Blogger’s Block (A Blog About Nothing)

Our editor has reminded me that it’s time for me to submit a blog post. So, here it is.

I could write about unmanned aircraft systems (UAS), commonly known as drones. There has been a good bit of discussion lately about the potential regulatory scheme for drones,  liability for negligent operation of drones, and product liability claims against drone manufacturers. But that would require some research, and I am not inclined to do that just now.

I could provide my nuanced political analysis on the first Democratic presidential debate, but I am confident our editor does not want me to go in that direction.  (Hint:  Ms. Clinton was the clear winner; Senator Sanders was his usual cantankerous self.)

What about religion? I could write about the role of religion in our political system with some GOP presidential candidates relying so heavily on evangelical support for their candidacies. But that would be a double-whammy taboo for the Abnormal Use blog.

What about this? I have been invited to speak to the Greenville County Dental Society about depression and suicide among that profession. According to the CDC, they have the highest per capita suicide rate among all professions. I have no idea why, but if our readers wish to offer any thoughts, I’m listening.

Alas, I suffer from a social media malady known as Blogger’s Block. Catch you next time!

Friday Links

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Above, you’ll find the cover of Supernatural Law #38, and we must confess we dig it. “My case has become such a personal issue for my attorney – she doesn’t even notice I’m disappearing!” exclaims a client facing more than legal issues, it seems. We wonder if any of the ethical bodies of the state bars have addressed the issue of a partially disapparating client.

If you’re in Charlotte next week, you might be interested in a CLE that our editor, Jim Dedman, has planned for the Mecklenburg County Bar. It’s called “Bitcoin Basics for Lawyers,” and you can find the program and registration information here. If you’ve ever wondered about the nature of and law governing this cryptocurrency, there’s no better time to learn how it might affect your practice.

We tend to agree with this writer that emojis are ruining civilization. Any thoughts, dear readers?

Our favorite legal tweet of late is from our own Stuart Mauney, who congratulates our own John Cuttino:

iPads at Depositions

There are those moments when you are in the room, waiting for the other parties to arrive at the deposition, when conversations inevitably turn to that topic of topics:  iPads. Who can resist?

Recently, under such circumstances, I had an interesting conversation with a court reporter in which we discussed the possible future usage of iPads during the deposition process.  Certainly, already, lawyers are bringing their deposition outlines and documents to depositions on their iPads, laptops, or tablets.  With utilities like Dropbox and other online file storage utilities, lawyers or their staff members can place sizable PDF files in shared folders and make them accessible to the lawyer at their deposition. (Let’s assume for the purposes of this blog entry that any file sharing security and safety concerns are not at issue, shall we?)

The chief practical advantage of this approach is that the lawyer need not take boxes and boxes and boxes of voluminous potential exhibits to the deposition. Wouldn’t that be nice? Sigh. There have been cases during which I have had to take multiple boxes – each full of red wells, folders, papers, binders, and such – to the deposition.  You’ve got to have your notice of deposition, accident report, witness statements, and other records ready to be admitted into the record. Plus, you must carry with you a number of potential exhibits, as well. You never know what might become relevant; perhaps the witness will make a remark which requires the usage of voluminous medical or employment records as exhibits.  Perhaps you’ve dug up lots of dirt on the witness and want to reserve the right to confront him or her with documents to that effect.

But why are we are we continuing to bring these papers with us to depositions?  Well, the custom is, and the rules generally require, that the deposing lawyer provide copies of each exhibit to any lawyer present at the deposition.  We also need for the witness to be able to physically hold a copy of the exhibit, which, of course becomes the property of the court reporter who attaches it to the deposition in question. Lots of paper, that.

There’s a better way.

