Hey, it’s our first edition of “Friday Links” of 2017! Can you believe we’ve now been doing this blogging thing for 7 years now? In fact, we posted our very first post 7 years ago yesterday on January 4, 2010. How about that? My, how the time flies.

Did you know that TV’s “Night Court” first aired 33 years ago this week?

If you are on Twitter, are you following the hashtag #AppellateTwitter?

As you may know, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain an office in Charlotte, where some of the local citizens welcomed the new year at an Avett Brothers concert. We elected to skip the show, and if reports from the event are any indication, our failure to attend was, in fact, negligence.

Our favorite legal tweet of late, by the way, references a film we’ve mentioned once or twice on this site:

After all these years, only movie I’ve ever seen that even comes close to accurately portraying real jury trial process is MY COUSIN VINNY.

— Jeff B/DDHQ (@EsotericCD) December 28, 2016

Throughout history, the legal profession has inspired great films. We have covered many of these films, such as My Cousin Vinny, and we have even had the opportunity to interview individuals involved with legally-themed films. We have recently asked ourselves, “What are the best one liners from legal films?”

Here is the list we came up with (thanks to heavy borrowing from other lists such as this one and this one):

The Paper Chase (1973): “Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.”

The Paper Chase (1973): “Mr. Hart, you’re still not speaking loud enough. Will you stand? Speak louder, Mr. Hart! Fill the room with your intelligence!”

The People v. Larry Flynt (1996): “I’m Your Dream Client. I’m the most fun, I’m rich and I’m always in trouble.”

A Few Good Men (1992): “You can’t handle the truth!”

The Verdict (1982): “You are the law.”

Intolerable Cruelty (2003): Freddy Bender: “Objection, Your Honor: strangling the witness.” Judge Marva Munson: “I’m going to allow it.”

This is by no means an exhaustive list; however, it does include some of our favorites. We encourage our readers to share their favorites as well.

Well, it’s Memorial Day weekend, and we once again express our great appreciation for those who lost their lives serving our nation. Above, we feature the cover of Captain America’s Bicentennial Battles #1, published back in 1976. We hope everyone has a safe and eventful holiday weekend.

Okay, so who else is saddened that “Mad Men” has ended its run? We here at Abnormal Use remain crestfallen.

At long last, Overlawyered has cited Stereogum. Of course, it’s on the recent “Netflix for Vinyl” model and the legal barriers for same. See here for me.

Get this: The popular website Mental Floss ran a piece entitled “29 Fun Facts about ‘My Cousin Vinny.’” In that post, the author quotes a number of our interviews with the writer, director, and cast members. How about that? Click here to read it (and pay particular attention to numbers 7,11,12,13, and 19).

Our favorite tweet of late:

“#Lawyers have souls, contrary to popular opinion.” – @StateBarCA CEO Robert Hawley

— Joshua Lenon (@JoshuaLenon) May 21, 2015

Unless you been completely disconnected from the media over the last week, you have undoubtedly heard about the purported scandal arising out of the New England Patriots’ alleged deflation of footballs prior to the AFC Championship game. We here at Abnormal Use have our thoughts on the scandal, but we are not interested in wasting valuable space on the legal blogosphere reveling in the inflation pressure of pigskin. We do, however,want to discuss the most notable thing to come out of the “Deflategate” scandal – New England Head Coach Bill Belichick’s comparing himself to My Cousin Vinny’s Mona Lisa Vito.

The scandalous comparison occurred last Saturday during an impromptu news conference held in an effort to clear the Patriots of any wrongdoing. (You can find the full press conference here). In the conference, Belichick offered an elementary physics lesson in an attempt to explain how eleven of the Pats’ twelve footballs were discovered to be 2 psi below the required pressure limit. After doing so, Belichick exclaimed, “I would not say that I’m Mona Lisa Vito of the football world.” No, Coach, you are not.

There is no limit to the differences between Bill Belichick and Mona Lisa Vito.  Personality, charisma, and class are the obvious ones, but that isn’t what Belichick had in my mind.  He was referring to his use of scientific knowledge as a lay person to support his case in a manner similar to, but not quite the same as, Vito in the Vinny trial.  In reality, the differences between Vito’s testimony and Belichick’s comments are far more stark.

