognize both sides of the issue. You will not hear us questioning the seriousness of Liebeck’s injuries or the temperature of her coffee. Liebeck and many of the plaintiffs that followed sustained significant injuries caused by hot coffee. We do not question these facts. We simply believe that this is a liability issue. Coffee is meant to be served hot, and plaintiffs want it that way – until it is spilled. The latest coffee case will not be the last. As long as people keep drinking hot coffee, restaurants will continue to serve it that way. And, if people keep drinking liquids, spills will ensue. And lawsuits will happen, apparently.

Now, we’ve mentioned comic book legal titan Tiger Lawyer before. The series was created and written by Ryan Ferrier, and we’ve mentioned it previously here, here, and here.  We’re really thinking about getting a print of this neat poster, depicted above. Do you think it would fit well in our office next to our diplomas?

Oh, no.  “ABC Considering 50 Scripts for Live-Action ‘Star Wars’ TV Series.” You know how we feel about that.

The Strange Brewing Company of Denver, Colorado is in a trademark dispute with a Massachusetts home brew shoppe called Strange Brew.  Oh, to be able to serve requests for production in that case! For more, see here. (Hat tip: Beer Pulse).

One again, @TweetsOfOld showcases the curious laws of yesteryear, this time the phone etiquette statute in Nebraska in 1910.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Every tort has elements established by either common or statutory law which must be proven in order for the plaintiff to prevail. For example, negligent conduct without resulting damages does not constitute an actionable negligence claim in the eyes of the law. Product liability claims are no different. Plaintiffs must show that they were injured by a product but also that the injuries were caused by a product in an unreasonably dangerous, defective condition. If one element is not proven, then the plaintiff cannot prevail. In cases involving complex, scientific issues, expert testimony is often necessary to prove the design defect. Recently, the South Carolina Supreme Court addressed the difficult burden plaintiffs face in proving these necessary legal elements.

In Graves v. CAS Medical Systems, Inc., Op. No. 27168 (S.C. Dec. 12, 2012), the plaintiffs filed suit against CAS Medical Systems following the death of their 6-month old daughter. The girl was one of three triplet daughters ordered to be connected to an in-home monitor manufactured by CAS to track breathing and heart patterns. By design, the monitor would sound a loud alarm if the girl stopped breathing or her heart rate slowed. Despite being monitored by the machine, the girl died one night of Sudden Infant Death Syndrome (SIDS). The plaintiffs allege that the monitor’s alarm never sounded.

Subsequently, the plaintiffs sued CAS, alleging that the monitor’s software design caused the monitor to fail. As an over-simplified summary of their theory, they alleged that the software was “jumbled,” causing the alarm signal to occassionally get lost on the way to its destination. There was no dispute that the harware functioned properly. To support their claim, the plaintiffs retained three software experts to testify that a defect caused an alarm failure. None of the experts did much actual testing of the hardware, relying instead on so-called differential diagnosis theory. Because the plaintiffs were not woken by the alarm, it must not have sounded, at least according to the experts. Because the hardware was not defective, then the software was to blame. Sounds like good logic.

At trial, CAS moved to have the experts’ testimony excluded on the grounds that it did not meet the reliability factors for scientific testimony. In turn, CAS moved for summary judgment because without the expert testimony, the plaintiffs could not prove a design defect. The Court agreed that the experts’ testimony was not reliable and granted CAS’ motion for summary judgment.

On appeal, the Supreme Court agreed with the trial court in finding that the experts’ testimony was unreliable. The Court indicated that when relying on differential diagnosis, the expert must provide a reasonable, objective explanation for the rejection of alternative causes. Apparently, the “because they said so” explanation was insufficient. As the Court noted, there was substantial evidence that complaint error was a real possibility. The monitor’s internal record keeping system noted that the alarm sounded. The girl’s pediatrician opined that the plaintiffs slept through the alarm due to the extreme exhaustion of raising triplet infants. Moreover, the monitor successfully recorded the girl’s declining heart rate and breathing cessation. None of this evidence appears to have been accounted for by the experts.

Without the expert testimony, the Court held that the plaintiffs’ could not prove the injury was caused by a defective condition – an essential element of a product liability claim. The plaintiffs had to offer some evidence beyond a potential failure to show that it was unreasonably dangerous. Because the allegations involved complex software issues, expert testimony was necessary. Without it, the plaintiffs could not support their claim.

