Abnormal Use at the 2011 DRI Annual Meeting in DC

We here at Abnormal Use will be well represented this year at the 2011 DRI Annual Meeting, held this week,  October 26th-30th at the Marriott Wardman Park Hotel in Washington, D.C.  Not only does our own Stephanie Flynn plan to be in attendance, but multiple other members of our firm will attend as well.  This is not surprising given the broad appeal of the DRI Annual Meeting, which will include discussions on substantive practice areas including, of course, products liability.  Not only will there be some high profile speakers on the agenda, but as always, the event is a good place to learn the tricks of the trade and meet the movers and shakers within the DRI organization.

The DRI’s Products Liability Committee will host a business meeting and substantive CLE program, which is scheduled for Friday, October 28th, from 8:30 a.m. – 10:30 a.m.  The CLE will address strategies for handling the defense of aggregate consumer fraud claims, particularly the requirement that each plaintiff establish individual causation, a traditional rule that some courts have not applied in such suits.  Our own Stephanie Flynn, as the Annual Meeting Liason for the Toxic Torts & Environmental Law Committee (TTEL) will cover the business meeting and introduce the CLE presentations given by the TTEL.  Alas, the TTEL is scheduled at the very same time as the Products Liability Committee’s presentations, so Stephanie won’t be able to make it to both.  Other blockbuster presentations include such topics as the over-criminalization of business conduct by the government (something felt broadly across the business spectrum and in a wide array of industries), technological changes in jury trials in the 21st century; and, most intriguing, the implications of genetic mapping to determine individual susceptibilities of exposure to products or toxic substances.  These events will be followed by multiple networking opportunities, including a networking reception at the Newseum, the world’s most interactive museum!

If any of you, our dear readers, are also attending, please say hello! We would love the opportunity to get to know you. For those of you who can’t join us this year, keep an eye out for updates from us on the exciting presentations and developments coming out of the Annual Meeting.  With the caliber of speakers on hand, we are sure not to be disappointed!  Hope to see some of you there!

Could it be true? Is there actually some good news to report on the employment front?

With the economic downturn gripping the nation, it’s not surprising to learn that recruitment and retention of minority lawyers stalled, or even took a step backward, in 2009. However, there may be some hope yet glimmering on the horizon, both for economic recovery in the legal profession and for minority lawyers in particular, who were hit disproportionately hard by the failing economy. Vault.com, a source for employer rankings, ratings and insight into multiple industries, including the legal industry, has partnered with the Minority Corporate Counsel Association (MCCA), a leading advocate for the hiring, retention and promotion of minority attorneys, to compile and post the results of this year’s Law Firm Diversity Survey. The findings can be perused in the Law Firm Diversity Database, which provides data on over 300 law firms, showing how well firms have been able to develop and sustain a diverse workforce.

The good news is that, while overall hiring remained below 2007 levels, there at least appears to have been some improvement in the numbers as compared with 2010, and firms also seem to have been able to retain more of their attorneys. As for minorities, their hiring and attrition levels returned to pre-recession levels, with the numbers of minority equity partners growing. In fact, the percentage of minority equity partners has grown to its highest rate (6.29 percent) since 2003 when the Law Firm Diversity Survey was first launched. With the never ending barrage of bad news on the economic front, it’s refreshing to learn of some positive momentum, which we hope continues.

Of course, the picture is still not completely rosy. The path to partner status remains an uphill battle for women and minorities, in particular. Rather than promoting from within, more law firms found new partners outside of their own associate ranks through lateral hires. Not only did more firms gain partners via lateral moves but, of those associates who did make partner, the majority were while males. That fact remains despite the ever increasing numbers of women and minorities in the law firm population. In fact, women and racial minorities together have made up more than half of law firm associates over the last eight years. Yet, partnership ranks remain dominated by white males, who make up more than 75 percent of partners and more than 78 percent of equity partners.

We are hopeful that the findings on partnership do not represent a lack of appreciation of the importance of diversity among the law firm ranks. Attorneys attending many of the national conferences, whether they be those sponsored by the ABA, DRI, or other organizations, have no doubt heard diversity presentations.  These seminars  highlight how corporate clients value diversity not only within their own ranks, but in the ranks of any vendors with whom they choose to do business, including their law firms. One message we have heard loud and clear: it is  important to demonstrate diversity by showing who you have on the payroll but also by ensuring that minorities are an integral and active part of the practice. We have certainly found that diversity offers an opportunity to benefit from countless advantages, from new attitudes to increased creativity (just to name but a couple).

