Late last year, NBA Commissioner David Stern fined the San Antonio Spurs $250,000 for benching its star players for a November 29th game in Miami. As you might recall, Spurs coach Greg Popovich elected to rest star players Tim Duncan, Manu Ginobli, Tony Parker, and Danny Green against the Heat for the last game of 6-game road trip. We here at Abnormal Use refrained from voicing our opinions on the fine because it was not necessarily a legal issue at the time.

Now, Miami lawyer, Larry McGuinness, has made it one – and opened the door for an Abnormal Use critique.

McGuinness filed a class action lawsuit against the Spurs in a Miami-Dade County court over the incident, alleging that the team violated the State of Florida’s unfair trade practices laws. The suit alleges that Popovich “intentionally and surreptitiously” sent the players home without the knowledge of the league. As a result, fans allegedly suffered economic damages in paying a premium price for a ticket. McGuinness, who bought his own ticket to the game on the resale market, compared the situation to a disappointing meal at a steakhouse:

It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak . . . . That’s exactly what happened here.

We understand the disappointment. No one likes to show up to a game only to discover that a star player is M.I.A. However, our sympathy ends there. From a legal perspective, we question the validity of McGuinness’ suit.  Tickets to sporting events are usually revocable licenses which provide the holder the right to attend a game.  The team can revoke the license at any time, for (essentially) any reason.  It seems illogical to perceive a situation where McGuinness can successfully bring a suit for events that happened within a game when his own license to said game could be unilaterally revoked prior to the game without repercussions.  Moreover, McGuinness has filed suit against the Spurs – not the Heat, the team who issued him the license in the first place.

Even assuming McGuinness has grounds for a cause of action against the Spurs, just how has he and the rest of the class been damaged?  We understand that this was a “premium” game and that fans may have paid a higher ticket price.  However, McGuinness bought his own ticket through the resale market – any premium he paid was not that charged by the team or the NBA.  Sure, he may have been deprived of the opportunity to watch the Spurs’ stars, but he still had the chance to observe Lebron James, Dwayne Wade, and Chris Bosh fine tune their craft.  Even without the Spurs’ stars, the trio struggled to a 105-100 victory.  We wonder if McGuinness would have preferred a Heat loss to a fully-manned Spurs?

From a fan’s perspective, this suit could set an unwanted precedent.  Requiring teams to play – rather than strategically bench – otherwise healthy players will place teams in precarious situations.  Imagine the backlash if star player is injured in a meaningless game against a woeful team simply because he was required to play.  We are thinking most fans would prefer that their favorite players sit for a game if it helps bring home a title. If teams are required to play players, where does the NBA draw the line?  What if a player is medically cleared to play, but wants another day to rest a sprained ankle?  What about a death in the family just before game time?  While it is unlikely that an entire starting lineup would be simultaneously plagued by these conditions, they do arise.  Some fans – like McGuinness – will continue to have their gripes, so should they continue to bring lawsuits?

Again, we understand the frustration of attending a game only to discover a star player is not in attendance.  However, it is a part of the game and a part of the risk involved when purchasing a ticket.

As we have discussed in prior posts, warnings involving medical devices and/or prescription drugs are issued not to the end user patient, but to the doctor prescribing or using the device.  This does not, however, release the drug or device manufacturer from the duty to adequately warn of the dangers of using the device or product.  In fact, it simply complicates the issue of what an adequate warning looks like. Take the recent case of Horrillo v. Cook Inc., 10-15327, 2012 WL 6553611 (11th Cir. Nov. 7, 2012) [PDF].  This case involved a stent manufactured by the defendant and approved by the FDA for use in bile ducts.  Dr. Michael Rush, however, used it during his angioplasty surgery on Margaret Horillo, not in a bile duct, but in her renal artery.

Within 24 hours of the procedure, Ms. Horillo suffered a serious stroke.

The warnings included by the manufacturer read as follows:

First, it stated that the device was “intended for use in palliation of malignant neoplasms in the biliary tree,” which is to say, treatment for cancer in the bile ducts. Second, under a heading entitled, “WARNINGS,” the instructions for use cautioned that “[t]he safety and effectiveness of this device for use in the vascular system have not been established.”

