Abnormal Use At The DRI Product Liability Conference (In Las Vegas)

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We here at Abnormal Use have been writing about products liability cases for five years now. So, it may not surprise you, dear readers, that we will be attending the 2015 DRI Product Liability Conference this week in Las Vegas, Nevada. As you may suspect, we here at the blog and at Gallivan, White, & Boyd, P.A. are big fans of DRI and remain very active in that organization. So, our editor, Jim Dedman, will be at this week’s products liability conference. If you see him, please introduce yourself. He may even have with him some snazzy promotional materials we created in support of our blogging efforts. (Jim is also the vice chair for newsletters for the DRI Product Liability Committee.).

If Jim follows tradition, he will be live tweeting at least some portions of the conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter (and surely you must be), please check it out and send us a note.

Groundhog Day

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So, it’s Monday, and it’s Groundhog Day (again).

Perhaps we’re leaning on the holiday for an easy post today. But we here at Abnormal Use feel compelled to recognize the occasion.

We’ve not done many Groundhog Day posts in the past, but if you’re interested, you can see our earlier musings on the subject here. In fact, in that 2012 post, we noted:

Well, it’s Groundhog Day, again. We here at Abnormal Use are immense fans of the Bill Murray film by that name (and in fact, our editor even saw it at the theatre as part of a pre-release sneak preview!).  One thing we litigators can enjoy is the fact that each day presents a new challenge.  On Tuesday, it’s the deposition of a Plaintiff in a products case. On Wednesday, it’s a hearing on this, that, or the other. On Thursday, it’s a mediation.  On Friday, it’s something entirely different, maybe trial.  So, unlike Phil Connors in Groundhog Day, we can usually avoid the quotidian monotony depicted in the film and be thankful that every day is, usually, quite different from the one before.

See how we tied Groundhog Day to the perils of litigation? How about that? This is why we love blogging.

Be certain to have a festive day, and let’s hope it’s not six more weeks of winter.

Friday Links

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Although we’ve previously written about Lou Reed’s Mistrial album, we were previously unfamiliar with this bootleg, Lou Reed On Trial . . . (which notes that it was “as recorded by his lawyer.”) You can read a bit more about this album over at Discogs (a valuable site for those obsessed with music and rare albums). It was recorded live in Philadelphia in 1989, apparently, and of course, he played the song “Mistrial” at the concert in question. Sadly, we here at Abnormal Use were never able to see Lou Reed live. Alas.

On a somewhat related music note, we missed the fortieth anniversary of Bob Dylan’s Blood on the Tracks. A fantastic album, that. (Hat Tip: Ben Dungan).

Here’s an interesting article from Connectivity: “How to Live-Tweet a Conference.” As you’ll soon see, this may come in handy.

Well, since Google Fiber is apparently coming to North Carolina, we’ll have to start reading the Google Fiber Blog. (Hat Tip: Erik Mazzone).

Two weeks from today, on February 13, 2015, the Charlotte School of Law’s Law Review is sponsoring a symposium entitled “For Your Eyes Only: Where Privacy Ends and the Law Begins.” For more information on that event (including the ripped from the headlines program agenda), click here.

Our favorite tweet of the week is from our editor:

South Carolina Federal Trial Court Grants Summary Judgment In Mesothelioma Case

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in such cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from Foster Wheeler boilers caused the decedent’s mesothelioma.

Judge Norton’s thorough, well-written opinion began by concluding that South Carolina law applied to the diversity action and that South Carolina had unequivocally adopted the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986) “frequency, regularity and proximity test” for causation in asbestos cases. The Plaintiff in Sparkman attempted to distinguish Lohrmann, arguing that the standard only applied to asbestosis cases. The Plaintiff urged the Court to follow the Seventh Circuit’s lead and apply a lower “minor exposure” standard in mesothelioma cases. Judge Norton rejected this argument, finding that the South Carolina Supreme Court opinion which actually adopted the Lohrmann standard, Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007), broadly dealt with “mesothelioma and other asbestos-related illnesses.” In other words, the law of South Carolina requires a plaintiff to satisfy the frequency, regularity, and proximity factors in order to establish causation in an asbestos case, regardless of the disease at issue.