We are glad to see that Vault.com and MCCA have continued to closely monitor these developments and will look forward to checking back in after 2011 draws to a conclusion with some optimism that we have continued to move in the right direction.

The Abnormal Use Review of the ABA Joint CLE Seminar in Colorado

This past weekend, the ABA Section of Litigation once again held a successful joint CLE seminar of the Environmental, Mass Torts and Products Liability Committees. The destination was certainly a great attraction. Who can beat Aspen, Colorado and its beautiful slopes (not to mention that the Winter X Games 15 were held this very same weekend!). The conference featured broad and familiar topics (Medicare Secondary Payer reporting and repayment obligations – now a staple at all conferences) but also specific products liability updates.

The Products Liability Committee held two break-out sessions, the first of which was devoted to medical monitoring damages. The panel presentation on this topic was moderated by Rudy Perrino of Fulbright & Jaworski, L.L.P., and included speakers Scott DeVries of Winston & Strawn, L.L.P. (to provide the defense perspective), and Andrew J. “Duke” Maloney, III, of Kreindler & Kreindler, L.L.P. (to provide the plaintiff’s perspective). Whereas medical monitoring damages have not really been addressed in South Carolina, they have come into play in many other states, with the current majority refusing to recognize them. In essence, medical monitoring damages are those that could be awarded to a plaintiff seeking to monitor the long-term effects of an injury or residual effects of exposure to chemicals, radiation or pharmaceuticals, resulting in an increased risk of developing disease or injury in the future. The issue presents some challenges for both parties to litigation and the courts, particularly in the context of alleged toxic exposure that initially does not result in evident injury.

From a defense perspective, the number of plaintiffs could become quite large, imposing a heavy expense over an extended period of time. Further, if a defendant agrees to pay for long-term medical monitoring damages, the defendant is essentially building an apparatus to allow a plaintiff to potentially come back for additional damages if or when the plaintiff develops some sort of disease. As the plaintiff will see it, the defendant has been paying to monitor him or her for disease and, if they indeed develop disease (regardless of whether it was actually caused by the prior exposure versus some alternative cause or whether that plaintiff would have developed the disease without the exposure), that plaintiff has a basis to come back to the defendant. Moreover, a defendant does not want to be required to pay for regular medical care and physical exams that an individual should be seeking anyway. Additionally, there are the side effects that could develop from the testing itself (such as the increased risk of developing cancer from having a yearly MRI for instance, if such a procedure were a part of the recommended monitoring).

From the plaintiff’s perspective, a tort has already occurred, and the plaintiff deserves to be monitored for future injury, should that plaintiff choose to do so. If there is an increased risk of disease as a result of the testing itself, that risk should be one decided by the plaintiff. Additionally, the plaintiffs’ bar suggests that their clients still must prove that the disease that has developed was, in fact, caused by the prior alleged toxic exposure. Of course, the concession that causation will still be on the table does not alleviate the concerns of the defense bar. The very fact that a plaintiff has previously been awarded medical monitoring damages to detect the development of the very type of condition caused by the prior exposure bestows upon the plaintiff some type of litigation advantage. Indeed, it would be nearly impossible for a defendant to take the position that the disease is idiopathic in light of the past monitoring for that very condition.

The issue is bound to present difficult issues for the courts. For instance, what if a state demands evidence of physical injury in order for a plaintiff to receive an award of medical monitoring damages, an expert establishes that there were subcellular changes that will make the plaintiff more susceptible of developing cancer (even though there is no evident injury at present), and the plaintiff later develops cancer? A defendant, understandably enough, is likely to argue that the plaintiff is barred by the statute of limitations. The plaintiff, through an expert, already made the case for the injury in order to obtain the medical monitoring damages in the first place. Then there is the issue of what care should comprise the medical monitoring and who should conduct it. Medical professionals often don’t agree on what tests should be performed to check for various disease and how often they should be done. Moreover, the plaintiff’s and defense attorneys are very likely not going to trust the other side to select the care providers.

Overall, the issues surrounding medical monitoring made for a very interesting debate. The presenters believe that the issue will be a developing one that litigators will eventually encounter, and the plaintiff’s bar, at least, believes that the trend will be to allow such damages. A prime example is the recent federal legislation to allow medical care for those who worked at Ground Zero following the September 11 terrorist attacks. Whereas federal courts have rejected medical monitoring claims absent physical injury, the legislation circumvented that common law in handling this high-profile issue. We will be interested to watch the development of this issue over the next few years and see if the prediction of an increase in such awards comes to fruition.