For most exhibits, we could simply produce a PDF on our iPads and show the witness the document in that format.  Prior to doing so, we could email a PDF of that exhibit from our iPads to all the lawyers present at the deposition so that they could have a copy to review on their laptops, PDAs or iPads.  Finally, a copy could be emailed to the court reporter to attach to the deposition itself, thereby sparing the need for multiple printouts of these exhibits (particularly when certain exhibits were probably already brought by all of the lawyers present as part of their own preparation for the proceeding).  This certainly seems to be an appropriate approach for exhibits such as notices of deposition, discovery responses, and accident reports, all of which are almost certain to be introduced into evidence, that every attorney in the case already has anyway, and in all likelihood, brought with them to the deposition in the first place.

But what if you want the witness to draw the exhibit?  How can I do so if it is in digital format?  Well, there are even programs that will allow someone using a stylist to draw on a PDF that is imported in that program.

Such issues are easily overcome.

Someday, though, someday, we’ll be able to arrive at the deposition with just our laptop or tablet.

But, alas, that day has not yet arrived.

(This post was originally posted on the now defunct North Carolina Law Blog on Wednesday, April 11, 2012).

On Your Marks, Get Set . . . VW Lawsuits Race Underway

We knew there would be much litigation over the Volkswagen emissions scandal, but even we are shocked by the quantity and speed of the filings. As of our last check, PACER showed that Volkswagen has already been named as a defendant in 374 lawsuits in more 60 different federal courts since the scandal broke on September 18. In the words of Ron Burgundy, “Boy, that escalated quickly.”

There were a lot of firms angling to file their complaints quickly to beat the competition to be named lead attorneys when cases reach the consolidation phase. Nearly 200 cases were filed less than a week after the allegations surfaced. However, the clear winner of the 100 meter dash to the courthouse is the Seattle firm of Hagens Berman. PACER reveals that it filed a 27 page class action complaint on September 18, which is the very day the news was reported.  Now that is some speedy complaint filing.

With so many class-action suits filed in so many different courts across the country, these cases will probably head to the Judicial Panel on Multidistrict Litigation. In order to conserve resources, the panel will likely assign all of the cases to one federal judge. This action will avoid duplication of efforts for simple things such as pretrial hearings. In deciding where to assign the case, the panel will consider things such as the residency of the plaintiffs, the location of the evidence, and the availability of judges. Volkswagen of North America is headquartered in Herndon, Virginia, so the U.S. District Court for the Eastern District of Virginia may be a candidate for the handling these cases. We shall see.

The Run-of-the-Mill Table Saw: Not Your Grandfather’s Open And Obvious Dangerous Condition

Recently, an Alabama man filed suit against Sears Roebuck & Co. after losing several fingers while operating a Craftsman table saw. According to a report from the Cook County Record, Victor Ingram’s fingers came in contact with the saw’s blade while he was “acting reasonably and exercising all due care for his own safety.” As a result of the accident, Ingram had to have multiple fingers amputated on his left hand. The suit alleges that the table saw was known to Sears (which owns Craftsman) to be dangerous when it was designed and manufactured. Specifically, Ingram alleges that Sears knew of available technology which could better guard the blade and which could trigger the blade to shut off if the blade made contact with flesh. However, the table saw did not incorporate such technology. The suit contains causes of action for product liability, negligence, and breach of implied warranty of fitness.

At first glance, this suit appears to be the prototypical “open and obvious” case. Obviously, the purpose of the table saw is to cut wood.  The risk of injury from getting one’s fingers too close to a moving saw blade would certainly be known to the reasonable person. We question how Ingram could have possibly been “exercising all due care for his own safety” if he allowed his fingers to touch the blade in the first place. On the other hand, the allegations are not that Sears failed to warn of such an injury, but that there was available technology which could have prevented it that Sears neglected to use. Back in 2011, we wrote on a similar suit involving Ryobi and its failure to incorporate the “SawStop” technology.  In that case, Dr. Stephen Gass, who invented “SawStop,” testified on behalf of the plaintiff that he had pitched his technology to a number of table saw manufacturers, but did not get any suitors. In case you were wondering, that case ended with a $1.5 million verdict for the plaintiff.