The Court then considered whether the evidence satisfied the Lohrmann factors such that there was a genuine issue of material fact as to the allegations that a Foster Wheeler boiler caused the Plaintiff’s mesothelioma. The Court found that there were fatal holes in the proof. For example, while the Plaintiff was perhaps able to show that a Foster Wheeler boiler was in the vicinity of the Plaintiff at relevant times, the Plaintiff was unable to show that the Foster Wheeler boiler was responsible for exposing the Plaintiff to friable asbestos.

In the end, the Court concluded that the Plaintiff “fail[ed] to raise a genuine dispute as to whether [the decedent] was exposed to asbestos from a specific product manufactured by Foster Wheeler, much less on a frequent and regular basis.” Judge Norton’s opinion has several transcendent meanings. First, it means that Plaintiffs must prove that a Defendant was responsible for causing the Plaintiff’s injury, even in an asbestos case. Second, it means co-worker testimony that he or she may remember a defendant’s product being near the Plaintiff isn’t enough to survive summary judgment. And indirectly, this opinion undermines the popular Plaintiff’s “any exposure” causation theory.

Coach Belichick, we know Mona Lisa Vito. And you are no Mona Lisa Vito.

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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:

Colorado Inmate Stands Up For Dez Bryant, Cowboys Fans Everywhere (For Only $89 Billion)

It is the week of the Super Bowl, the biggest sporting event of the year, and we here at Abnormal Use are having trouble getting excited. It has nothing to do with our beloved Carolina Panthers bowing down to the Seahawks earlier in these playoffs. No, our excitement is subdued because this is the first Super Bowl in our memory involving two teams that arguably shouldn’t be there. The Patriots are marred by “Deflategate” paranoia. The Seahawks are technically scandal-free, but everyone knows the NFC champ would have been the Dallas Cowboys but for the overturn of Dez Bryant’s crucial fourth quarter catch against the Packers. The NFL won’t do anything to stop the injustice.  Fortunately, Colorado inmate, Terry Hendrix, is not so constrained and has filed a lawsuit against the NFL, Commissioner Roger Goodell, and referee Gene Steratore seeking $88,987,654,321.88 over the abysmal call that kept the Cowboys out of the big game.

According to the complaint filed in the U.S. District Court for the Northern District of Texas, Hendrix, who apparently serves as counsel for “Dez Bryant, all Dallas Cowboys fans and all people in or from the sovereign republic of Texas,” is suing the defendants for negligence, breach of fiduciary duty, and “wreckless disregard.” He alleges that the video reversal of Bryant’s catch was “fraud, theft, and gross stupidity.” As a result, Hendrix claims that victory was clearly stolen from the plaintiffs because “the Cowboys’ offensive line would have perfectly created an ‘Autobahn’ for DeMarco Murray to drive into the endzone for the score and victory.”  Obviously.

The Super Bowl is big business. The least the NFL can do is make sure the right teams make it to the big game.  Like Hendrix said, the Cowboys obviously would have won but for the blown call (despite how they played the other 59 minutes).  And, they obviously would have gone on the road to beat Seattle where the Packers couldn’t win even when Russell Wilson throws four interceptions.  Just cancel the Super Bowl already and give the Cowboys the trophy.

Credit Hendrix for standing up for Bryant, the Cowboys, and the great state of Texas and trying to honor the integrity of the game.  We are certain when he recovers $89 billion from the NFL, Hendrix will share it with them evenly.

LinkedIn For Lawyers – Beyond The Basics

I was at a deposition recently when the subject of LinkedIn arose in conversation. After seeing a post I had made on the site, another lawyer said he did not see the benefit of LinkedIn for lawyers. That gave me an opening to share with him why LinkedIn is a part of my marketing tool box. I am certain that this lawyer knew the basics of LinkedIn, as described in hundreds of articles and books. Perhaps you have read some of that material, which includes the following suggestions:

  • Complete your profile, including information on your education and business
  • Use key words in the “background” and “experience” sections to optimize the search results
  • Make sure your “headline” describes what you do
  • Customize your links to websites and blogs
  • Build your network by making connections
  • Regularly share updates
  • Join different “groups” and participate in group discussions

Here are a few suggestions, beyond the basics, illustrating how LinkedIn has enhanced my professional networking.