We could not close out this report without mentioning friend of the blog James Beck, one of the authors of the Drug and Device Law Blog. He spoke at this seminar on new developments in litigation, particularly on the American Law Institute’s new Principles of the Law of Aggregate Litigation. He has a commanding presence as a speaker and gave an enjoyable presentation.

Abnormal Use at the ABA Joint CLE Seminar in Colorado

We here at Abnormal Use are sending one of our own – Stephanie Flynn – to this year’s Joint CLE Seminar for the Environmental, Mass Torts and Products Liability Committees held by the ABA’s Section of Litigation. This year, the Joint CLE Seminar is being held at the Silvertree Hotel Conference Center in Snowmass Village, Colorado, one of two favorite snowy destinations for this annual conference. The conference begins tonight with a welcome reception for all attendees and extends through Saturday with substantive presentations by all of the committees.

As we discovered last year, this conference presents great opportunities for networking and becoming more involved in these worthwhile committees. In particular, we are looking forward to the break-out sessions for the Products Liability Committee, which will include a program devoted to understanding medical monitoring damages. This year’s discussion will include the state of the law, scientific understanding of disease processes, availability of testing for early detection, and risk/benefit analyses that can be employed by a court tasked with determining whether to award such damages. Then, there is a most informative Products Liability Year in Review, a presentation that we very much enjoyed last year. This presents a great opportunity to review the good, the bad, and the ugly from 2010 when it comes to products liability law.

If any of you, our dear readers, are also attending, please say hello! We would love the opportunity to get to know you. As for those of you who will not be able to join us in Colorado this year, keep an eye out for updates from us on the products liability presentations.

Manufacturer Remains On the Hook in EIFS Litigation in Texas

Since the 1990s, EIFS litigation has been a thorn in the side of the construction and insurance industries. Improper installation of EIFS (Exterior Insulation and Finishing System), sometimes called “synthetic stucco,” on homes across the United States resulted in a tremendous amount of litigation. Class action suits and individual litigation have been plentiful, with defendants often pointing the finger at each other as they ferret out responsibility for who must pay for the damages.

The Texas Supreme Court recently weighed in on some of these issues in Fresh Coat, Inc. v. K-2, Inc., —S.W.3d —-, No. 08-0592, 2010 WL 3277130 (Tex. August 20, 2010). The Court addressed the duty of a synthetic stucco manufacturer to indemnify a contractor that installed the stucco against claims of more than 90 homeowners who sued for structural damage, termite problems, and mold. The defendants settled the litigation with the homeowners, and the case proceeded to trial on the various claims that the defendants brought against each other. The jury awarded judgment to the contractor, Fresh Coat, for all damages requested against the manufacturer, K-2, Inc., which included indemnification for settlements that Fresh Coat made to the homeowners and to the homebuilder. The intermediate court of appeals in Beaumont affirmed the decision, with the exception of the amounts that Fresh Coat paid to the homebuilder. Both K-2, Inc. and Fresh Coat appealed.

In its appeal, K-2 urged the Supreme Court to rule that Fresh Coat, as a contractor for the installation of the synthetic stucco, did not qualify as a “seller” and that EIFS is not a “product,” such that K-2 would not have indemnity obligations arising under Chapter 82 of the Texas Civil Practices and Remedies Code. K-2 claimed that products placed into the stream of commerce and integrated into a house are transformed into real property and no longer retain their status as “products.” The Court disagreed, holding that a product is something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption. Here, EIFS was a synthetic stucco system made of component parts manufactured by K-2, that it was placed into the stream of commerce, and it was used in construction of homes.

K-2 further argued that Fresh Coat, as a contractor that obtained and installed EIFS, was not a seller. If Fresh Coat could be characterized as a service provider only, K-2 would not have a statutory requirement to indemnify. The Supreme Court held that Chapter 82′s definition of “seller” neither excludes a seller who is also a service provider nor requires the seller to sell only the product. The Court commented that its approach was consistent with the Third Restatement of Torts, which recognizes that a product seller may also provide services. As Fresh Coat provided the EIFS system and the services to install it, Fresh Coat qualified as a seller.

The Texas Supreme Court also ruled that the manufacturer’s statutory obligation to indemnify covers a settlement payment made by the contractor to the homebuilder, even where the contractor was independently obligated by contract to indemnify the homebuilder. The only exception under Civil Practices and Remedies Code Section 82.002(a)) to a manufacturer’s duty to indemnify sellers for losses arising out of a products liability action is for losses caused by the seller’s negligence, intentional conduct or other act or omission for which the seller would be independently liable. Because Fresh Coat made itself independently liable by contract, K-2 contended that it should not have to indemnify it. The Court held none of the statutory exceptions applied, leaving the manufacturer to bear the full loss.