We here at Abnormal Use know not whether the monitor’s software was in fact defective, but neither do those experts. There simply was not enough evidence. While some extenuated logic could deduce that the software was defective because the alarm was not heard, it doesn’t account for alternative explanations. Further, simply because something was not heard does not mean it didn’t sound. Expert testimony must still account for some objective criteria – or plaintiffs run the risk of overlooking essential elements of their claims.

So this is it.  My last post for Abnormal Use.  Instead of taking time to wax comedic about products liability claims, I thought I’d take this to serioustown for an observation about the silent victims of the judicial budget criss.  The victims I’m referring to are the members of the state and federal judiciary.

There are any number of articles you can Google about the judicial budget crisis, so there’s no need to recap them here.  To some extent, this crisis is nothing new for our courts.  The past few years have been difficult for everyone, with relatively few folks in any industry seeing any pay increase.  This has been especially true for judges, who in large part, have seen the value of their salary steadily decline over the past 20 years.  In the federal judiciary, for example, there have been no pay increases over that time period and few cost of living adjustments.  Even as other branches of the federal government have had increases and adjustments.  This is unacceptable. We are glad to see that one group of federal judges has already successfully sued the government for having been unjustly compensated, and that another group is organizing into a class action for the benefit of all similarly situated judges.

There’s something confidence-inspiring about seeing judges sue their own government for the redress of their grievances.

Some may say So what?  Who cares? I care.  And not just because I’m a lawyer.  I care because I believe the judiciary is the soul of the American republic.  An impartial system of dispute resolution is critical for maintaining order and liberty.  If there’s no such system of dispute resolution—or if it’s so slow that it might as well not exist, then people will start taking subjective notions of justice into their own hands.  And that is a frightening thought.  I honestly believe that you could take away executive and legislative institutions right now, and society, in its crippled state, would still hobble forward.  But if you took away judicial institutions, society would collapse on itself in no time at all.

It’s been fun writing for the blog and reporting stupid cases from coast to coast.  However, we’re able to laugh at those cases only because there’s an orderly system through which those disputes may be resolved.  As we head through these strange economic times, I hope and pray that those with the ability to make budgetary decisions for government institutions will act fairly towards members of the judiciary and responsibly towards the longevity of the American experiment.

And with that, goodbye.  Farewell.  And amen.

Admittedly, there is almost nothing I can do on the Internet without Google.  I Google everything.  Sometimes, when I’m feeling lazy, I Google-search for websites even though I know their addresses by heart.  One of my new favorite things is to watch movies at home—especially old movies—with my smartphone in hand.  That way, I can Google the backgrounds of the actors and actresses or the origin of some obscure cinematic reference with ease.  It’s like a do-it-yourself Pop-Up-Video.

In any event, I love Google.  It does a lot for me.

This past weekend, it even got me entangled in an Oklahoma class-action lawsuit.  Here’s how it happened.

For the past couple of months, my TV has been behaving oddly. When you turn it on, it makes a lot of clicking sounds and cycles through on-and-off for about 30 seconds before it actually, finally, turns on.  It’s annoying, but not to the point of ruining my day, so I haven’t done anything about it.  Last week the missus and I were planning to watch something she likes and I hate — “Dance Moms,” “Grey’s Anatomy,” I can’t remember — when the TV began the aforementioned clicking/cycling routine.

At this point, my lovely wife suggested that I Google these symptoms.  And I promptly disregarded her.

Like Google can tell me why my TV is making strange noises.  Please!  It doesn’t know everything.

Oh, ye of little faith.

As whatever godawful show my wife was watching droned on, I needed a distraction.  I navigated to Google and attempted to diagnose my TV’s illness.  It would at least pass the time.  I went to the search bar, typed in the name of the manufacturer of my TV and the word “clicking,” and hit “Search.”  Almost instantaneously, Google returned dozens of sites talking about TVs like mine suffering from the same clicking-and-cycling issues.  Apparently, there’s a defect in some capacitors that causes this problem.  More importantly, for my own selfish interests, someone else had already litigated this issue on behalf of a class of plaintiffs—to which I happened to belong—and obtained a settlement that will provide me with a free repair or replacement.  Now that’s what I’m talking about!