In advance of a meeting or conference, I may have a list of attendees. It is helpful to search for these individuals on LinkedIn. I can learn about their background, the nature of their business, their hobbies, and personal interests. When I return to the office from such a meeting or conference, I can send them a personalized invitation to connect on LinkedIn.

Several years ago, our firm was planning an event in a particular city. Prior to the event, I performed a LinkedIn search on people in that city within a particular industry. What did I find? An individual with whom our firm had a business relationship many years before but with whom we had lost track as he had moved to a different company. I sent him an invitation to connect on LinkedIn, reminded him of our prior relationship, and invited him to our firm’s event. Following his attendance at the event, and other opportunities to reconnect, he is once again a client of our firm.

LinkedIn also provides me with the opportunity to follow individuals from job to job. When a person changes jobs, LinkedIn will notify me. I can then follow up again with “congratulations” on their new position. On more than one occasion, this approach has allowed me to maintain a business relationship when individuals move to a new company.

Finally, sometimes, I just go on there and look around. If I am interested in a particular company, I can check on its corporate profile and see the list of individuals connected to that company. I might cruise through the groups which are relevant to my practice area to see if there is someone there I might know or would like to know. Have fun with it.

LinkedIn can be a powerful tool to help develop and maintain professional relationships. Once you have established the basics, you are limited only by your imagination.

Friday Links

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What is happening on the cover of Action Comics Annual #3, published not so long ago in 1991? Apparently, Superman ran for President of the United States and won! (We wonder if he had any primary opponents.). Well, for more information on the plot of this fateful issue, we once again turn to ComicVine:

Waverider decides Superman is too powerful not to look into his future again. This time he sees a future where Superman has run for President and won. While in office, he is able to bring peace to the world. upon announcing to his superhero colleagues that the world is going to disarm all nuclear weapons, starting with America, Guy Gardner calls him a traitor and attacks him. During the battle, Superman is able to take control of Guy Gardner’s power ring, and after taking Gardner into custody, the other Green Lanterns from Earth offer to let Superman keep the ring. Waverider watches as Superman turns it down citing power corrupts and absolute power corrupts absolutely. Seeing this makes Waverider realize Superman would never become the Monarch, so he decides to never bother Superman again.

Deciding never to bother Superman again sounds like a good idea. We wonder how Superman achieved disarmament and whether it was the same approach he took in the 1987 film, Superman IV: The Quest for Peace. See here for that method:

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Ah, 1987. Those were the days.

In case you missed it, the City of Charlotte, North Carolina may be loosening its food truck regulations. For more on that story, see here.

Since this is a products liability blog, we must ask: Are any of you, our dear readers, planning to attend the DRI Product Liability Conference in Las Vegas next month?

Finally, here’s our favorite tweet of late (authored by South Carolina lawyer Kirsten Small):

Dismissal Of Fluoride-Based Case Upheld By Fourth Circuit

Disclaimer: Do not Google “dental fluorosis,” for as with every Google Image search, you are bound to discover the most graphic examples, which in this case aren’t pretty. Earlier this month, the Fourth Circuit Court of Appeals affirmed a Maryland district court’s dismissal of a case against Nestle, Dannon, and Gerber involving dental fluorosis. See Nemphos v. Nestle Waters North America, Inc., et al, No. 13-2146 (4th Cir. Jan. 8, 2015). Michelle Nemphos, as legal guardian of her child, brought suit against these defendants for allegedly giving her daughter dental fluorosis.  According to the complaint, the plaintiff’s daughter consumed Nestle’s infant formula and Poland Spring water, Gerber’s baby foods and apple juice, and Dannon’s Fluoride To Go bottled water. According to the CDC, dental fluorosis occurs when young children consume too much fluoride over long periods when teeth are still developing under the gums.  The effects can range from barely noticeable white spots (okay, you can click that one) to pitting.  Once the teeth erupt through the gums, they will no longer develop D.F., and apparently, once a child reaches eight years of age, that child can no longer develop D.F.  The CDC warns of several common sources including, as the title stated, toothpaste, if swallowed, and water and processed beverages, which can account for up to 75 percent of fluoride intake.   Among the numerous recommendations proffered by the CDC include labeling the fluoride concentration of bottled water, as such labeling would allow consumers to make informed decisions.