South Carolina Adopts the Risk-Utility Test as the Exclusive Test in Products Liability Design Cases

In a recent landmark decision, the South Carolina Supreme Court brought some welcome clarifications its products liability jurisprudence. Branham v. Ford Motor Co., — S.E.2d —-, No. 26860, 2010 WL 3219499 (S.C. Aug. 16, 2010). That case centered around a 2001 accident involving a 1987 Ford Bronco. The driver was transporting several children, none of whom were wearing seat belts, to her house. The driver took her eyes off of the road at which time a tire left the roadway. The driver overcorrected, causing the vehicle to roll over, ejecting the Plaintiff’s young son. Plaintf filed his lawsuit against Ford and the driver on behalf of his son in the Hampton County, Carolina a venue previously ranked as a “judicial hellhole.”

Of particular note was the court’s decision to join the majority of States that employ the risk-utility test as the exclusive test to be used in a products liability design case. For a plaintiff to successfully advance a design defect claim, he must show that the design of the product caused it to be “unreasonably dangerous.” Under the risk-utility test, this is accomplished by considering numerous factors, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger. It also comes with the attendant requirement that Plaintiff show a feasible alternative design. The court rejected Plaintiff’s position that he could prove a design defect by resort to either the risk-utility test or the consumer expectations test, the latter of which is met by showing that the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product. That test is more appropriately used for manufacturing defect cases. For design defects, on the other hand, the focus is properly on whether the product was made safe enough, or whether the manufacturer’s failure to adopt a particular design feature proposed by a plaintiff was, on balance, right or wrong, which is the core concern of the risk-utility balancing test.

The court was careful to point out that merely because a product can be made safer, does not mean that a design defect case should see the light of day in front of a jury. To the contrary, most any product can be made safer, and there is danger incident to the use of any product. Hence, a plaintiff must present evidence of a design flaw, show how plaintiff’s alternative design would have prevented the product from being unreasonably dangerous, and include considerations of cost, safety and functionality associated with the alternative design. Here, Plaintiff had actually met the standards set forth under the risk-utility analysis such that the case did not warrant reversal on this issue. However, there were other factors that led the court to reach its decision to reverse and remand for a new trial.

Two evidentiary rulings and the inflammatory nature of Plaintiff’s counsel’s closing argument led to the decision to reverse and remand. First, the court considered introduction of post-manufacture evidence. Whether a product is defective must be measured against information known at the time the product was placed into the stream of commerce. Hence, post-manufacture evidence, or evidence that was not known or available at the time of distribution, is generally inadmissible. Plaintiff was described by the court as “unrelenting” in the pursuit of post-distribution evidence to the point that the error of the lower court in admitting such evidence was not considered harmless. The court noted the policy benefits of such a rule to encourage the continued testing and evaluation of products after initial manufacture and not judge the manufacturer through the lens of hindsight.

Second, the court considered evidence of similar incidents. Such evidence is admissible where there is a substantial similarity between the other incidents and the accident in question, tending to prove or disprove some fact in controversy. Because this type of evidence may be “highly prejudicial,” there is a stringent standard for admissibility requiring a plaintiff to present a factual foundation for the court to determine that the other accidents were substantially similar to the accident at issue. Additionally, such similar incidents must pre-date the manufacture of the product. Here, introduction of Plaintiff’s voluminous evidence of post-manufacture rollover data was error even where the accidents were substantially similar.

Finally, as to Plaintiff’s closing argument, Plaintiff relied heavily on inadmissible evidence, inviting the jury to base its verdict on passion rather than reason. Plaintiff wanted Ford to be punished for harm to both Plaintiff and others, reciting numerous times the number of people killed or severely impaired each year in Ford rollover accidents and contending that Ford found the numbers to be acceptable. Inviting a jury to punish a defendant for other nonparties or strangers to the litigation is forbidden.

Another significant clarification is the court’s holding that, where one claim is dismissed and the dismissal rests on a common element shared by the companion claim, the companion claim must also be dismissed. Here, Plaintiff had alleged claims of both negligence and strict liability in tort. Regardless of the theory on which Plaintiff seeks recovery, he must prove (1) that he was injured by the product, (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user. Over and above this, a negligence theory merely imposes the additional burden on a plaintiff of demonstrating that the defendant failed to exercise due care in some respect, placing the focus on the manufacturer’s conduct. Because the trial court dismissed the strict liability claim finding the seat belt sleeve was not in a defective condition unreasonably dangerous as a matter of law, it should have also dismissed the companion negligence claim. The fault-based component of negligence is simply of no consequence where there is no showing that the product was defective and unreasonably dangerous.

