Adequate Warning?

For today’s post we will delve into the realm of Aesthetics. I promise that I will not wax eloquently about Aristotle and his views on the subject. Instead, I want to talk about the place where products manufacturers and the objects of their desire converge with the statutory and common law of your jurisdiction. Yep, you guessed it, I’m talking about warnings. More specifically, the placement of such warnings on a product. I can only imagine that one of the most difficult topics for manufacturers to discuss is where to put the warning(s) on a product. Just think about the sheer number of man-hours spent on deciding where a warning should be placed in order to adequately warn the consumer. I can only imagine executives having a meeting with the follow questions on the agenda: Will the warning be conspicuous enough? Is it in a place the consumer will look or be expected to look? Will the warning make our beautiful product look ugly if we put it here? Will our product look more like a NASCAR vehicle than the thing of beauty that our engineers designed? The United States District Court for the Middle District of Georgia, Athens Division, touched on this issue in a decision last week.

In Morris v. Harley Davidson Motor Co., No. 3:09-CV-74(CDL), 2010 WL 2723079 (M.D. Ga. July 7, 2010), the court addressed Harley’s Motion for Summary Judgment. The facts of the case were that the plaintiffs (husband and wife) were involved in a single motorcycle accident. Morris at *2. At the time of the accident, the plaintiffs were riding the motorcycle and pulling a trailer. Id. The rear tire failed, resulting in the accident and the death of the plaintiff’s wife. Id. The plaintiff also sustained serious injuries. The owner’s manual contained several warnings, including a warning to not exceed the motorcycle’s Gross Vehicle Weight Rating (GVWR) or Gross Axle Weight Rating (GAWR). Id. Based on the motorcycle’s GVWR from the factory, plus a full tank of gas, the motorcycle allows for an additional 420 pounds of weight capacity. Id. at *1. There was not a warning anywhere stating that the motorcycle was only rated to carry an additional 420 pounds. Id. at*2.

The manual also contained a warning against pulling a trailer with the motorcycle. In addition to the warnings contained in the manual, the motorcycle had warnings posted on the motorcycle itself. There was a warning placed inside the cargo compartment on the motorcycle and an information plate on the steering head, which listed the motorcycle’s GVWR. Id. The plaintiff testified that he did not see these warnings and apparently he did not read the owner’s manual either. Id. at *2-3.

Under Georgia law, there are two theories that a plaintiff can pursue to establish a breach of the duty to warn: first, by failing to adequately communicate the warning and second, by failing to provide and adequate warning of the potential risks associated with the product. Id. at *3. The plaintiff contended that the warnings were not adequately communicated to him. Interestingly, under this theory, failure to read the warnings does not act as a bar to recovery for a plaintiff. The court found that under such a theory, issues “as to location and presentation of the warning” are involved and thus there was a genuine issue of a material fact for the jury to determine.

This case is interesting to me as I consider my self somewhat of a car buff. Admittedly, there is a vast difference between cars and motorcycles, but I would suggest that there is one common ground between enthusiasts of cars and bikes. Most would agree that they prefer to drive or operate a vehicle that they think looks good. For me personally, I love the classic and venerable Jeep CJ-7. I simply love the way it looks. However, I can’t imagine I would want to drive a Golden Eagle that has a big ugly warning plastered all over the dash. In the case of a motorcycle, this issue is all the more problematic. There simply aren’t that many places on a motorcycle that a warning could be placed, due to the size of a bike, that wouldn’t detract from the aesthetics of the motorcycle. However, I do think that this is a real difficult issue where the manufacturer has to wrestle with finding a solution to try and meet the aesthetic requirements of the consumer and at the same time adequately communicate any warnings with the user.

Total Recall?

No, today’s post isn’t an homage to Arnold. Or maybe it is . . . . If you are like me, you are likely growing tired of all of the product recalls that have been issued this year. We here at Abnormal Use try to stay on the cutting edge and provide our readers with up-to-date and timely information whenever a recall is issued. Think of us as the informant to the informed.Whether it’s McDonalds’ Shrek glasses, SpaghettiOs, Tylenol, or baby strollers, we were there for our readers. Despite the wonderful content for our blog, I believe that our readers, like most Americans, are beginning to hit their saturation point with all of these product recalls.