For starters, Vito was actually qualified as an expert.  Everyone remembers the infamous voir dire in which she rattled off enough information about ignition times to make Henry Ford jealous, leaving the district attorney speechless and with no concerns about her qualifications. Belichick, on the other hand, likely used no first hand knowledge at all and relied on whatever information team informants obtained from a Google search on air pressure.  No one left that press conference thinking Belichick could teach a high school physics class.

Base of knowledge aside, the biggest difference between Vito and Belichick is that Vito’s testimony left no doubts as to its truth. With her testimony, the case was won. The judge knew it. The jury knew it. The State knew it. There were no doubts. On the other hand, Belichick offered a possible explanation, at best.  His comments sparked more debate on the accuracy of his science and in his credibility than they settled. No one listened to Belichick speak and definitively felt that the Patriots were innocent of any charges.

After devoting a full week to My Cousin Vinny‘s twentieth anniversary, Vito and her trial testimony are topics we know well. For Belichick to compare himself to Vito by saying he is not like Vito is heresy. We assume he made the reference because, at least to him, he thought there was some similarity.  But Coach, we have news for you. Absent your reference, no one on the planet would have opined that using scientific words fed to you by your public relations manager makes you Mona Lisa Vito.

Real knowledge comes from being an out-of-work hairdresser.

Oh, and many thanks to friend of the blog Jay Hornack for reminding us that we needed to draft a post on this fateful subject:

I’m looking forward to the @GWBLawFirm blog take on Bill Belichick comparing himself unfavorably to Mona Lisa Vito.

— Jay Hornack (@panicstlawyer) January 26, 2015

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and makers of legal-themed pop culture. As you might recall, we here at Abnormal Use have been fortunate to interview individuals in the entertainment industry who have participated in legally themed television shows and films.  We have interviewed Phil Morris, the actor who played the flamboyant attorney, Jackie Chiles, in “Seinfeld,” as well as the late, great James Rebhorn, who played, among many other roles, the FBI expert witness in My Cousin Vinny. We recently had the opportunity to speak with actress Roma Maffia, who has appeared in a spate of blockbuster films and television series, including Disclosure, Double Jeopardy, “Nip/Tuck,” “Boston Legal,” “Law & Order,” “Profiler,” and Nick of Time, to name just a few. She has played a lawyer or judge in many of these roles. A fun historical note: Today is the fifteenth anniversary of the release of Double Jeopardy, a film in which she played a jailhouse lawyer dispensing advice to Ashley Judd’s character.  (You remember the crazy premise: If she has been wrongfully convicted of a murder that never occurred, then double jeopardy would prevent her prosecution for later murdering the purported original victim.). Additionally, this December 4 will be the twentieth anniversary of the release of Disclosure, the Michael Crichton sexual harassment thriller in which she played a lawyer advising the Michael Douglas character in his dispute with his employer. The interview is as follows:

ON THE ANNIVERSARIES OF DISCLOSURE AND DOUBLE JEOPARDY

Kyle White: Were you aware that the anniversaries were coming up for those movies?

Roma Maffia: Well, I wasn’t. It’s pretty shocking. No, I wasn’t.

LEGAL EXPERIENCE PRIOR TO FIRST LEGAL ROLE IN DISCLOSURE

RM: None!  . . . [I]n New York, I didn’t do much television or film, but I acted the role of the character who would be arrested by the police, such as a prostitute or a drug addict, or some kind of felon as opposed to a lawyer.

KW: Interesting.

RM: It’s after I did Disclosure . . . . Well, you know, you get type cast. So, because it was Disclosure, all of a sudden I became the lawyer. . . . . I did do research on the movie, but before the movie? No, I had nothing to do with law.

KW: So, you are saying that Disclosure was the first time you had been involved with acting as a lawyer or a judge?

RM: First time, absolutely, first time!

ASSISTANCE FROM THE LEGAL COMMUNITY IN PREPARING FOR ROLES

RM: On those roles as lawyers, any role, pretty much, I’m sure myself, like a lot of actors, do a lot of research. So, I’ve been very fortunate to have really great people. Also, when I did Disclosure, it was fantastic because it was the big case of the football player that was televised.

