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!

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.

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.

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.

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.

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.