Recently, there was a great article in The Washington Post that addressed this very issue. This phenomenon actually has a name: “product fatigue.” In her article, the writer points out that people are becoming confused by the number or recalls or even worse, simply ignoring the recalls.

‘It’s a real issue,’ said Jeff Farrar, associate commissioner for food protection at the Food and Drug Administration, who said even his wife has complained about the difficulty of keeping pace with recalls. ‘That number is steadily going up, and it’s difficult for us to get the word out without oversaturating consumers.’ The problem is twofold: Some people never learn that a product they own has been recalled, and others know they have a recalled product but don’t think anything bad will happen. ‘The national recall system that’s in place now just doesn’t work,’ said Craig Wilson, assistant vice president for quality assurance and food safety at Costco. ‘We call it the Chicken Little syndrome. If you keep shouting at the wind — ‘The sky is falling! The sky is falling!’ — people literally become immune to the message.’

The article from the Post also detailed some of the manufacturers’ reactions to recalls. Costco is actually notifying its customers, with a telephone call, when a product purchased by the customer has been recalled. I applaud Costco for their efforts, but at the same time I’m not sure that I want my local Publix asking me for my personal information so that they can call me if there is ever a problem with a product that I purchased from their store. It will be interesting to see how other manufacturers and sellers respond to this issue.

From the perspective of defense lawyer, I am becoming increasingly concerned about my clients’ future. Yes, we defense lawyers are always worried about our clients’ well-being and more specifically their exposure to bogus claims. My concern is this: what’s to keep some plaintiff from claiming the following: “Back in 2010 there were just so many product recalls I didn’t know what to do. I didn’t know that I couldn’t use my Shrek glass from McDonalds to help me swallow my Tylenol that I felt that I needed to take after eating my bowl of SpaghettiOs.” Besides the obvious procedural issue which would require me to immediately move the court to add additional defendants, how am I to respond to such a claim?

Unattended Candles

To foresee or not to foresee, that is the question. Well, at least its the question when you are arguing for summary judgment on the basis of the plaintiff’s failure to produce evidence on the issue of proximate cause. In a recent unpublished decision by the United States Court of Appeals for the Fourth Circuit, the court reviewed the seemingly symbiotic relationship between the proximate cause element in a negligence action and the requirement that the injury be a foreseeable consequence from an act or an omission. Graham v. Progress Energy, Inc., No. 08-1906 (4th Cir. June 25, 2010) (unpublished) [PDF].

In Graham, the court was reviewing the district court’s grant of summary judgment in favor of the defendants. The case arose out of an incident in which the plaintiffs’ home caught on fire. The fire started after the plaintiffs began using candles as a source of light. The reason that they had to use candles was that they failed to pay their electric bill and thus the power to their home was disconnected. On the date that the fire occurred, the plaintiffs had fallen asleep before extinguishing their candles. The plaintiffs sued Progress Energy on a negligence based claim.

The court framed the narrow issue as being “whether a reasonable jury could conclude that Progress’s alleged negligent conduct proximately caused the Grahams’ alleged harm.” The defendants did not dispute causation-in-fact. They admitted that it was foreseeable for the plaintiffs to use candles to illuminate their home. However, Progress Energy contended that the plaintiffs actions (i.e., falling asleep before extinguishing the candles) was an intervening cause that broke the chain of causation. Furthermore, the defendants claimed that while using candles to illuminate their home may have been foreseeable, …”going to sleep with the candles lit or otherwise failing to attend to the candle so as to prevent them from falling was certainly by no means so.”

The court opined that the defendants’ argument “misconstrues the relevant inquiry because South Carolina law does not require that particular events be foreseeable.” The court went on to reason that only the general harm and general intervening cause need to have been foreseeable. The court found that since candle use was foreseeable, a reasonable jury could have concluded that some amount of candle misuse was also foreseeable. Finally, the court pointed to evidence within the record that supported the conclusion that the plaintiffs’ alleged harm was also foreseeable. As such, the court reversed the grant of summary judgment.

The court’s analysis, albeit sound, leaves the ordinary practitioner wondering what is the true meaning of an intervening cause. The answer is found in the procedural posture of this case – this appeal involved the review of a summary judgment order. Perhaps on remand, the once (and future?) fixture of the American judicial system will resolve this issue. Of course, I’m referring to the jury trial. For all of you out there, who like me, have only been practicing law within the last decade, allow me to explain. A jury is the fact finder that resolves factual disputes during a trial. We’ll discuss the term “trial” during our next lesson. As for our weary candle users, one thing we can be sure of– it is foreseeable that the jury will have to determine issues like comparative and contributory negligence before these plaintiffs will be permitted to recover for leaving the light, I mean candle, on.