KW: The O.J. Simpson trial?

RM: Yes. So, I got to watch all day of the trial. So I got to watch Marcia [Clark], the female lawyer, sort of be my role model for Disclosure. For Double Jeopardy, I also had legal help and advice, [and I] went to a prison in L.A. So, I’ve been very lucky to have lawyers help me or forensic pathologists. Everyone in a specific field is very, very helpful. So, all the lawyers that have helped me have been very generous with their time and have taught me quite a lot.

KW: That’s great. Is there any lawyer in particular . . . who has helped you in preparing for your roles, or have you just sort of talked with a different lawyer each time?

RM: I’ve talked with different lawyers each time.

KW: That is interesting to know that you dealt directly with the legal community.

RM: Very much so, yes. I actually thought with the amount of lawyers I played, I was going to get some kind of degree or something. Is that possible?

KW: [Laughter] You should, you definitely should!

RM: I should!

IMPORTANT SOCIAL CONTEXT OF DISCLOSURE

RM: Well, I had done The Paper with Ron Howard before, where I played a reporter. But it was my first really large role, and I loved the subject matter because, at the time, it was a big hoo ha that sexual harassment had not been addressed in film. And then that it should be addressed with the man that is a victim caused an interesting stir. But, just that the topic was so – everyone on the set was so impassioned by this topic. It was also a time, when, you know, computers and how they were used in offices, and the mixture of a computer and send[ing] messages in code. It was very exciting. The whole concept of the sexual harassment; and, I think some people were like, “Oh I didn’t even realize man could be sexually harassed, even if he is the boss.” I think it addressed lots of elements that were surprising . . . .

SERVICE ON A REAL-LIFE JURY

RM: . . . I was on a jury . . . [I]t was the first time I really understood, or got an inkling, like I said, about how specific the law is to . . . that it was frustrating.

KW: That’s interesting. I’m curious, on what kind of jury did you serve?

RM: It was a mother who had killed her four year old daughter.

KW: Oh, wow, that’s a tough one to sit through.

RM: Oh, my god, I begged. You know, it was funny because the judge, it was in Los Angeles, and the judge recognized me from wherever. He sort of made fun, like is this the way you imagined it when you do your film or television? I was like, “No, no, no, it’s not!” I didn’t want to do that case, but just in that case, and I guess because it was real life, so the stakes were very different. How we couldn’t get what we wanted for the punishment for the mother to be. So, because of what seemed like minutia, but anyway, I know, it’s no. But that, I found very difficult and frustrating.

KW: . . . [W]hen did that happen in your professional career?

RM: It happened about seven years ago. When I was there, Pat Boone was also serving on a jury.

KW: Really?

RM: Yes, He was in court outside having lunch at the public lunch table. Which was pretty funny, I thought.

ADVICE TO LITIGATORS – “LESS IS MORE”

KW: Any legal roles you have played since your jury duty experience that the experience on the jury has shaped? If so, how?

RM: [T]he one thing is less is more. That’s the one thing I take away from my jury experience and also talking to lawyers about what a witness is to or not to say.

KW: . . . What exactly do you mean there? That sounds like good advice for practicing attorneys.

RM: I just meant that it’s, instead of going on, just answer the question, without leaving room for any interpretation of the answer. No interpretation, just the answer. Simple, “Yes,” “No.” You know, I think it’s human nature to go, “No, but I saw this,” and not realizing you’ve opened up another topic that you weren’t aware that you did. Now we go down another rabbit hole. Does that make sense?

KW: Exactly. And you’ve touched on probably one of our frustrations encountered in the practice of law – getting witnesses to understand that; to simply answer the question.

RM: Yes, I think it’s a thing you think you’re talking to your parents or the principal and the more you talk, the more they are going to understand your dilemma without understanding the more you talk the more you are setting up a dilemma.

HER FAVORITE ROLE

KW: . . . You’ve played, some major characters in some huge television shows and other movies. You’ve been in “Boston Legal.” You’ve been in “Law & Order.” You’ve been in “The Sopranos.” You’ve been in “ER” and recently. You played in the hit series “Nip/Tuck” and played a huge role in that. Which one of your roles that you played in the past has been your favorite role and why?