Not surprisingly, the decision is already the subject of blog commentary. Our friends at the South Carolina Products Liability Law Blog have authored a list of “Ten Takeaways from Branham v. Ford Motor Company“, with which we here at Abnormal Use agree.

Take Heed While Diving into the Summer

With summer in full swing and extreme temperatures being felt across the nation, we thought it would be an opportune time to remind those who would seek refuge from the heat in an above-ground or shallow pool to remember NOT TO DIVE! Without fail, news stories abound every year about tragic accidents and injuries that occur when people cannot resist the temptation to dive head-first into the water, either without knowing or simply disregarding its depth. One study reported by ABC News / Health in August of 2008 found that 6,500 adolescents alone ended up in emergency rooms each year for diving-related accidents, averaging one injury per hour. Plaintiff Jennifer Sheehan, while not among the adolescent group, is now acutely aware of the life-long consequences that can result from failing to pay attention to the multiple warnings that were posted on and in an above-ground pool regarding the danger of diving into shallow water.

In the case of Sheehan v. The North Am. Mkting. Corp., —F.3d—-, 2010 WL 2598390 (1st Cir. June 30, 2010), Plaintiff brought a products liability action in Rhode Island against a swimming pool seller and manufacturer for negligence, strict liability, and breach of express and implied warranties, seeking to recover damages for injuries that she sustained after attempting to dive into an above-ground pool holding only 3 1/2 feet of water. As might have been anticipated, Plaintiff broke her neck, rendering her a quadriplegic. She claimed in her lawsuit that the pool was defective in its design. The lower court granted summary judgment to the defendants on the grounds that both Plaintiff’s proof of proximate cause was unduly speculative and that she assumed the risk of serious injury when she attempted the dive. The Plaintiff appealed to the First Circuit Court of Appeals. While the Court wavered on the issue of whether Plaintiff had set forth sufficient evidence in order to reach a jury as to proximate cause, the Court could not look beyond Plaintiff’s own actions in assuming the risk of her injuries.

The accident occurred on August 8, 2002, when Plaintiff was 32 years old. She and a friend had spent the afternoon at a restaurant and beach club, where they proceeded to have mixed drinks, beer and shots of tequila, before returning to the home owned by Plaintiff’s friend. At the home was an above-ground swimming pool that was 18 feet in diameter and only 4 feet high, holding water at a level of 3 1/2 feet. The pool was not surrounded by any decking, but only had a ladder over the edge of the pool that was used for entry and exit. The top perimeter of the pool was covered by a flat piece of aluminum coping that was approximately 6 1/2 inches wide and that served to connect the pieces of the pool wall and to prevent damage to the top surface of the wall. There was no dispute that it was not intended for standing or diving.

The pool actually contained four warning signs, one located on the coping by the ladder, two identical warnings located just below the coping and above the water line inside of the pool at various distances from the ladder so that they were visible to people within the pool, and additional warnings on each of the three slip-resistant ladder treads on the outside of the pool. The warnings all contained bold capital letters in red or black with some variation of the words “DANGER,” “SHALLOW WATER,” and “NO DIVING.” After playing in the pool for about 30 minutes, Plaintiff hoisted herself up into a sitting position and then to a standing position along the coping. She stood there for about 20 seconds before performing a shallow dive in which she aimed across the pool rather than downward. Plaintiff successfully completed the dive and admitted during her deposition that she knew that diving into shallow water could be dangerous because she could hit her head on the bottom. However, Plaintiff added that, under the circumstances, she believed that the only danger she was facing was scraping the bottom of the pool based on the manner in which she chose to dive. She also denied ever hearing of anyone getting hurt from diving into shallow water. Plaintiff’s friend jokingly scolded Plaintiff about her ability to read the warning signs, prompting them both to laugh.

Although Plaintiff was lucky during her first dive, her luck did not last when she attempted a second dive. Plaintiff followed the same routine in pulling herself up onto the coping. This time, however, Plaintiff lost her balance as she was attempting the dive, causing her to enter the pool at a steep angle, striking her head and causing a burst fracture of the C5 vertebra. Although Plaintiff denied feeling impaired from the multiple drinks that she had consumed before swimming, her blood alcohol level was estimated to have been between 0.169% and 0.178% at the time of the accident, which would result in outward signs of intoxication, including staggered gait, impaired vision and decreased reaction times.