Jury Duty

We here at Abnormal Use believe that the right to a jury trial is the cornerstone of the American legal system, and we admire those who take that civic duty seriously. After all, it is required to ensure that our legal system operates in a manner that is fair to the parties involved in the case. However, some still view jury duty as some type of necessary evil – a chore that must be endured. In fact, some writers are even making a name for themselves offering online advice on how to cheat the system and escape jury duty by misrepresenting their circumstances.

Not cool.

Case in point: In a recent post on My Two Dollars, a personal financial blog, David, the post’s author, offers some shady tips on how to evade jury duty. They are troubling. The post in question has created some buzz in the blogosphere. When you click on the post, be sure and read few of the 50 something comments. The author contends that his tips are “foolproof.”

We think not.

Do you think that if you showed up at your local courthouse three sheets into the wind, as advised in Excuse #10, that the bailiff or the judge would be happy to excuse you?

Allow me to set the scene:
Judge: “Madame clerk, please excuse juror number 32 from his service today. Also, Mr. Bailiff, please escort juror number 32 to a holding cell.”

Drunk Juror: ” Thankssss your honor. Hiccup!”

How about if you were to follow the sage advice of Excuse # 3? All you have to do is notify the court that you are a felon. Everybody knows that the best part of being a convicted felon is that you are forever excused from jury duty. Of course, the author of this post warns that the reader that one actually needs to be a felon to utilize this excuse. My personal favorite is Excuse # 16, wherein the keen financial advisor suggests that the reader simply go all “George Carlin” on the court. Something tells me that this might be the worst tip of all. I actually almost want to see someone tell the court that they can determine one’s guilt simply by looking at them and then to make sure that the judge gets the point, spout off George’s seven dirty words. Afterall, those words didn’t cause any trouble at all. [See FCC v. Pacifica Foundation, 438 U.S. 726 (1978)]

All kidding aside, the bottom line is that you should always be wary of taking legal advice from a blog, particularly a purported financial writer offering tips on how to beat the judicial system. Even the author of the “fool proof” jury duty tips post provided a disclaimer to his post in which he warned his readers as follows: ” I am not responsible if you end up in jail and on trial by a jury of your peers should you attempt any and/or all of the items listed above and get busted!”

Perhaps someday he’ll get to litigate that language.

For A Limited Time Only And Not Forever After

If you are like me, you remember begging your parents to take you to Burger King in the early 1980′s. You had only one thing on your mind and no it wasn’t a Whopper, chicken fries or even to look for Herb. You, like me, were coveting the free glass that came with your drink. You know you wanted the one with Jabba the Hutt or maybe the one with Wickett the Ewok. I can remember taking my prized possession home with me and religiously asking for, neigh demanding to drink from it at every meal. You can imagine my dismay when after a month’s worth of running the glass through the dishwasher on a daily basis—what was left did not even resemble the vivid bright colors of Endor. The paint on the glasses faded along with my joy. Now I know why. In 1983 they weren’t using cadmium! I’m convinced that whatever lead substitute was in the paint of my prized Ewok glass was not cadmium.

Burger King may not have used cadmium in the paint of the famed Star Wars series glasses, but unfortunately the manufacturer of some 12 million Shrek Forever After glasses did. The glasses were, for a limited time only, distributed by McDonalds. On June 4, 2010, McDonalds and the U.S. Consumer Product Safety Commission voluntarily recalled the glasses. We here at Abnormal Use previously commented on other cadmium related news in 2010. For those posts, click here and here. It appears that the use of cadmium is more widespread than previously thought. In addition to the voluntary recall, McDonalds is offering a refund for the full purchase price ($2) plus and additional $1. For more details of McDonalds’ efforts and how to obtain your refund, click here.

Live From Litchfield Beach, South Carolina

I was on vacation last week. My family and I visited one of the most sacred of all family vacation spots – the beach! Our family goes to Litchfield Beach every year the week of Memorial Day. Litchfield is a quaint little beach, found just north of Pawleys Island and just south of Murrells Inlet, the seafood capital of South Carolina. As I sat there during my vacation at the beach, I couldn’t help but think of all of the products liability cases waiting to happen.