This is fascinating on a couple of levels.  Literally, in the span of one minute, I went from being resigned about the weirdness of my TV’s clicking and cycling to hopeful about the free repair or replacement coming my way.  The only thing that separated those two perspectives was the fact that I ran a simple Google search.  Which was free.  As opposed to the value of the benefit that I received.  If I were to have paid for my own repair, it would have been at least $50.  Or, if I had bought another TV, it would have been 20-30 times that.  Perhaps the most important observation is that, in the not-too-distant past, this would have been impossible.  I mentioned previously that the class action settlement was obtained in Oklahoma state court.  Without Google, it’s likely that I never would have learned of the litigation or the settlement.  After all, the manufacturer had no way to know that I owned one of its TV’s and that I was experiencing a problem.  And I had no way to know that the problem I was experiencing was common to a lot of other people.  Google therefore supplemented a tremendous information gap in a way that was ultimately beneficial for me, the almighty consumer, but also—strangely—for the manufacturer.  Rather than talk trash about my TV and its clicking-and-cycling issues, I can talk about how the manufacturer fixed my TV and extended its useful life for several more years.  By informing me about the class action settlement and the opportunity for repair, Google was protecting the goodwill of the TV’s manufacturer in the eyes of its customers.  And I’m likely to buy another TV from that manufacturer in the future.

There’s no question that the Internet has been a transformative innovation, certainly with regard to economic issues.  But it also holds the potential to be transformative with regard to legal interests.  In the globalized world, regardless of where products may move geographically, it is now possible for individual owners to express their frustrations about those products in a virtual public environment, to become connected with each other’s opinions and experiences by simply by surfing the Internet, and incredibly, to opt in remotely to litigation and/or settlement from the comfort of their couch as a consequence of running a simple Google search on a random Thursday night.

Last week, we received a bit of good news!  After all the votes were tabulated, for the third consecutive year, Abnormal Use won the popular vote for the Torts category in the ABA Journal‘s 6th Annual Blawg 100.  Back in November, we were named one of the top 100 legal blogs by the editors of the ABA Journal, and as a part of that, we were placed into a category with four other well regarded Torts blogs, including our friends Walter Olson of Overlawyered, and Jim Beck, Will Sachse and Steve McConnell of the Drug and Device Law blog.

It was a privilege just to be included in that list.  As we’ve said time and time again, Walter and the Drug and Device Law guys inspired us to start this blog back in the day.

After publishing their list, the editors of the ABA Journal asked readers to vote upon their favorite blogs in each category.  We did a little campaigning, and the polls closed on December 21. You can see the final results in each category here. (We also congratulate friend of the blog Kevin Underhill of the Lowering the Bar blog for once again winning the popular vote in the “For Fun” category).

We urge you to check out some of the other blawgs on the ABA Journal‘s  list. Through this annual process, we have discovered some of our own personal favorites.  Plus, it’s nice to see some fine sites receive well deserved recognition, including Jeff Richardson’s iPhone J.D. blog, the great Law and the Multiverse blog, and even Maxwell Kennerly’s plaintiff-friendly Litigation & Trial blog.

We couldn’t have won it without the support of you, our dear readers.  Thanks again for voting for us, and of course, thanks for continuing to read our site!

As we noted yesterday, today is our third birthday. Depicted above is Steppenwolf’s At Your Birthday Party LP,  released way, way back in 1969.  (Hey, we can’t do a comic book cover every week!) Anyway, this record featured a number of great Steppenwolf tunes, including “Rock Me,” “Jupiter’s Child, and of course, “It’s Never Too Late,” our personal favorite. Indeed!

Best. Warning. Label Ever. (Thanks to Walter Olson of Overlawyered for pointing this one out.).

Friend of the blog Jonathan Sink has published his very first post over at the North Carolina Law Blog.  The title: “Oppositional Defiant Disorder: Waving Goodbye to Student Discipline in America’s Public Schools.”  That sounds heavy duty.

Our pal Jay Hornack a/k/a The Panic Street Lawyer, writing in the Pittsburgh Post Gazette, shares his 10 favorite live concerts of 2012.

Here’s a good one for the new year: “11 Signs, Announcements, and Disclaimers That Are No Longer Necessary.”

We  hope you made it through the first week of 2013. We admit that it took some effort to get back into the swing of things. But here we are, back in blogging action, ready to bring you new content for the new year. Watch out!