Although the Court addressed Plaintiff’s alternative theories regarding proximate causation (that the coping was unstable and too narrow, such that she lost her balance, or, alternatively, that the coping should have been designed to prevent anyone from standing on it altogether), it ultimately elected not to resolve the difficult causation questions and to resolve the case solely on the grounds of assumption of the risk. Plaintiff argued that there remained genuine issues of material fact as to her appreciation of the risk of diving and that such disputes ordinarily involved questions of subjective knowledge that should be resolved by a jury. Here, however, the Court reiterated the often-repeated rule that, if the facts suggest only one reasonable inference, the issue becomes a question of law for the judge. Moreover, as to the risks associated with diving into shallow water in particular, the Court ruled that the activity is akin to those types of activities as to which no adult will be believed if he or she says that she did not know or understand the risks, a position reflected in the Restatement (Second) of Torts §496D, cmt. d. For Rhode Island, protestations of ignorance from an adult regarding the risks of diving into shallow water are deemed not believable. Rather, the danger of diving head-first into shallow water in an above-ground swimming pool was, or should have been, obvious to a 32 year-old woman of normal intelligence.

Plaintiff further could not avoid the outcome by arguing that the only risk that she subjectively considered was that she might scrape the bottom of the pool based on the way that she intended to dive. Where a person is presumed to know the risks of dangerous conduct, that person is charged with knowing all of the ordinary risks associated with the conduct. Plaintiff could not claim to have assumed only the risk of a perfectly executed shallow water dive. Further, Plaintiff’s argument that her intoxication should be taken into consideration was also rejected. She could cite to no law to support her position in that regard. A person who voluntarily becomes intoxicated is held to the same standard as if she were sober.

Based on the above, the First Circuit affirmed summary judgment in favor of the defendants. Although we can presume that people are aware of the risks of diving into shallow water, let this serve as an additional warning nonetheless.

The Ultimate Disguise Might Win a Halloween Costume Contest, But It Won’t Win Points With a Judge

In our practice, we have definitely encountered more than one deponent who, upon learning that his or her deposition was going to be recorded by videotape, was less than thrilled by the prospect. Fortunately for us, we have never seen someone like Joseph P. Bertand, a plaintiff who went to extraordinary lengths to avoid giving a deposition in his lawsuit. See Bertrand v. Yellow Transp., Inc., et al., No.: 3:08-01123, 2010 WL 2169499 (M.D. Tenn. May 28, 2010), . While Bertrand is an employment law case, we found his antics so amusing that we had to share.

Mr. Bertrand, acting pro se (which will be no surprise to anyone after reading the order issued by the District Court in this case), filed a litany of claims against the defendants arising from what he contended was his retaliatory termination from his employment with Yellow Transportation. He complained of racial discrimination, sex-based discrimination, national origin discrimination, violations of the Family and Medical Leave Act, defamation and sexual harassment. I feel certain that at the very outset of this lawsuit, there was little doubt that anything about his case would go smoothly. After Mr. Bertrand repeatedly tried to unilaterally notice depositions rather than consulting with opposing counsel as a courtesy, the Court issued an order requiring that the parties cooperate with each other in scheduling convenient dates for depositions. Pursuant to the order, and after consultation, Mr. Bertrand agreed to be deposed on October 6, 2009. Several days after receiving his deposition notice, however, Mr. Bertrand realized that it provided for the videotaping of his deposition, prompting him to notify defendants of his objection.

Mr. Bertrand was not satisfied with defendants’ explanation that they were allowed to take his deposition by videotape, and he filed a motion for a protective order against the videotaping, complete with 67 pages of documents. Among Mr. Bertrand’s objections were references to elusive “sealed agreements” that he had with defendants regarding the recording of depositions, suspicions that the defendants would post the video on the world-wide web for all to see, or even that defendants could steal his identity once they had his image. Despite multiple attempts to contact Mr. Bertrand without success regarding his motion and no showing of a reason why the deposition could not be videotaped, the Court ordered that his deposition proceed.

On October 6th, Mr. Bertrand dutifully appeared as scheduled, albeit wearing all black and several layers of clothing, with the outermost garment appearing to be a large nylon athletic top with a hood that he donned on his head. Mr. Bertrand also wore a large black, bushy wig covering his entire forehead down to his black sunglasses, a fake bushy mustache and a beard. In all, Mr. Bertrand’s face was completely hidden, with his disguise even impeding his ability to speak as he had to keep moving his false mustache out of his teeth. The only victory after 40 minutes of negotiations was to get Mr. Bertrand to remove his sunglasses. The deposition was suspended and later followed by a Motion to Dismiss filed by the defendants as a discovery sanction or, alternatively, for a Motion to Compel Mr. Bertrand’s deposition.