So what does the FDA say about fluoride in bottled water?  According to the FDA’s science wizards, like these two obviously candid scientists, the amount of fluoride in bottled water varies from .8 to 2.4 milligrams per liter of fluoride.  One of the factors used by the FDA in determining the acceptable amount of fluoride in bottled water is the annual average daily air temperature at the location where the bottled water is sold.  See why I called them wizards? The FDA does not require bottled water manufacturers to list the fluoride content on the bottle, but it does require fluoride additives, if used, to be listed.  In 2006, the FDA approved this labeling: “Drinking fluoridated water may reduce the risk of tooth decay.”

With respect to Ms. Nemphos’s case, the district court found that if it were to grant the relief sought by Ms. Nemphos, it would require the defendants to maintain fluoride levels below the FDA’s established limits (which again were set by stock photo wizards) or to contain warnings not required by the FDA. Ms. Nemphos argued her failure to warn and misleading marketing claims against Nestle and Dannon were not preempted by federal law.  To its credit, the Fourth Circuit made their its thorough history of food packaging and labeling as interesting as possible.  Essentially, the Fourth Circuit found that the Nutrition Labeling and Education Act of 1990, which contains the national uniform nutrition labeling provisions, forbids states from establishing any requirements that are not identical to federal requirements in five areas of food labeling, including “standard of identity.” Reduced to its essence, federal statutes convey significant powers to the FDA to regulate food safety. This statutory charge reflects the all-around benefits of uniform food labeling. One of the FDA’s crucial tools in its regulatory effort is the standard of identity.

Regarding the other products, the Fourth Circuit brushed off Ms. Nemphos’s argument in a much briefer fashion, stating “Nemphos’s concern thus involves the failure to warn that fluoride—even at permissible levels, without any addition by manufacturers—may contribute to causing dental fluorosis over time.”

At Abnormal Use, we encourage those over the age of eight to brush their teeth and drink water, so long as the average daily temperature where you live fits the FDA’s guidelines.  Also, if you swallow your toothpaste, stop, as that’s just weird.

Rick Springfield (And His Rear) Not Liable In New York Personal Injury Suit

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At long last, we have some resolution to the now infamous Rick Springfield butt-injury case.  Last week, a jury returned a verdict in favor of Springfield, finding that his hindquarters were not responsible for the injuries allegedly sustained by 45-year old Vicki Colcagno way, way back in 2004.  Colcagno alleged that during a concert at the New York State fair, Springfield was jostled by the audience and lost his balance, causing his rear to strike her.  The butt-hit allegedly knocked Colcagno to the ground where she struck her head, causing a traumatic brain injury.  Exhibit A (pictured above) of Colcagno’s case was a picture of Springfield’s rear end taken just moments before the alleged incident.  After all the evidence was heard, the jury took 61 minutes to render a defense verdict.

The location of the allegedly dangerous body part aside, we here at Abnormal Use are not surprised by the jury verdict.  Colcagno had no witnesses from the concert to corroborate her story.  She had no video evidence (aside from the aforementioned pre-accident butt shot).  After the alleged incident, she remained at the concert and continued taking fan photos of Springfield.  She also attended a Cyndi Lauper concert a week after the Springfield incident. (Lauper kept her body parts on stage).  Moreover, the jury probably didn’t like hearing how Colcagno asked Springfield for concert tickets during a 2010 deposition.

In any event, we applaud Springfield and his legal team for following this case through to trial.  Settlement would have undoubtedly been the path of least resistance.  The life of an 80’s pop star is certainly busy and keeping up with litigation was probably not high on his list.  But, rather than settle, Springfield boldly stuck to his position that he did nothing wrong. Now, if Springfield can channel the momentum of this trial victory into a new “Jessie’s Girl,” we can all be winners.