Deposition testimony in the case, however, revealed that stents such as this one were regularly used “off label” in the vascular system.  In fact, Dr. Rush had used this particular stent in the past in renal arteries.  The off-label use was so widespread, in fact, that the FDA called Cook and several other such manufacturers together about the issue before this surgery was performed.  As a result of that meeting, Cook sent a letter to the hospital where Dr. Rush did the surgery warning of the risk of stroke.

We’ve been blogging pretty regularly about the cases coming out of the case of Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).  The cases have presented interesting class action issues, as well as novel statutes of limitations issues.  On December 14, 2012, the second district court of appeal of Florida rendered its decision in Smith v. R.J. Reynolds Tobacco Co., No. 2D11-2562, 2012 WL 6216756 (Fla. Dist. Ct. App. Dec. 14, 2012), another case which provided Florida the opportunity to navigate “the interplay of the Florida Wrongful Death Act and the Florida Rules of Civil Procedure.” Some background first.  Della Mae Butler was a plaintiff in a personal injury action against several tobacco companies; as the court notes in its decision, she was pursuing a so-called “Engle claim.”  After she died, the personal representative moved to amend the complaint to substitute himself as the plaintiff and to add a wrongful death claim.  The circuit court denied the motion and dismissed  the complaint. Here was the issue:

Under the Wrongful Death Act, “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.

Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules.  The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death.  This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict.  We will continue to watch this interesting line of cases.

Juries are fickle.  There is just no getting around it.  Ask any seasoned trial attorney, and he or she can probably tell you about the jury that “got it all wrong” – not simply, perhaps, because they ruled against the lawyer’s client, but because their award or decision defied all logic. That was the issue that confronted Florida’s third district court of appeals in the case Tricam Ind  ustries, Inc., et al v. Coba, 100 So.3d 105 (Fla. Dist. Ct. App. 2012), reh’g denied (Nov. 19, 2012) [PDF].  The case centered around a ladder manufactured by Tricam Industries and sold by Home Depot.  The decedent, a civil engineer, died 10 days after falling from the ladder from injuries sustained in that fall.  The plaintiff alleged strict liability and negligence against both defendants in several particulars, including manufacturing and design defects.  At trial, the evidence focused only on the design of the ladder, however.   Specifically, the plaintiff’s expert opined that the design of the ladder was such that it could give the impression of being in the locked position when, in fact, it was not.    The defendant’s expert, predictably, opined that the ladder could not “false lock.”

Prior to closing arguments, the plaintiffs withdrew the manufacturing defect claims.  In addition, the court limited the jury instructions to design defects in both the  strict liability and negligence theories.  The jury, however, returned a verdict finding that there were no design defects, but that the negligence of the defendants was a legal cause of the decedent’s death, and awarded more than $1.5 million to the plaintiff. After trial, the defendants argued that the verdict should be set aside because the finding of no design defects was fundamentally inconsistent with its finding of negligence.  The plaintiff also moved for a new trial based on some issues with one of the jurors not pertinent to a products liability discussion.  The trial court denied both motions.

The appellate court considering the defendants’ motion reversed the trial court’s decision.  First, however, it noted that a reversal on such grounds is no small task, given the fact that the defendants had failed to object to the verdict at the time it was rendered:

The plaintiff concedes that the verdict in this case was inconsistent, but argues that the defendants waived their objection to the inconsistency by failing to object before the jury was discharged. Normally, we would agree. The Fourth and Fifth District Courts of Appeal, however, have carved out an exception to this general rule where the inconsistency “is of a fundamental nature.” Because we agree with the well-reasoned opinions of our sister courts to the north, and because there is no case in this district which has held to the contrary, we adopt the “fundamental nature” exception as applied in this context.