Mr. Bertrand’s response (no surprise here) told a very different story. He noted that the videotaped deposition might have been a pornography filming session masquerading as a court ordered deposition! He even claimed that the defendants’ attorney wanted to sexually harass him by begging Mr. Bertrand to remove some of his clothing and hair, which Mr. Bertrand claimed to take as unwanted sexual requests. Among his myriad of other excuses were complaints about the age and quality of the video equipment and that the lighting was extremely bright and caused heat-induced headaches.

While the Court did not dismiss the action at that time, it entered an order compelling Mr. Bertrand to appear for a videotaped deposition in the judge’s chambers on a mutually agreeable date within 30 days of the order. The next 30 days passed, however, without any contact with the Court to schedule the deposition in chambers, whereupon the defendants again filed a Motion to Dismiss. The Court learned that during that 30-day period, Mr. Bertrand filed five motions calculated to delay or thwart his deposition, including a motion to allow him to face away from the video camera and “blinding” lights to avoid the high heat, thermal radiation, electromagnetic radiation, and black body radiation and to protect his eyes from at least temporary retinal burn, welder’s flash and snow blindness. Another motion sought to prevent the defendants from setting the video to music or to filming in color. Further objections were based on health reasons, including high blood pressure and a non-cancerous growth on Mr. Bertrand’s eye. Naturally, he failed to explain how those conditions would impacted by a videotaped deposition.

Mr. Bertrand’s actions finally led to the dismissal of his lawsuit on May 28, 2010. The reasoning of the Court is instructive to practitioners encountering difficult litigants. The Court reasoned that the plaintiff had disobeyed multiple discovery orders and had abused the judicial process by filing multiple frivolous motions. The frivolous motions were held to be akin to abuse of the judicial process from the filing of frivolous lawsuits. Each of Mr. Bertrand’s filings had little to do with the merits of the case, but instead related to tangential issues.

While we are certain that the defendants and their counsel are now breathing a long sigh of relief, we would wager that they may not have heard the last of Mr. Bertrand. He certainly does not strike us as a quitter!

We often fondly reflect back on our own tales of strange encounters and unusual antics by opposing parties and do not tire of telling those war stories (Like, for instance, our deposition during which a widow proceeded to carry on a conversation with her husband’s ashes, which she brought with her in a duffel bag, and the time when a deponent proceeded to “diaper” an urn containing the ashes of a deceased pet monkey. Yes – Those are both true stories.) We are sure that defense counsel in Mr. Bertrand’s case will be telling this story for years to come. We know that we would.

A Wrinkle in the Love Affair with Botox?

Usually, a $15 million dollar verdict tends to raise my eyebrows. Therefore, in light of the recent decision in Dr. Sharla Helton v. Allergan Inc., CJ-2009-2171, District Court, Oklahoma County, Oklahoma, it is a good thing that I still have the ability to do that. However, the Plaintiff in that case, Dr. Sharla Helton of Oklahoma City, did not have that ability, thanks to her wrinkle-smoothing Botox injections. Rendered on May 11, this sizable jury verdict came following a three-week trial against Allergan Inc., a Botox manufacturer, after the Plaintiff, who was 47 years old, claimed that she suffered years of pain and weakness after receiving Botox injections.

The jury found Allergan Inc. negligent because the label on the product did not include enough information about potential side effects. The Plaintiff blamed Botox for causing double vision, breathing difficulties and years of constant pain in her hands, arms and feet. She further claimed that the disabling side effects eventually led her to sell her medical practice and step down as the medical director for an Oklahoma City hospital. According to the Plaintiff, the verdict was the “first set in making sure the public is aware of the actual risks of Botox. It’s a stepping stone to protect the public from what the company is hiding.”

So, what is the company hiding you might ask about the dangers of Botox? Nevermind that the official scientific name for Botox – Botulinum Toxin Type A – actually contains the word “toxin.” It is a neurotoxic protein. Also nevermind that Botulinum toxin has been identified by the CDC (Centers for Disease Control & Prevention) as the most lethal substance known to man. Potential use of the toxin as a biological weapon has been explored since the early 1900s! Fortunately for us, the toxin just doesn’t have the stability and capacity to be disseminated by open air over a large area. And Botox is, of course, a variation of the word “Botulism,” which I would venture to guess would be more recognizable to the general public at large.