The question becomes whether “SawStop” or similar technology is a viable alternative design? Are we going to establish that an entire category of inexpensive table saws are defective because they don’t incorporate the technology? Has technology now caught up to product liability principles such that what was once “open and obvious” is now a design defect? For the record, SawStop now manufactures its own line of table saws.

Marijuana Lawsuit Exposes Regulatory Gap

As we reported last week, two Colorado marijuana users filed a first of its kind lawsuit against a marijuana grower they claim used a dangerous pesticide to treat its product. The target of the suit, LivWell Inc., operates one of the largest marijuana grow houses in the world. Although legalized marijuana is a growing industry, this case a regulatory gap for the new industry. LivWell is accused of using a pesticide known as Eagle 20 on its marijuana crop. Plaintiffs allege that while Eagle 20 may be safe for use on foods, its morphs into hydrogen cyanide when heated with a standard cigarette lighter. Obviously, that might be a big problem for a crop that is usually consumed by smoking it. However, neither Plaintiff claims to have become sick or suffered any personal injury from smoking marijuana treated with Eagle 20. Rather, Plaintiff’s causes of action include breach of contract, implied warranty of merchantability, civil conspiracy, and unjust enrichment.

Nevertheless, the case shines a light on marijuana’s odd place in the regulatory arena. Colorado is one of four states that have legalized the sale of recreational marijuana.  However, safety regulations on marijuana growth are still sparse. The U.S. government still regards almost all marijuana as an illicit drug, and there are no federal safety guidelines for growing it.  Thus, regulation is left to the states who must do their own research on what chemicals are safe for use on marijuana.  Colorado’s Department of Agriculture has an approved list of marijuana pesticides that growers are supposed to follow.  However, the list doesn’t specifically ban any pesticides.

Given the infancy of the marijuana industry and the lack of research regarding pesticide use, this could be the first of many lawsuits to come.

Friday Links

We hope everyone is having a good time at the DRI Annual Meeting in Washington, DC this week. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. have quite the contingent of representatives there, including our editor, Jim Dedman, as well as GWB lawyers John T. Lay, Gray Culbreath, Stephanie Flynn, Ron Wray, and John Cuttino. Say hi if you see us! And don’t forget that Jim is speaking on the McDonald’s hot coffee case this afternoon!

Who has seen The Martian? Has anyone confirmed Mat Damon’s character’s space law analysis? We may need to have one of our contributors investigate that monologue.

Our legal tweet of the week is an important one:

Lawyer Up: Volkswagen Hires Kirkland & Ellis

Last week, we reported on the Volkswagen emissions scandal and what we expected would be an onslaught of lawsuits.  So far there have been more 200 federal lawsuits filed in the United States, in addition to investigations from the Environmental Protection Agency and the Department of Justice.  In response to the scandal, Volkswagen has called in the heavy hitters at Kirkland Ellis to lead its defense. Sure, this Volkswagen case will be a procedural and logistical nightmare given its sheer size and scope.  And we know the EPA and DOJ will be looking for their pound of flesh. But at the end of the day, it’s a bunch of customers that are miffed that their car isn’t as green as advertised.  Nobody died. The California coast is not covered in sludge. Some have estimated that Volkswagen may be on the hook for as much as $80 billion. We’d guess it gets out from under this thing for less than $30 billion. Of course, that is not counting the estimated $33 billion dollars in market value Volkswagen has already lost due its stock price plummeting after the scandal broke. Oh, well.

What is a Tort? I’m Glad You Asked, Says Tort Museum Founder Ralph Nader

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Torts and their reforms have spurned hot debates among lawmakers. Most laymen do not know what a “tort” is, but many of them have also become convinced in recent years that torts must be reformed. Ralph Nader, long-time consumer advocate and enemy of “corporate America,” disagrees. He has recently opened a Tort Museum in Winsted, Connecticut which pays homage to the pure, unreformed tort. According to the museum’s website, the mission of the museum is simple: “The American Museum of Tort Law seeks to increase citizen understanding of Tort Law – the law of wrongful injury – and the role it plays in protecting personal freedom, health and safety through the American civil justice system.”

