Happy Trails, Hans

2016 has only been here for a few short weeks. Unfortunately, along with Arctic blasts and birther campaigns, it’s brought the loss of several notable celebrities, including Natalie Cole, David Bowie, Alan Rickman, and most recently, Glenn Frey of The Eagles. All have commanded audiences for decades and their deaths surely will be a celebration of their lives and their contributions to all of ours. This blogger would like to focus on one of these great artists: Alan Rickman. An incredible character actor. A quiet, no-frills Brit who morphed into each and every role he played. In the days following his death, the headlines focused on Rickman’s role as Professor Snape in the Harry Potter film. A legendary role, no doubt. And a role within a movie series that has literally changed lives and joined the annals of great, generation-defining movies.

However, among the well-deserved headlines reporting his unfortunate passing, very few mentioned Rickman’s greatest role—Hans Gruber. That’s right. We’re talking Die Hard. We’re talking John McClane v. Hans Gruber, Good v. Evil, ‘Merica v. Germany. You get the picture. Rickman portrayed the German terrorist who leads his band of muscle men to take over a Los Angeles office building during the Christmas holidays. Without Hans, and ipso facto, without Rickman, would Bruce Willis’s John McClane have been so charming? We dare say no. Rickman lulls you in to his world; in fact, he makes you not completely despise Gruber until halfway through the movie. He’s suave, surprisingly good with a gun, and hypocritical in his lust for money and deceivingly good American an German accents, all the while continuing his façade of devoted political terrorism. If he weren’t so good at playing the villain, Han’s mix-up of John Wayne and Gary Cooper could be considered endearing.

In the end, it becomes personal for Gruber just as much as it was personal for McClane. Rickman digs deep in, by the way, his first ever action movie, and fights to the bitter end. Please don’t get us wrong. We’ll always pull for McClane, and he’ll always win, just ask Hans and his younger brother Simon. But as good as Willis is as the blue-collar, degenerate cop with a hangover and a penchant for saving the world, Rickman is equally good as the tailored, educated, and refined villain, calmly (and then not so calmly) being foiled by Mr. Cowboy.

If you haven’t seen this movie, watch it. If you have seen it, watch it again, often. And while you’re at it, say hello to Rickman’s other notable roles: Harry, the classic fool, the Sherriff of Nottingham, Colonel Brandon, and of course, Professor Snape. We’ll remember all of these. And after all this time, we’ll remember Hans and Rickman . . . always. Yippie-Ki-Yay.

Friday Links

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Above, you’ll find the cover of Aquaman #21, published not so long ago in 2013. As you can see, Aquaman is having a bit of difficulty trekking through a snowstorm. We’re not fans of Aquaman, actually. But this cover is relevant, of course, because of the arrival of the snowpocalypse. In fact, due to the inclement weather conditions in North Carolina and the Upstate South Carolina area, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. have closed our Charlotte and Greenville offices today, Friday, January 22. All other GWB offices (Columbia and Charleston) will remain open and operate on a normal schedule.

Rest in peace, Glenn Frey.

Don’t forget that the reboot of “The X-Files” arrives this weekend. Brace yourself for disappointment.

Our favorite legal tweet of late concerns a warning label:

Death Proof Cars by 2020?

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Before now, Death Proof was simply the title of an action-packed Quentin Tarantino thriller from 2007. Not anymore says Volvo! The engineers at Volvo have decided not to stop at fully-autonomous vehicles for which they accept full liability in the event of an accident. Volvo has now reportedly pledged that “[b]y 2020, no one will be killed or seriously injured in a new Volvo car or SUV.” Wow, this is a bold claim. What is more shocking, however, is that there are apparently already some vehicles which are “fatality-free.” Behold:

According to data from the Insurance Institute for Highway Safety, there are nine vehicle models — including the Volvo XC90 — in which no one in the United States has died in at least four years.

Apparently, the technology that inspires Volvo’s confidence is the autonomous driving technology intended to remove the possibility of human error from the driving equation. But alas, there is a caveat:

If someone really wants to hurt themselves, or is just really, really stupid… well, Volvo can’t do anything about that. But, assuming you’re not a suicidal maniac or a total idiot, in four years, you’ll be safer driving a new Volvo than you are climbing a ladder to screw in a light bulb.

