ABA Best Blawgs 2011 – Would You Nominate Us?

We’ve been doing this blogging thing for about twenty months now, and we’ve enjoyed bringing you legal news and irreverent commentary on products liability issues. One of our proudest moments here at Abnormal Use was when we were included on the ABA Journal‘s annual list of the 100 best legal blogs last year. We very much appreciated the support of our readers who nominated us for inclusion on that list. Guess what?  The ABA Journal is now seeking nominations for this year’s list.  We humbly request that you, our dear readers, nominate us for the honor again this year.

You can do so by clicking here and briefly completing the very short nomination form. It should take only a few short moments to complete.

Be sure to tell them what you’ve liked about Abnormal Use this year (as the folks at the ABA Journal are looking for specifics). So far, we’ve had a pretty good year, if we do say so ourselves. We’ve continued to bring you the latest state and federal legal news and case commentaries in the products liability field.  We have interviewed a number of intriguing law professors, practitioners, and Hollywood celebrities (including the writers and producer of the 1991 film Class Action and even Mark-Paul Gosselaar and Breckin Meyer of TNT’s “Franklin & Bash” TV show). We offered some critical commentary on Hot Coffee, the would-be documentary film by plaintiffs attorney Susan Saladoff, which earned us shout-outs from both The New York Times and National Public Radio.  In March, Scientific American picked up a story we did on a series of predictions made in 1931 about the year 2011. We even came up with a comprehensive list of songs about attorneys and judges and authored what we thought was a pretty darn funny April Fool’s Day joke on the Star Wars prequels.  And, of course, each Friday, we have brought you a different legal themed comic book cover (which, you might not realize, is actually pretty difficult, as finding all of those legal comic book covers is sometimes like finding a needle in a haystack). We’ve even set up a page on Facebook. All of this we have enjoyed doing immensely.  Throughout this enterprise, we have also made a number of good friends in the legal blogosphere.

Which brings us back to our humble request for a nomination. Take a look at the nominating form and the ABA Journal‘s brief guidelines for submission.  If you enjoy the commentary we offer here and would like to support us in this endeavor, we would very much appreciate it. Nominations will be accepted until September 9.

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

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

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

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

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

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

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

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

Abnormal Use at the ABA Joint CLE Seminar in Colorado

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

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

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

ABA Joint CLE Seminar Liveblogging (Day 2)

Although this morning’s program began a little later (although still early at 7:30 a.m. local time) the room was still bare with only two minutes to go before the official start-time. People slowly trickled in as the program began. The first topic of the day was effective and inexpensive technology and presentation techniques, moderated by John T. Lay, Jr., of Ellis, Lawhorne & Sims in Columbia, South Carolina. Panel members were Robert L. Featherly of Litigation Insights, a company offering jury research and trial presentation services; defense litigator Cathy Havener Greer of Wells, Anderson & Race, L.L.C. in Denver, Colorado; and the Honorable Michael J. Watanabe, a federal magistrate for the U.S. District Court for the District of Colorado.

The lesson of the day: Just because you can conduct a high tech trial in a fully wired courtroom does not mean that you should necessarily do so. For half an hour, the panelists discussed the history of courtroom technology and the tools of the trade, beginning with blackboards all the way to creative computerized visual animations and the latest technological gadgets.

Above: The view from the conference center.

As a no-nonsense judge who takes control of his courtroom, Magistrate Judge Watanabe told the attendees that he expects three things from lawyers in his courtroom: professionalism, preparedness, and punctuality. It is essential for practitioners to know both their jurisdiction and their audience, but also to be ready for anything unexpected (whether that be the judge’s refusal to permit certain evidence or the crashing of one’s computer). He reminded those assembled that it is the judge – not the lawyer – that decides the order and the manner of the presentation of evidence during a judicial proceeding.

Another lesson: The biggest mistake that lawyers can make is to allow technology to interfere with their connection to the jury. Technology, if relied upon too heavily, can create too much distance between the advocate and the finder of fact. As aptly pointed out by Mr. Lay, a lawyer’s charisma and voice are key to any attempt to make a connection with a jury. For that reason, he advocates using technology to enhance a presentation or to highlight a key theme or exhibit, but not to overpower it. Mixing high-tech exhibits with good communication not only fosters the credibility with the jury, but also maintains the jury’s interest, which would certainly wane otherwise. Overall, the session offered some good pointers applicable to any practice area.