RM: That’s such an interesting question. I think because. . . Each one has their own uniqueness that I will remember. But definitely, Disclosure, because it was an eye-opener into a whole other world of film. I learned a lot about film, which I had not known or been introduced to. But Liz on “Nip/Tuck” was being an anesthesiologist and learning all those things, a little like people generous to teach me was. That’s what it is. It’s just so fascinating to be able to enter into all these worlds and just learn just a little bit of something. So I have to say, Liz on “Nip/Tuck.” I’d have to say on “Profiler,” my character was a forensic pathologist. And, I loved that. It was fascinating; pathology and crime, and honoring the dead. So many of them. Yet, there are roles that I do that have been plays that are comedies that I enjoy. So, it’s hard to pinpoint because I could go through my resume and go “Oh, no, I love that one, too.” I’ve just forgotten what I did. So, for now, those ones pop out. Oh, and I loved the character in Nick of Time. She was fantastic. So, yes. It’s hard to say.

 Okay, so how’s this for a legally themed comic book cover? Above, you’ll find the cover of Uncanny X-Men #23, published just a weeks ago in 2014. The cover is simple: It depicts “The Last Will and Testament of Charles Xavier,” who we all know to be the leader of The X-Men. What is his testamentary intent? Did he comply with all of the formal prerequisites required of the execution of a will? Who were the witnesses to its execution? We assume that with such a fancy cover page that it is not a holographic will. We’ll review the issue and report back dear readers. In fact, this is the same comic book issue that we mentioned last week due to the fact that a part of the narrative is set in Charleston, South Carolina.

Here’s some news: In this month’s ABA Journal, our editor Jim Dedman offers two contributions to its “12 Movies With Pivotal Lessons Featuring Lawyers” article. As a part of that piece, he was asked to choose a significant legal scene from a film and identify some of the lessons that lawyers can learn from it. Of course, he chose to write about the expert witness sequence in My Cousin Vinny (a film to which we here at Abnormal Use dedicated a week’s worth of posts on the occasion of its twentieth anniversary back in 2012). As for his other contribution, he chose to discuss the wonderful Wilford Brimley scene in Absence of Malice.

Here’s how he describes the scene in Vinny:

In the final trial sequence, Vinny calls an unsuspecting Mona Lisa to the stand to testify as an expert witness for the defense. In so doing, he draws an objection from the prosecutor (Lane Smith), who rises to question Mona Lisa’s expertise. He then conducts a brief voir dire of Mona Lisa—which, curiously, takes place in the jury’s presence—to determine whether she is indeed qualified to testify. Impressed by the depth of her automotive knowledge, the prosecutor withdraws his objection and the judge permits her to testify. Through her testimony, Vinny wins an acquittal for his clients.

As for Absence of Malice, he sets the scene as follows:

No summary can do the final sequence justice; it must be seen to be fully experienced. As Gallagher’s efforts to “get even” begin to come to fruition, Wells convenes a meeting of all of those involved in the Gallagher affair—including the federal prosecutor, the district attorney (to whose campaign committee Gallagher has made anonymous contributions so as to cast doubt upon him), Carter and the newspaper’s lawyer—in an office conference room. The federal prosecutor attempts a mock cross-examination of Gallagher to prove his revenge scheme, but Wells takes over the meeting and queries Carter about her source into the investigation of Gallagher. Carter admits she received the information from the federal prosecutor, and following that admission, Wells—after commenting on the First Amendment and the purported reporter’s privilege—tells everyone where they now stand.

You’ll need to visit the ABA Journal‘s site to see the potential lessons from these films. You can read the Absence of Malice article here and the My Cousin Vinny article here.

By the way, we once tried to interview Mr. Brimley about his fateful scene, but alas, it was not in the cards. But it resulted in an interesting story about our attempts to do so, which you can revisit here.

Okay, so we’re going old school today with All-American Comics #62, published way, way back in December of 1944.  According to Wikipedia, All-American Comics was the brainchild of All-American Publications, a predecessor company of the more well known DC Comics. On the cover, we see the original Green Lantern presiding as a judge with gavel in hand while Doiby Dickles, a Green Lantern sidekick, is acting a prosecutor, apparently, although we’re not certain of the identity of the witness, presumably the defendant.