In November of 2012, we blogged about the Castleman case, the most recent Engle decision in Florida, where the court found itself in the strange position of hearing the plaintiff argue for an earlier manifestation date in his smoking/lung injury case.  Usually, the plaintiff is arguing for a later date to prove that he hasn’t blown the statute of limitations.  But, as we discussed in that post, the earlier manifestation date would have allowed the plaintiff to gain class member status, affording him the benefits of certain preclusive findings in his own case.

Well, Engle issues also arose in the October 2012 decision of Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152 (Fla. Dist. Ct. App. 2012) [PDF].  This case involved, predictably, the death of the plaintiff’s decedent as a result of smoking Philip Morris-manufactured cigarettes.

The other issue before the court in Barnabell, as in Castleman, was the statute of limitations.  Philip Morris argued that the court erred by not granting the company’s motion for summary judgment on the issue.  This appeals court affirmed the trial court’s decision and declined to grant Philip Morris judgment as a matter of law.

Specifically, the issue was whether the statute of limitations began to run when the decedent started to experience lung-related conditions including shortness of breath, “hard breathing,” and other breathing-related difficulties, or whether the clock didn’t start until the decedent was specifically informed by her doctor that she suffered from smoking-related emphysema and, later, lung cancer.

The court held that the latter diagnoses should be the measure by which the statute of limitations was calculated:

In this case, the trial court directed a verdict on PM’s affirmative defense that the statute of limitations barred Barbanell’s claim of wrongful death from lung cancer, and the jury made the finding that Shirley Barbanell did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that Mrs. Barbanell was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer. We therefore affirm the trial court in all respects as to the direct appeal and cross-appeal. 

On August 17, 2012, the Florida District Court of Appeal issued its decision in Castleman v. R.J. Reynolds Tobaco Co., 97 So.3d 875 (Fla. Dist. Ct. App. 2012) [PDF].  The case represents another decision arising out of the Engle class action against the tobacco company, jurisprudence which Abnormal Use has been following for some time now.  Prior posts on the subject can be found here. As a reminder, the Engle class is comprised of Florida citizens and residents, and their survivors, “who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”  Those who fall into that class enjoy, inter alia, an extended limitations period for filing suit and res judicata on several findings of fact.

Two other dates are extremely important for those seeking membership in the class.  First, the class member(s) have to show that their tobacco-related disease or condition first manifested itself before the trial court’s order certifying the class, which was filed on November 21, 1996.  Second, suit must have been filed before January 11, 2008.

And now to the facts of this case.  Lewis Castleman started smoking cigarettes at the age of 19 in 1953.  He continued to smoke for 30 years but quit in 1983.  It was not until the early 1990′s that he began experiencing shortness of breath and chest pain, and it was not until 1998, when he underwent heart bypass surgery, that his doctors linked the symptoms to his smoking history.

Mr. Castleman and his wife sought membership in the Engle class, but the trial court denied them membership.  The appeals court affirmed summary judgment for R.J. Reynolds in this case, holding that because Mr. Castleman did not attribute his symptoms to his smoking history until 1998, he did not meet the class definition as of November 21, 1996 because the disease or condition had not “manifested” by the applicable date.

The appeals court relied on another case, Frazier v. Philip Morris USA, Inc. [PDF], in which the Third District Court of Appeal considered the definition of “manifestation” and held that symptoms such as shortness of breath and persistent coughing did not constitute a sufficient legal basis for intiating a lawsuit against a tobacco company – there must be something more that causes the individual to attribute the symptoms to tobacco use.  Because Mr. Castleman did not make that connection until 1998, the court reasoned in this case that the condition did not “manifest” itself before the date of the court’s order.

It strikes me that the courts in these cases are defining “manifestation” in a way that is 180 degrees from the way it is interpreted in many other cases.  It is strange to have a plaintiff arguing for an earlier manifestation date; usually, under traditional discovery rule interpretation, it is the defendants arguing that the plaintiff “should have known” that his disease was caused by the product at issue at an earlier date than the plaintiff cares to acknowledge.  In these cases, however, to have a chance at class membership, the plaintiffs are actually arguing for the earlier date, so that they can get the benfit of the Engle class provisions.  We will continue to monitor – and report on – this very interesting class as it develops.