First, I considered all of the sunscreen manufacturers out there that need representation. Seriously, think of all of the times that people have put on sunscreen that is too old and have gotten scorched as a result. Surely, those people checked the expiration date on their Bullfrog or Zinka before they went out onto the beach. Right? Manufacturers of these wonderful products that allow us all to enjoy the beach and to engage in swimming, fishing and sunbathing should not have to worry about the frivolous lawsuits that some cheapskate 30-something year old guy brings when his SPF 30 doesn’t work (Not that I have experienced such an event).
Second, as an avid fisherman I dwelled upon the weary travelers that prick their thumbs with the hooks on their terminal tackle when trying to place a dead mullet on the end of their line. Or what about the nimrod that takes his graphite TICA 9′ rod out to fish the surf during a thunderstorm? I’ve seen the warning on the rod and I think its adequate, but I would venture to guess that there are plenty of plaintiffs out there who think otherwise. For all of the surf rod manufacturers reading this, I will work for fishing gear, but my boss might ask for an hourly fee!
Finally, I thought about all of the air conditioner defect cases that are filed in counties all along the coast. While we were in our own little slice of heaven, our air conditioner went out. The repairman that answered our “after hours” call at 9 p.m. on Sunday night told me that he had fielded 27 calls in 48 hours! I also learned that despite the fact that the unit on our rental was less than two years old, the compressor was “shot.” According to the repairman, “none of these last more than 6 years on this side of the highway.” Apparently, if your home is located on the non-ocean side of the highway you can expect 10 to 15 years out of the same unit that only gets 6 on the ocean side. After talking to the repairman I couldn’t help but to think about two things: (1) all of the home owners filing warranty claims; and (2) all of the renters demanding reimbursement for rental fees for having to “sleep” in 86 degree heat.
In conclusion, I left my hammock behind with a pensive look upon my face and deep in thought. Last week it occurred to me that my vacation closely resembled that of Jack Chester in 1985. John Candy played Chester in one of my favorite movies from the 1980′s, Summer Rental. I am wondering if the manufacturer of that plastic air cast is still around? My foot still hurts after a week’s worth of particularly spirited games of Bocce!

The Perils of "Free" Experts and Their Testimony

Oftentimes, practitioners will get lazy. They will seek to use the treating physician as the expert in their case. This is typically the case when the issue of causation seems clear. However, intuition and surmise are not enough to survive a summary judgment motion . . . at least not in the federal courts. In a recent opinion, the United States District Court for the Middle District of Georgia granted the defendant’s motion for summary judgment. In Williams v. Mast Biosurgery USA, Inc., No. 7:08-CV-114(HL), 2010 WL 2104955 (M.D. Ga. May 24, 2010), the court found that the plaintiff’s case must be dismissed for her failure to present evidence that the product was defective.

The plaintiff in Williams had undergone an exploratory laparotomy procedure conducted by Dr. David W. Adcock, II. Williams at*1. The purpose of the procedure was to remove adhesions that had formed after a prior surgery. Id. During the procedure, Dr. Adcock utilized a product, SurgiWrap, to “prevent future adhesions and to enhance Plaintiff’s likelihood of conception.” Id. Approximately two months after this procedure, the plaintiff developed pain in her sides as was admitted to the hospital whereupon a colonoscopy revealed the plaintiff had a perforated colon. Id. The physician that performed the procedure to repair the plaintiff’s perforated colon, “discovered and removed several pieces of ‘pliable’ plastic.” Id. The plaintiff then brought suit against the manufacturer of SurgiWrap upon a theory of strict liability. She contended that the product was defective since it did not properly dissolve inside her body. Id. On the issue of causation, the plaintiff sought to utilize Dr. Adcock (the physician that utilized the product at issue during the first surgery), Dr. George E. Yared (the physician that performed the colonoscopy), Dr. Robert Brown (the physician that repaired her colon) and Dr. Robert Nelms, Jr. (the pathologist that examined the removed pieces of plastic from the plaintiff’s body) to establish that the removed pieces of plastic were in fact SurgiWrap and that the product was defective. Id.