The Drug and Device Law blog doing Throwback Thursday is the best thing ever. See here.

The Hollywood, Esq. blog brings us this story: “Teller Wins Lawsuit Over Copied Magic Trick Performance.”

Heads up! Yesterday, the senior resident superior court judge of the Mecklenburg County, North Carolina superior court division issued the following administrative order:

In order to promote the efficient and timely disposition of matters appealed from the Clerk of Superior Court and to prevent the development of a backlog of pending appeals, the undersigned Senior Resident Superior Court Judge for the 26th Judicial District enters the following Order.

IT IS ORDERED that, in all appeals from decisions of the Office of the Clerk of Superior Court of Mecklenburg County, the appellant shall contact the Caseflow Management Division of the Trial Court Administrator’s Office of the 26th Judicial District not later than 30 days from the date of the appeal to schedule a hearing before a Superior Court Judge. A failure to comply with this Order shall result in a summary dismissal of the appeal, and the matter shall be remanded to Clerk of Superior Court.

Finally, we were saddened to hear the news of the recent death of character actor James Rebhorn. Two years ago, he kindly agreed to an interview with us on the occasion of the twentieth anniversary of the release of My Cousin Vinny, in which he appeared as an expert witness. You can read that interview here. In fact, The Guardian quoted a paragraph of our interview in its obituary of Rebhorn. Rest in peace.

Okay, so, above, you’ll find the cover of Fame: Justine Bieber #1, published not so long ago by Bluewater Productions. Why, why, are we posting a comic book featuring the pernicious Biebs? In case you haven’t heard, Bieber himself was deposed recently, and excerpts of his video deposition have leaked online to the celebrity gossip website TMZ. Let’s just say that Bieber presents as a difficult deponent. You’ve got to see it. TMZ has posted a number of clips online, all of which you can access here (although some of the ads on the TMZ website may be NSFW). While you’re at it, be sure to read Kevin Underhill’s commentary at the Lowering the Bar legal humor blog, which you can access here.

The Celluloid Optimist linked our interview with My Cousin Vinny director Jonathan Lynn this week in a post you can read here. (In fact, in that post, we were reminded of the debunked urban legend that Marisa Tomei did not actually win the Oscar for her performance in that film. By the way, can you believe it’s been two full years since our week long series on the twentieth anniversary of My Cousin Vinny?  Indeed, two years ago this week, we here at Abnormal Use dedicated a week’s worth of posts to the 20th anniversary, including interviews with the director, the writer/produce, and various cast members. That was a mighty fun project, and you can revisit it here.

Back in November, we wrote about To Kill A Mockingbird author Harper Lee’s trademark infringement lawsuit against an Alabama museum. Well, according to recent press reports, Lee has settled that suit. Reported The New York Times: “One issue raised in the suit was the address of the museum’s website, formerly tokillamockingbird.com. A notice on the museum’s site now notes that the address has changed tomonroecountymuseum.org.”

GWB shareholder John T. Lay, of our Columbia, South Carolina office, was just became president elect of the South Carolina Chapter of American Board of Trial Advocates. For more info, see here.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to law professor William M. Janssen of the Charleston School of Law in Charleston, South Carolina. The interview is as follows:

1. What is the most significant new development in South Carolina products liability law in recent years? What about in the regulation of medical devices?

Products liability law continues, nationally, to be a discipline in great flux, and the list of “significant new developments” could be a really lengthy one.  To my eye, among the top candidates for this distinction are the following six:

A.  Branham v. Ford Motor Company (S.C. S.Ct. 2010): The decision to reformulate our products design defect theory from a consumer-expectations/risk-utility composite into a far more predictable RAD-based risk-utility model has added great clarity to this realm of local products theory.  Now, the pleading and proof expectations for this theory are fixed: a claimant must demonstrate the presence of a feasible alternative design (which, we’re now instructed, installs an inquiry that evaluates “cost, safety and functionality”), and then show how this alternative design “would have prevented the product from being unreasonably dangerous.”  This reformulated approach to testing for design defectiveness adds clarity and more guided decision-making to what is otherwise a nearly boundlessly subjective undertaking.