Perhaps we are a bit jaded, but we would suggest that the prior paragraph would be more accurate if the “ifs” are changed to “whens.” It may also be difficult to assume away “suicidal maniacs.” So what does this mean for the legal field? It may be that there will be less driver versus driver automobile accident cases litigated, and that some portion of those will be replaced by product liability cases against the automotive manufacturers.  Apparently, we will know one way or the other by 2020ish.

Keeping Up With the Kardashians: EOS Lip Balm Edition

Fueled by attractive containers and endorsements by high-profile celebs like Kim Kardashian and Britney Spears, EOS (Evolution of Smooth) lip balm has created a fad out of keeping one’s lips chap-free. Need proof? Walk through the halls of an elementary, middle, or high school or the grounds of a college campus, and you will undoubtedly see EOS lip balm in the hands of many. Unfortunately, all is allegedly not well with EOS lip balm, however. According to a new class action lawsuit, when you walk through those same school halls, you will also see rashes and blistered lips. Not exactly EOS’ target result.

As reported by Time, Plaintiff Rachel Cronin has filed a class action suit in California against EOS, alleging that the lip balm causes lips to crack, bleed, and blister. Cronin alleges that her lips felt like “sandpaper” hours after using EOS lip balm. She then re-applied the product to “smooth” her skin, but it caused her lips to crack, flake, and bleed. The next day, she allegedly had blisters and rashes around her mouth. Those symptoms allegedly lasted for 10 days. The EOS packaging claims to be 95 percent organic and able to keep lips “moist, soft, and sensationally smooth.”

In an interview with the Huffington Post, Dr. Marie Jhin, a San Francisco dermatologist, opined that the reactions to EOS lip balm are allergic contact dermatitis, possibly in response to Vitamin E contained in the product. Dr. Lauren Ploch, a New Orleans dermatologist, stated that while she did not know what is causing the symptoms for EOS users, many or her patients are allergic to natural oils such as beeswax, a component of EOS lip balm.

This will be an interesting suit to watch as it unfolds. If this is really an issue about Vitamin E or beeswax, EOS is certainly not the only lip balm manufacturer to utilize those ingredients. It is just the only one to have megastar endorsements.

What is EPA’s Superfund, and What Does It Have To Do With CERCLA, PRP’s, and NPL’s?

Superfund

The recent lead-contaminated water crisis in Flint, Michigan has led to discussions regarding water quality, pollution, and environmental regulations. We have learned from discussions in which we have been involved that the general public (and most lawyers) are unfamiliar with many of the issues surrounding large environmental disasters. Nor are most people with the action(s) taken by the U.S. government to clean up environmental contamination. For example, those who are not involved with toxic tort litigation may have heard of EPA’s Superfund and CERCLA, but may not know what these terms mean.  The following is a brief overview of EPA’s Superfund program, for those who are interested.

After a series of large environmental disasters, including Love Canal in 1979, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),  which “provides a Federal ‘Superfund’ to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment.” The EPA was also granted the authority to seek out potentially responsible parties (PRP’s) and attempt to force them to carry out cleanup efforts and/or to fund cleanup efforts. According to the United States Environmental Protection Agency (EPA), “EPA’s Superfund program is responsible for cleaning up some of the nation’s most contaminated land and responding to environmental emergencies, oil spills and natural disasters. To protect public health and the environment, the Superfund program focuses on making a visible and lasting difference in communities, ensuring that people can live and work in healthy, vibrant places.” The EPA was reauthorized to carry out these functions in all fifty states with the passage of the Superfund Amendments and Reauthorization Act (SARA) of 1986.

When the EPA becomes aware of “known releases or threatened releases of hazardous substances, pollutants, or contaminants” at a site, the site is placed on the National Priorities List (NPL).  PRP’s are then identified and pursued by the EPA.  Various defenses are available to PRP’s.  The EPA has been involved with thousands of Superfund sites all over the country, a list of which is located here.  Apparently, some of the most common contaminants at Superfund sites include lead, asbestos, dioxin, and radiation, generally.

Martin Luther King Day

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the legacy and leadership of Dr. Martin Luther King, Jr. In honor of this day, our offices are closed today. Let us all revisit his “I Have A Dream” speech on this occasion.  You can find the full text of it here.