With that said, how could it possibly be foreseeable to the Plaintiff that there could be some risk to injecting Botox into the body? Don’t get me wrong. I am certainly not against Botox therapies, whether for cosmetic use or particularly for its more valuable use to the benefit of patients with muscle and nerve disorders. Maybe my lack of sympathy stems from the fact that the Plaintiff in this instance was actually a doctor (albeit not a cosmetic specialist, but an obstetrician and gynecologist) and presumably would have greater insight into the medical procedure that she selected or, at a minimum, the wherewithal and resources to avail herself of the risks. Or, maybe it was also because it was not the first, second, third or fourth injection over two years that caused the problem. It was the fifth injection that Plaintiff claims did the trick and gave her botulism.

It is interesting that this verdict in a cosmetic use case follows a successful defense win by Allergan Inc. in a case arising from the death of a 7 year-old girl, who suffered from cerebral palsey and used the injections to relax clenched limbs. This is but one example that the sympathy factor does not always win the day. In any event, we have not heard the last of litigation against Botox. At the time that the Plaintiff’s case went to trial, there were 14 plaintiffs standing in line behind her. Allergan has, of course, vowed to appeal. Whatever the ultimate outcome of this or other cases, for the meantime, I will stick to the Pearl Cream.

Our First Milestone: 100 Posts

We here at Abnormal Use have officially hit our first milestone and are, as of today, 100 posts old. To commemorate the first of what we hope will be many such anniversaries to come, we pause to reflect on where we started, and what we have learned along the way.

It has been just four short months since we unveiled this products liability blog with a formal mission statement. Whereas we feel certain that blogging may come naturally to some, our first foray into the blogosphere was not without some trepidation. Naturally, we asked ourselves: Will there be sufficient source material? But we quickly learned that this was the least of our concerns. Fortunately for products liability bloggers, in the rapid, ever-changing world of litigation, there is rarely a day that passes without something newsworthy, whether it be a new court decision, an interesting verdict, a product recall (an augury of imminent litigation), or a story on a future Plaintiff’s new and “inventive” use of a product that, predictably, went awry. Needless to say, we have found plenty of cases and news items about which to post. We are also proud to have presented several original interviews with law professors in our series which we affectionately call Abnormal Interviews (more of which are to come in the future).

Branding ourselves the authors of an “unreasonably dangerous products liability blog,” we’ve also attempted to inject a bit of humor into our posts, at least every once in a while. We have, of course, enjoyed sharing our light-hearted Friday Links. We also hope that you will remember what, for us, became one of our most infamous posts. On February 3, just a few weeks into this enterprise, we posted what we fondly refer to as the the chicken sandwich post, a reflection on the Fourth Circuit’s opinion in Sutton v. Roth, L.L.C., a case that evolved out of yet another instance of a hot item becoming a dangerous instrumentality. Then, of course, we could not resist an April Fool’s Day post. In keeping with our food-related theme, we decided to reflect on whether a Snickers really satisfies (“Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds“). Whereas most of us here would agree that a Snickers bar does indeed satisfy (roasted peanuts, nougat, caramel and chocolate!), gone are the days when we as attorneys would actually be surprised to see a lawsuit that would seek to challenge what has been and still is a highly successful marketing campaign for Mars, Inc. (Just check out Betty White’s appearance in Snicker’s Superbowl commercial!). Apparently, the post did actually fool a few readers, as we received a missive or two asking if the post was, in fact, reality.

We cannot observe this anniversary without pausing to thank others in the blogosphere who have both supported and inspired us. Special thanks go to James M. Beck of the Drug and Device Law Blog and Walter Olson (of both Overlawyered and Point of Law) for their support.

This is not to say that the blog is always fun and easy. This site has now become a daily part of our professional existence – yet another generator of deadlines. Sometimes, it is a joy. Other times, though, it is simply one more item to check off of an already lengthy to-do list. Mark Herrmann (former author of the Drug and Device Law blog) warns of the perils of lawyer blogging in his recent article “Memoirs of A Blogger“). We’ve taken some of these concerns to heart, but we’ve also attempted to fashion a blogging infrastructure here that avoids some of the issue Herrmann presents. (Certainly, dividing the work amongst seven attorneys makes the task a bit less daunting.). But, in any event, we have been gratified and encouraged by the feedback that we have received and the knowledge that we have acquired throughout this project.

Despite this anniversary, we are only getting started. Thanks to all of you for visiting the site, and we look forward to bringing you much more products liability commentary in the future.