B.  State v. NV Sumatra Tobacco Trading Company (S.C. S.Ct. 2008): In this decision, our Supreme Court took sides in the great O’Connor/Brennan Asahi stream-of-commerce debate over the proper boundary-line set by the Due Process Clause in “stream”-based personal jurisdiction contests.  As “stream” theory will frequently (nearly always?) involve a products claim, settling this core inquiry over the reach of judicial power is critically useful.  By my reading, our Supreme Court took us even further than Justice Brennan had envisioned in Asahi.  Our Court reasoned that “simply placing a product into the stream of commerce is consistent with the Due Process Clause,” thereby satisfying the constitutional prescription placed on the exercise of personal jurisdiction over nonresidents.  (Sumatra Tobacco, Fn. 5)  [By comparison, Justice Brennan had qualified his view with the admonition that the Due Process Clause would be satisfied in “stream” cases “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State.”  If our Supreme Court’s unqualified “stream” approach is applied literally, it would not matter whether Sumatra Tobacco knew that its cigarettes were being marketed in South Carolina or not – arguably, a much broader approach to the Due Process Clause than Justice Brennan had advocated.]  With the Court again brutally fractured two terms ago in J. McIntyre Machinery v. Nicastro, the prospects for a decisive ruling from Washington that could supplant Sumatra Tobacco now seem dim.

C.  Twiqbal (U.S. S.Ct. 2007 & 2009): More below.

D.  Federal Preemption: The uncertainties in the evolving landscape of federal preemption theory are hard to overstate.  In Buckman (2001) and Geier (2000), the U.S. Supreme Court seemed poised to give federal preemption theory a broad and sweeping application that would compromise broad swaths of run-of-the-mill products claims in prescription-only cases.  The Court seemed to retrench meaningfully in Lohr (1996) and Wyeth v. Levine (2009), only to then press out again in Riegel (2008) and Bartlett (2013).  All told, the federal preemption story is a byzantine one of 5-4 decisions, blistering dissents, and shifting majorities.  For litigants in prescription drug and device product cases, federal preemption remains a fundamentally unstable area of constitutional law.

E.  Off-Label Prescription Drug/Device Promotion and the First Amendment: The federal government and its principal drug and device regulator, FDA, have insisted that aggressively policing the off-label promotion border is critically important in safeguarding the new-drug and new-device approval process deemed essential to a safe pharmaceutical and medical device marketplace.  The Supreme Court’s recent decision in Sorrell v. IMS Health (2011) and the Second Circuit’s long-awaited opinion in United States v. Caronia (2012) raise the specter that the Free Speech Clause may have an important role to play in the scope of regulation of off-label promotion.  Both decisions intimate that a manufacturer, promoting off-label in a manner that is indisputably truthful and non-misleading, may find a constitutional vanguard against both criminal and civil liability.  The consequences of such an outcome, caution FDA, could decimate the agency’s continued effectiveness in protecting our drug and device supply.  The final battle in this war is yet to come.

F.  S.C. Rule of Civil Procedure 30(j) (2000): In promulgating Rule 30(j), our Supreme Court noted that it was requiring “attorneys in South Carolina to operate under one of the most sweeping and comprehensive rules on deposition conduct in the nation.”  The Rule has lived up to the billing.  Products litigations are very discovery-laden enterprises, and the restrictions imposed on attorney behavior by Rule 30(j) certainly impact the reach and practice of deposition discovery in our State.  Because depositions are the most agile and unpredictable of all discovery tools, the substantial constraints on defensive lawyering imposed by Rule 30(j) qualifies, by any measure, as one of the “significant new developments” in our discipline.