The defendant filed a Motion to Exclude Plaintiff’s Expert Testimony, and these physicians were prevented from testifying regarding the identification of the product and whether the product failed to operate as intended by the manufacturer. Furthermore, three of the physicians were prevented from testifying on the issue of causation. Id. The court essentially found that these physicians did not have the requisite familiarity with the product at issue in order to testify that the product was defective and that the alleged defect caused the plaintiff’s injury. Id. at*1-2.
There are multiple lessons to be learned from this case. First, if you represent a plaintiff in a products case you should be wary of settling for the treating physicians to establish the prima facie case. Second, and most importantly, if you a representing a manufacturer don’t give up so easily. The physician that is trained to utilize your surgical device may not be qualified to sufficiently identify the product, much less testify that it is defective. Daubert challenges to treating physicians are always worth the effort.

North Carolina Court of Appeals on Product Modification/Alteration

Picture this: you represent a major automotive manufacturer in a products liability claim. On the eve of trial, your motion for summary judgment is granted, booting two of the plaintiffs from the case. Time to break out the bubbly, right? To borrow the phrase from my favorite football pundit, “Not so fast, my friend!” This is especially true if you are in North Carolina and you have an affirmative defense of modification under North Carolina General Statute 99B-3.

Last week, the North Carolina Court of Appeals analyzed the language of this statute which outlines the affirmative defense of modification or alteration of a product in Stark v. Ford Motor Co., No. COA09-286, 2010 WL 1959851 (N.C. Ct. App. May 18, 2010) [PDF]. In Stark, the case was originally filed in the name of all of the members of a family. The parents’ claims, along with the claims of one of the children, were dismissed pursuant to the defendant’s motion for summary judgment. Stark at *2. The only plaintiffs remaining in the case at the start of the trial were Cheyenne Stark (age 5 at the time of the accident) and her brother Cody Stark (age 9 at the time of the accident). Id. The minor plaintiffs were injured when their parents’ vehicle allegedly and unexpectedly accelerated while the mother was operating the vehicle in a parking lot. Id. The remaining plaintiffs’ theory was that their injuries were enhanced by an alleged design defect with the seat belts of the vehicle. Id.

The defendant asserted the affirmative defense of “Alteration or Modification of Product” available under N.C. Gen. Stat 99B-3. Specifically, the defendant argued that Cheyenne Stark had the shoulder belt behind her back at the time of the accident and thus the alleged design defect of “film spool” could not have been the cause of her injuries. Id. at *2. At the end of the trial, the jury returned a verdict finding the defendant “act[ed] unreasonably in designing the 1998 Ford Taurus and its component parts, proximately causing enhanced injury to Cheyenne Stark.” Id. at *3. However, the jury also found that Cheyenne’s enhanced injuries were caused by an alteration or modification of the vehicle. Id. Finally, the jury found that the defendant’s product did not cause the enhanced injury of the other minor plaintiff, Cody Stark. Id.

On appeal, the plaintiffs presented two arguments. First, since Cheyenne Stark was only 5 years old at the time of the accident, she was legally incapable of negligence and therefore unable to foresee that any modification or alteration could proximately cause her injury. Id. at *5. Second, the plaintiffs rebutted the defendant’s argument that Cheyenne’s parents modified the seat belt by putting the shoulder belt behind her back by relying on the statutory language that the modifier must be a party to the action. Id. at *6.

As to the plaintiff’s first argument, the court reasoned that the alteration or modification of a product must be the proximate cause of the injury in order for the defense to apply. As such, the court then engaged in a “foreseeability” analysis and pointed to longstanding North Carolina case law which held that children under the age of 7, as a matter of law, are incapable of negligence. Id. at *5. Thus, the court reasoned that under the appropriate standard of care for a child under the age of 7, the “…[d]efendant is unable, as a matter of law, to prove the requisite element of foreseeability inherent in the proximate cause portion of its N.C.G.S. 99B-3 defense.” Id. Since the defendant would be unable to establish proximate cause, the defense was unavailable as to any alleged modification or alteration performed by Cheyenne Stark herself.

With regard to the plaintiffs’ second argument, the court essentially applied the rules of statutory construction and held that “the plain language of N.C.G.S. 99B-3 states that he entity responsible for the modification or alteration of the product must be a party to the action in order for the defense to apply.” Id. at *7. The court recognized that the requirement that the modifier or alterer be a party to the case was an issue not previously determined by the courts in North Carolina. Therefore, the affirmative defense available under N.C. Gen. Stat. 99B-3 is only available if the one that modifies or alters the product is a party to the action. Which begs the question: was it really party time when the parents were kicked out the case shortly before the trial began? To be fair, hindsight is 20-20.