Friday Links

What a week. First, we lose David Bowie, and then, Alan Rickman. We here at Abnormal Use are fans of both of those talented artists, and we mourn their loss. A sad week for music and film.

The website Charlotte Beer turned five this week. We congratulate its author, Daniel Hartis, on this occasion. We’ve interviewed Daniel twice, once in 2013, and again in 2014.

No, we have not yet watched “Making A Murderer.”

Our favorite legal tweet of the week involves syrup. Make certain you spell it correctly.

DRI Product Liability Conference

As we do, we here at Abnormal Use will be attending the annual DRI Product Liability Conference. This year, it’s in at the Marriott in New Orleans from February 3 through 5. We expect that it will be a quite a program. We’ve not yet decided if we’ll be live tweeting the event, although you can certainly expect a few tweets and updates from our editor, Jim Dedman (who also serves as the chair of the DRI Product Liability Committee’s Newsletter section). If you’d like to join us at the conference, you can find the registration information here. We’ll be posting a bit more about the conference before we make the trek, so look out for future updates here in the coming weeks.

E-Filing Pilot Program to Expand to Sumter and Lee Counties on January 19, 2016

If you’ve been paying attention, South Carolina is experimenting with e-filing in state court. Pilot programs are appearing, and recently, the South Carolina Supreme Court expanded the e-filing pilot program to include Sumter and Lee Counties. In case you missed it, here’s the two paragraph order expanding the pilot program to include those two counties:

IT IS ORDERED that the Pilot Program for the Electronic Filing (E-Filing) of documents in the Court of Common Pleas, which was established in Clarendon County by Order dated December 1, 2015, is expanded to include Sumter County and Lee County, beginning January 19, 2016.  Beginning January 19, 2016, all filings in all common pleas cases commenced or pending in Sumter County and Lee County must be E-Filed if the party is represented by an attorney, unless the type of case or the type of filing is excluded from the Pilot Program.

Attorneys should refer to the South Carolina Electronic Filing Policies and Guidelines, which were adopted by the Supreme Court on October 28, 2015, and the training materials available at http://www.sccourts.org/efiling/ to determine whether any specific filings are exempted from the requirement that they be E-Filed.  Attorneys who have cases pending in Pilot Counties are strongly encouraged to review, and to instruct their staff to review, the training materials available on the E-Filing Portal.

You can read the full order here.

My Cousin Vinny CLE? Sign Us Up (If Only We Lived In Pennsylvania)!

As the calendar turns to a new year, it is time to check on the status of your continuing education credits. If you are a few hours short an just happen to practice in Pennsyvlania, we have found the perfect CLE opportunity for you. On January 21, 2016, the Pennsylvania Bar Institute is sponsoring a very intriguing CLE entitled,”A Morning With My Cousin Vinny:  Developing and Presenting Your Case.” According to the course website, the CLE will offer insights on numerous trial techniques, including cross-examination, expert witnesses, eyewitnesses, discovery, and opening statements, presumably with My Cousin Vinny as a backdrop.  The course offers three substantive CLE credits and well as one ethics credit.

As is the case with many lawyers, we here at Abnormal Use are quite fond of My Cousin Vinny. So much so that back in 2012, we honored the 20th anniversary of the film by dedicating a whole week of blog space to Vinny-related posts, including interviews with the writer, director, actors, and our own lessons learned from the film. It goes without saying that we were more than pleased to learn about the PBI’s Vinny initiative and wish all states would use the film as a teaching tool. For example, here are few of the Vinny lessons we previously reflected upon:

Lesson 1 – Pick Your Battles

Scene:  Vinny doesn’t ask any questions at the preliminary hearing.  His client, Stan, angrily asks, “Why didn’t you ask them any questions? Maybe if you’d put up some kind of a fight, you could have gotten the case thrown out!”  Vinny calmly responds, “Hey, Stan, you’re in Ala-f*&%in’-bama. You come from New York. You killed a good ol’ boy. There is no way this is not going to trial!”

Lesson:  Sometimes, as an attorney, you need to know when to pick your battles.  Of course, by this point in the movie, Vinny didn’t have all the great exculpatory evidence he acquired later.  However, Vinny is probably right that  there was no way the case would be resolved without a trial.  It may have been a smart move to play it close to the vest and not reveal too much of his trial strategy.