Above: The conference center itself.

The seminar then became an interesting plenary session on the role of the human genome and genetic testing in toxic tort and mass tort litigation. The use of DNA testing to determine whether an individual could be or has been injured by an alleged exposure to toxic substances is a cutting edge, but it could one day become central in mass tort and products liability cases. Law professor Gary E. Marchant of Arizona State University commented that, within just a few short years, we will all be “genotyped” and will know our particular traits and susceptibilities. That information can obviously be used in multiple various ways by both plaintiffs and defendants.

Dr. Marchant explained that genes express themselves in different ways when exposed to different chemicals. For instance, in instances of Benzene exposure alleged to have caused leukemia, in approximately 80 percent of such cases, chromosomes 5 and 7 will break. That fact can help to determine whether Benzene exposure actually played a role in the alleged injury.

Above: Just outside the conference center.

What will this mean for litigation? These issues will, of course, continue to develop along with the science. Key issues for the future will be whether manufacturers will have to warn against particular susceptibilities affecting small percentages of the population. So far, the Fourth Circuit has at least determined that there is no duty to protect unusually susceptible people. This may be the way that the law develops at least in the context of strict liability. Turning to negligence, however, as duties extend to even eggshell plaintiffs (you take them as you find them), manufacturers could find themselves on the hook. Another key question is whether courts will one day require that a plaintiff produce evidence of “biomarkers,” or some change in the genes to establish exposure to a particular product or substance. Time will tell.

Last, but certainly not least, the seminar divided into several smaller break-out sessions. Essentially a review of developments in 2009, the products liability session generated much discussion about the new Medicare legislation, which will require that insurers report payments to Medicare-eligible claimants to the Centers for Medicare Services.

Overall, the 2010 ABA Section of Litigation’s Joint CLE Seminar was fruitful and productive. Now it is time to join everyone on the slopes!

ABA Joint CLE Seminar Liveblogging (Day 1)

The ABA’s Section of Litigation Joint CLE for the Environmental, Mass Torts and Products Liability Committees is officially underway! It is touted as one of the most successful joint committee endeavors in the ABA. Given that so many issues are common among these areas of the law, and with the growing limitations on travel and resources, it makes even more sense that these committees work together.

It was an early start to the day in Beaver Creek, with breakfast starting at 6:00 a.m. and the obligatory ethics CLE session at 6:30 a.m., before the sun has risen above the surrounding peaks. It was particularly early given that the seminar kicked off with a welcoming reception last evening, followed by dinner in Beaver Creek Village. But, the early start time is undoubtedly designed so that the sessions can end midday, allowing attendees plenty of opportunity to take in the slopes and go to the spa.
There were no topics on the agenda for today that were substantively related to products liability. Those sessions, particularly including the products liability update from 2009, are set for tomorrow. However, many of the sessions today provided general tips, techniques and information that can, of course, be applied to a products liability practice.
The ethics session was fairly interesting, with a focus on the ethical limitations of making statements about clients or litigation outside of the courtroom, particularly in high profile cases in which you may find yourself standing front and center with a microphone in your face. The panel, composed of attorneys from both sides of the courtroom, along with a member of the judiciary, the Honorable Kristen L. Mix of the District of Colorado, discussed how they would handle various scenarios. As always, it was good to hear a judge’s insight on how to conduct yourself in representing your client, both inside and outside of the courtroom. The best tidbit of advice from Judge Mix? “Mea culpa goes a long way.” If something goes awry, fess up about the matter before the court and offer ways to fix it. The judge will at least respect that you comprehended the rules and recognized your misstep.
The seminar next moved on to a reflection from in-house counsel on the economy and its effects on their litigation and practice. The panel was comprised of current in-house counsel for Coca-Cola Company, Livingston Johnson; Alcon Laboratories, Inc., Jerry Bradford; and Electrolux, Sharon A. Luarde. The fourth panel member, Laurie A. Polinsky, who now finds herself a casualty of the declining economy, was former assistant general counsel for Sanofi-Aventis and then for Amgen. The panel did a great job of moving beyond the topic that reverberates through most panel discussions involving in-house counsel (that being, the likes and dislikes of their relationships and interactions with outside counsel). Rather, they discussed the present strains and pressures under which they now find themselves and how that is necessarily trickling down to outside counsel, from budget issues to increased demands on time.
The last plenary session of the morning addressed legal tactics to use with suspected baseless or fraudulent claims. As promised, the Honorable Judge Janis Graham Jack was on the panel and described how she came to uncover mass fraud in the silica litigation. With her background as a nurse before going to law school and making her way to the bench, she was well-suited to understand the medical issues that led her to determine that a handful of doctors had been manufacturing diagnoses of silicosis for money. Other well-known mass fraud cases, particularly relating to Fen-Phen weight loss pills and to cases filed against Dole arising from the use of pesticides on banana farms in Latin America (banana farmers claimed that the pesticides rendered them sterile), were also addressed. The short of it, as advice for attorneys to take away, is to know the medicine. You have to know the medicine in order to ferret out if there is any fraud in how the person came to be diagnosed with some medical condition caused by a product. And, if there is fraud, because you may not have the benefit of having Judge Jack with her medical knowledge and background, you have to be ready to educate the court.
Overall, this morning’s sessions offered some good refreshers and practice pointers to keep us on our toes in the face of fast-paced litigation.
What’s next? Time to get down to business with committee business meetings and plans for 2010! Then it will be off to some mingling and a dinner event for seminar attendees.