The Tylenol Recall

Just in time for the height of the spring allergy season, a voluntary recall was announced on April 30, 2010 for numerous over the counter allergy treatment medications and pain relievers produced by McNeil Consumer Healthcare. This is the second major recall for Tylenol products this year. As you may recall, in January, there was a recall of the adult pain reliever due to concerns about mold. The products recalled were for children and infants which has created somewhat of a panic. McNeil’s most recent press release detailed the reason for the new recall:
McNeil Consumer Healthcare is initiating this voluntary recall because some of these products may not meet required quality standards. This recall is not being undertaken on the basis of adverse medical events. However, as a precautionary measure, parents and caregivers should not administer these products to their children. Some of the products included in the recall may contain a higher concentration of active ingredient than is specified; others may contain inactive ingredients that may not meet internal testing requirements; and others may contain tiny particles. While the potential for serious medical events is remote, the company advises consumers who have purchased these recalled products to discontinue use.

As can be seen, McNeil has cited quality control standards as being the reason for the recall. The buzz in the blogosphere and in the online news outlets references the presence of bacteria in at least one facility. At this point, it appears that the concerns are not as dire as the buzz would like to portray them. In this report from the Associated Press, Deborah Autor, director of the Food and Drug Administration’s drug compliance office, was quoted as stating that the risk, at this point, to consumers was “remote.” What may eventually come of the recall is too hard to predict at this point. However, with the FDA considering additional steps in the investigation, this is definitely an issue that we will need to continue to monitor. A complete list of the products that were involved in the most recent recall can be found here.

What In The Name Of Subrogation, Equitable Indemnification and Contribution Is Going On Here?

Often, when talking to clients, a practitioner will interchangeably use words like “subrogation,” “contribution,” or “indemnification” to console a client about a loss that they are facing with a pending lawsuit or claim. However, these words are not as synonymous as some think they are. Although each term stands for the proposition of “don’t worry, we’ll get somebody else to help pay for this,” courts will carefully scrutinize whether each claim is viable in a particular situation.

Consider the recent decision in White Elec. Servs., Inc. v. Franke Food Servs., No. 09-CV-0504-CVE-PJC, 2010 WL 1542575 (N.D. Okla. Apr. 15, 2010). The case arose from an underlying lawsuit brought by Sarah Austin against an electrical contractor, White Electrical Services, Inc. Austin alleged that she received an electrical shock when she attempted to plug in a food preparation table while working at McDonald’s. Id. at *1. White settled with Ms. Austin and then brought suit against Franke, the alleged manufacturer of the food preparation table. Id.

Franke was not a party to the underlying lawsuit filed by Ms. Austin. Id. White alleged that the table was defective and that the table caused Ms. Austin’s injuries. As such, White sought to recover all funds paid to Ms. Austin from Franke. White asserted multiple claims against Franke including products liability, contractual indemnity, subrogation, equitable indemnity and contribution. Id. at *2. White apparently waived its claims of product and contractual claims. The court found that since White had not used the term “subrogation” in its complaint, it did not assert a subrogation claim. Id. When dealing with the claim of equitable indemnity, the court’s analysis was quite sound. That is, the court found that the right to indemnity is based upon a legal relationship between the parties. White asserted that since Franke was strictly liable to Austin, it was entitled to indemnity. The court disagreed and stated that in a products situation, a distributor may bring a claim for indemnification against the manufacturer of a defective product based upon the manufacturer’s duty to the distributor. Id. In this case, White was not a seller of the allegedly defective table. White was not in the chain of distribution whatsoever. The court held that a products liability theory does not supply the required legal relationship between White and Franke. Id. As such, White’s claim for equitable indemnification failed as a matter of law.

Finally, the court analyzed White’s claim for contribution and found that contribution “represents a sharing of joint and several liability by providing for proportional reimbursement from other parties who are liable to the plaintiff.” Id. at *3. Since there was at least a possibility that both White and Franke could have been jointly and severally liable to Ms. Austin, the court allowed for White’s contribution claim to go forward. The moral of this case is that practitioners must exercise caution when using seemingly synonymous terms in any document filed with the court.