2. How has the evolving Twiqbal jurisprudence affected the litigation of mass tort or mass pharmaceutical cases?

A growing body of data suggests that in employment discrimination, civil rights, and pro se cases, Twiqbal may be having a statistically significant impact in removing cases from the federal docket prior to the filing of an answer and the pursuit of discovery. Opinions vary on whether this pre-answer culling is something to be cursed or cheered.  A few years back, I conducted an industry-targeted study on the effect of Twiqbal on pharmaceutical and medical device litigation.  (71 La. L. Rev. 541).  My conclusions were mixed.  In studying 264 drug and device cases released over 15 months post-Iqbal, I found that nearly 80 percent of the time, Twiqbal had no perceivable decisional impact on whether a drug or device pleading survived or failed.  By 20 percent is still a large number, and in those cases, I could not conclude with any confidence that Twiqbal had played no role in the outcome.  That said, it remained unclear to me following this study whether it was the “plausibility” requirement of Twiqbal that was principally influential, or merely the “no-conclusions” requirement of Twiqbal.  If the latter (as I suspect, in many cases, it was), that portion of the Twiqbal approach added nothing, in truth, that was particularly new or different than the incumbent pleading-testing approaches of each of the Nation’s federal circuits.  Nonetheless, whether one perceives great change or modest change in Twiqbal, there is little question but that it has added a good deal of uncertainty to the pleadings stage of federal litigation, and is likely incentivizing great factual enhancement by federal pleaders.

3. What is the biggest challenge for lawyers practicing in the products liability field today? What advice would you give?

Our discipline is one marked by great change today.  Perhaps the biggest challenge for any products lawyer today is simply keeping up with the profound and continuing fluctuations in the substantive law we confront and the procedures through which we confront them.  Without question, the consequences of these changes can be dramatic and dispositive.  Twiqbal and federal preemption can be courthouse door-closers.  The new Branham approach to product design theory imposes enhanced burdens on plaintiffs and offers fresh vulnerabilities to defendants.  The thought that the Constitution’s free speech protections could impact products cases raise an entirely new and generally unexplored frontier.  This is an exciting time to be a products lawyer.  My advice?  Simplistic as it may sound, perhaps the product lawyer’s greatest challenge today is just keeping abreast of change.

4. Generally, how would you characterize the media coverage of products liability issues?

It’s a mixed bag, in my view.  Industry-specific media sources (like BNA specialty reporters or Law360) seem to do a laudable job of capturing nuances and practical meaning in major case law and legislative developments.  While I might take issue with a particular comment or critique in those sorts of sources, I find that, by and large, their work is fairly sophisticated (considering time and space constraints), and valuable to the practitioner.  The mass media is, predictably, a horse of a different color.  Their target audience is not the products lawyer or industry participant, but the daily news reader.  Sophistication, nuance, and reliable interpretation all suffer.  In that environment, “sound-bites” seem often to trump content.

BONUS QUESTION: Favorite pop culture lawyer?

It’s a retold answer for sure, but Vinny Gambini (My Cousin Vinny) is the hands-down pick for me.  If you pressed me for a more obscure choice, I’d go with Rudy Baylor in The Rainmaker.  I think Grisham wove an entertaining David-versus-Goliath tale, with a good number of “teachable” moments that I use with great effect in class.

BIOGRAPHY: William M. Janssen joined the Charleston School of Law faculty in 2006 after a lengthy practice with the mid-Atlantic law firm of Saul Ewing LLP, where he was a litigation partner, a member of the firm’s seven-person governing executive committee, and chair of the interdisciplinary Life Sciences Practice Group.  He concentrated his practice in pharmaceutical, medical device, and mass torts defense and risk containment.  In practice, he was involved in several high-profile drug and device cases, including the national diet drug (“fen-phen”) litigations, DES litigations, and myelographic contrast dye litigations.  He has spoken and written extensively on pharmaceutical and medical device law.

Above, you’ll find the cover of Captain Marvel #39, published way, way back in 1975.  It’s a part of the storyline “The Trial of The Watcher,” which the website Comicvine tells us involved “Uatu the Watcher [being] put on trial among his race for his interference in several Earth affairs.” The cover proclaims that the issue will offer “The Fate of the Watcher . . . and the Deadly Verdict!”  That does not sound promising for Uatu, does it?

Mental Floss offers us “11 of the Most-Watched Television Trials.”  You can probably guess most of them.

This review of My Cousin Vinny by AtomicSam links our prior coverage of the 20th anniversary of the film.

Well, Trevor Fehrman at Film Racket is arguing that “Attack of the Clones is a Film of Incalculable Historical Significance.”  Oh, my.

Finally, comedian Ricky Gervais offers his thoughts on product warning labels. Not a fan of them, we think, based on his comment.  For good measure, be certain to read some of the comments to his tweet to get an idea of the public perception of certain warning labels.