Live Blogging the ABA Joint CLE Seminar in Colorado

This morning, I am making the trek out to the Park Hyatt Beaver Creek Resort and Spa, the location for this year’s American Bar Association Section of Litigation “Environmental, Mass Torts and Products Liability Litigation Committees Joint CLE Seminar” in Avon, Colorado. (You can see the brochure for this conference here [PDF]). I’ll be live blogging the event and plan a series of short posts over the course of the conference. Nestled among mountain peaks that rise up to 14,000 feet, the resort is in the heart of Beaver Creek Village in the beautiful Vail Valley. It is hard not to be excited about such a beautiful destination, with some free time built into the schedule to take in a few downhill runs or, perhaps, a spin on the ice rink.

There are many reasons to look forward to this CLE seminar. Not only will there be an opportunity to catch up on the latest legal news and litigation techniques, there will also be break-out organizational meetings for the Section’s substantive subcommittees. At this conference, plans for the coming year are solidified and assignments are made to various subcommittees. If a lawyer wants to be involved in the environmental, mass torts or products liability committees, this is the place where he or she would begin that path.

As for the CLE program, there are, of course, multiple featured speakers of interest, from trial counsel and experts to members of the judiciary, including the Honorable Janis Graham Jack of the U.S. District Court for the Southern District of Texas. Those attorneys involved in silica litigation or who have represented manufacturers of asbestos-containing products are undoubtedly well familiar with Judge Jack. In 2005, she garnered much attention after issuing a 249-page order in In Re Silica Products Liability Litigation, in which she exposed fraud in the manufacturing of silicosis claims through for-profit mass screenings. 398 F.Supp.2d 563 (S.D. Tex. 2005). A former nurse, Judge Jack found that “[i]n the majority of cases, these diagnoses [were] more the creation of lawyers than of doctors.” Id. at 635. They “were driven by neither by health nor justice: they were manufactured for money.” Id. With such a background, she is well-suited for a panel addressing suspected baseless or fraudulent claims in litigation.

Further, it is no surprise to see a session devoted to the economy and its effects on the practice of law – a topic that has become all too relevant and seems to appear on virtually every program for these types of meetings, along with the impact of the Obama administration, which seems to be a theme that will be intertwined into several of the presentations and panel discussions.

Although provided with some advance materials, attendees must wait to receive materials for the products liability breakout CLE, which will provide a year in review. We are promised some insight on landmark Supreme Court decisions, the new administration, and a focus on health care reform. Panelists Penelope Dixon, Brian Fowler, and Lori Leskin, have reportedly scrutinized the legal trends over the past year and will reveal “what is really going on – including the good, the bad and the ugly of 2009.”

Stay tuned for updates and photos coming Friday and Saturday!