Lesson 2 – No Argument in the Opening Statement

Scene:  The prosecutor, Jim Trotter, delivers a textbook opening statement – a fine recitation of the prosecution’s version of the facts combined with a clever attempt to massage the  jury’s collective ego.  Then, Vinny stands and delivers his own rather brief opening statement:  “Uh . . . everything that guy just said is bullsh*t. Thank you.”

Lesson: You’ve been dying to deliver this same opening statement for years, haven’t you?  It’s punchy; it cuts right to the chase.  But alas, such a retort is an improper argument.  Perhaps Vinny should have saved that approach for his closing argument.

Lesson 3 – Match Your Negotiation Strategy to Your Opponent

Scene:  Vinny finds out his girlfriend got stiffed on a game of pool with some yokel.  He flies down to the pool hall to collect, and the yokel asks, “How ‘bout I just kick your ass?”  Vinny retorts, “Oh, a counter-offer. This is a tough decision here. Get my ass kicked or collect $200?  Well, here’s my counter-offer: What if I were just to kick the ever loving sh!t out of you? . . . If I was to kick the sh!t out of you, do I get the money?”

Lesson: So much for that “Getting to YES” model where everybody wins.  Vinny invokes the old school tradition in his negotiations. Sometimes, that works.  It’s all about knowing your opponent.  Some are unreasonable. There’s no getting to “yes” without cracking skulls and forcing them to into agreement.  Vinny’s method succeeded, and he eventually collected that $200.

Lesson 4 – Do Some Digging

Scene:  There’s a long montage where Vinny performs his own investigation into the case.  He has his girlfriend take some photographs along the way.  Vinny is clearly annoyed when she’s trying to show him the pictures in the middle of trial.  He starts ranting, “Where’d you shoot this, from up in a tree? What’s this over here? It’s dog sh!t… That’s great! Dog sh%t, what a clue! . . . I should’ve asked you along time ago for these pictures.”  But then he realizes there’s a picture of the tire tracks, which really is the case cracker.

Lesson:  Most of the time, the facts will make or break your case.  As an attorney, you can’t always wait for the facts and evidence to come to you.  Even when you think you’ve got everything you need, keep digging.  Get out there and visit the accident scene, personally inspect the physical evidence, and talk to everyone you think knows anything about the case.  You never know what you are going to find if you keep digging.  It sure paid off for Vinny in his trial, and some day, that same diligence may pay off for you in one of your cases.

Lesson 5 – Be Collegial with Fellow Attorneys

Scene:  At one point in the movie, Vinny and the prosecutor engage in friendly discussion about their entry into the legal profession.  Later in the film, the prosecutor takes Vinny on a hunting trip, lets him borrow his cabin, and even congratulates him after Vinny’s victory over him at trial.

Lesson:  It’s a given that you should be a zealous advocate for your client.  But that doesn’t mean you can’t be civil, or even friendly, with opposing counsel.  At the end of the day, you are both just doing your job.  As everyone knows, one’s profession is more enjoyable when you’re working with friendly and respectful people.  Two attorneys should be able to duke it out in the courtroom and then grab a drink together after the trial concludes.

Lesson 6 – Stay Calm

Scene: As Vinny’s defense of his clients begins to unravel, he asks himself, “How the f*&k did I get into this sh!t?”  Luckily, Vinny keeps it together and eventually earns his clients their freedom.

Lesson: For many attorneys, your first trial will feel just like this movie (although hopefully, it won’t be as bad in reality).  You’ll have things that will go way off course, and there will probably be a point where you feel like you’re in way over your head.  You may even start asking yourself “Am I cut out for this?” or “How did I get into this?”  Don’t despair. Stay calm and press on.  By your second or third trial, things will seem much better.

There is certainly much, much more that can be learned from the movie and we are sure our friends with the PBI will do an excellent job of bring it to the everyday practice of the CLE attendees. For those of you who don’t live in Pennsylvania and remain interested in seeing what the film says about expert testimony, eyewitness testimony, opening statements, and discovery, feel free to check out these interviews on those subjects (and more) with the Jonathan Lynn (director), Dale Launer (writer), Raynor Scheine (actor who plays an eyewitness), and James Rebhorn (actor who plays State’s expert witness).