The New Yorker’s recent article offers readers an idea of what to expect from the attraction. The museum apparently has something for everyone. For beginners, the museum explains the basics:

…a tort is any wrongful act that can be the basis for a civil lawsuit. For example, if you punch the mailman, the county prosecutor can charge you with the crime of assault and the mailman can sue you for the tort of battery. The law looks at the same punch in two different ways.

Surely, the museum also included a disclaimer instructing museum patrons not to strike the mailman. The museum includes an exhibit on the Corvair, the vehicle which was the subject of Nader’s 1965 book, Unsafe at Any Speed. For the tort history buffs, the museum has an exhibit dedicated to the historic “flaming rat” case, which we are still talking about today. Of course, the museum also has a section dedicated to the famous “Hot Coffee” case, a subject on which we often post.  If you visit the tort museum, you may have the opportunity to hear Nader’s personal take on the case:

Inside the museum, Nader personally escorted bewildered townspeople through the exhibits. He stopped in front of the McDonald’s Coffee Cup Case exhibit. “The lawyers didn’t tell people that McDonald’s kept their coffee that hot for commercial advantage. So it would stay hotter than Burger King’s as you drove along the highway. They’d already gotten seven hundred complaints about the burns.” Nader shook his head and looked at his guest, who nodded. He had changed one mind. He seemed satisfied.

Apparently, there is some question whether the museum will be successful:

Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, an organization that supports changes to tort law, said he doesn’t think there is any interest from the general public.

‘You probably couldn’t get school kids there because they’d sue the bus driver on the way’ Mr. Stebbins joked. And the kids ‘might not get out of the parking lot,’ he added, suggesting young people might not be thrilled by a museum about torts.

According to The New Yorker, Stebbins may be right. At least one young lady, who happened to be sporting blue hair, a nose and lip ring, and a hat displaying the hashtag “biteme,” found the museum “boring.” Only time will tell whether the museum will accomplish its mission or whether the hottest item in the museum’s gift shop will be the flaming rat t-shirt or Prosser, Wade, and Schwartz on Torts.

The Birth Of The Marijuana Product Liability Litigation

Last year, we here at Abnormal Use questioned when we would see our first meaningful piece of product liability litigation arising out of the legalization of marijuana. Well, apparently, that time is now.  According to a report from ABC News, two Coloradoans who like to partake in the use of marijuana filed a lawsuit against Denver-based pot company, LivWell, alleging that the company grows its weed using an unhealthy pesticide. LivWell allegedly has protected its crop with Eagle 20 EW, a fungicide that can become dangerous when heated. It is banned for use on tobacco.  Authorities previously quarantined marijuana grown at the facility due to the use of Eagle 20 EW; however, the plants were released after they tested at acceptable levels.

While this lawsuit is not exactly what we had in mind when we contemplated marijuana litigation, it is not unexpected. Due to the conflict between federal and state law regarding the legality of marijuana, there are no federal regulations for the safe growth of marijuana. As such, states which have legalized marijuana must ask themselves what standards they wish to adopt. Colorado has a list of “approved” pesticides, but the list is not all-inclusive, and the research is far from complete.

What is the purpose of this lawsuit other than to be the first marijuana product suit? LivWell no longer uses Eagle 20 EW. The plaintiffs do not allege to be injured by the marijuana (in fact, there are no known cases of marijuana pesticide illnesses to our knowledge). The plaintiffs allege only that they want LivWell to be punished for using Eagle 20 EW. Lack of federal guidance aside, are the Colorado courts really the venue to set the regulatory standards for pot growth? We imagine the plaintiffs’ real intention is to bring life back to a simpler time, when they could grow their own marijuana underneath the protection of a black light in the guest bathroom.