On October 1, 2012, the Southern District of Florida issued its opinion in the case Hernandez v. Altec Environmental Products, LLC, No. 10-80532-CIV, 2012 WL 4511341 (S.D. Fla. Oct. 1, 2012).  The case involved Guadalupe Hernandez, an employee of Asplundh Tee Expert Co., who suffered a severed hand while operating a wood chipper manufactured by Altec Environmental Products, LLC (“AEP”).  Mr. Hernandez and his wife brought suit against AEP and another Altec entity, and both defendants moved for summary judgment in the case.

The wood chipper at issue in this case was a CFD 1217 model.  As designed and manufactured, the wood chipper had a guard that covered the bottom of the housing for the in-feed roller, which was referred to by the Court as the safety cover.

The safety cover was bolted to the wood chipper with eight bolts.

Here’s a picture we found of the chipper:

More pictures can be found here.

On the day of the accident, however, the safety cover was not on the wood chipper.  Why?  Because it had been removed by the Plaintiff’s employer.  Mr. Hernandez was aware of that fact.  Apparently, the safety cover was removed because the machine had a tendency to jam with debris, which needed to be constantly cleared from the in-feed rollers to keep the machine working.

Mr. Hernandez had been trained by his employer to clear debris from the machine with his hand, which could only be done with the safety cover off the machine.   Mr. Hernandez was not paying attention as he cleared debris with his hand on the day of the accident, and that’s when he got his hand severed.

At the summary judgment phase, the Plaintiffs argued the machine was defectively designed, causing it to jam repeatedly.  Plaintiffs contended that this purported defect actually encouraged operators to remove the guard and leave it off, which they argued was a foreseeable event.  This was a creative argument, but the Court wasn’t buying it:

At the hearing on the instant motion, the Court pressed Plaintiffs’ counsel to cite any cases that held a manufacturer strictly liable for failing to modify a design of a product that when used as directed was not harmful or dangerous, but when foreseeably misused or put to an unintended use, could be found to be unreasonably dangerous.

The plaintiffs cited Norton, an Eleventh Circuit case in which the key piece of evidence against the manufacturer on a design defect theory was the failure to install a dead man’s switch on a mower.  But the Court in this case quickly dismissed that argument:

Carnival Corporation, and its subsidiary, Costa Cruises, face an onslaught of litigation relating to the January 2012 accident in which a Costa Concordia Cruse Ship ran aground and capsized.  Shocking, right?   The most recent lawsuit filed in Florida state court alleges, among other things, a products liability claim alleging the ship’s hull and power systems were defectively designed.

I’ve always looked at those mammoth cruise ships that resemble high-rise condos stuck on a barge and thought they were an accident waiting to happen.  But, then again, I know nothing about ships.

Based on a press release from the Plaintiffs’ attorneys, it appears that they will float (pun intended) the theory that the Concordia depended on stabilizers to keep it from rolling over in an emergency situation, but those stabilizers were of no help when the ship lost power.   Ergo: defective design.  The release states that Carnival was aware of problems when in February 2010 the hull of Carnival’s Costa Europa was punctured against a dock which created a small hole 6 foot that caused to ship flood and list.  It further states that in November 2010,  the Carnival Splendors ship was stranded off the coast of Mexico due to a catastrophic failure of a generator in one of the engine rooms as well as the failure of a backup generator.

The blogosphere is already analyzing the liability claims in this matter. Again, I’m no seaman, but a purported naval architect and the author of The Old Salt blog finds such a theory is way off base.   He notes that, in spite of their name, stabilizers on cruise ships have almost nothing to do with the stability of the ship.  He believes that ultimately the design did not cause the Concordia to capsize.  Apparently, “[a]ny ship suspended on rocky ledges at the bow and stern with the midships no longer supported by the buoyancy of the water, will roll one way or another.”  Who would have thought that hitting a huge rock, as opposed to a defective design, could have been the cause of the collision?

Thinking about trying one of those electronic cigarettes to help you quit smoking?  May we suggest going with the nicotine gum instead?  It may taste terrible and be tough to chew, but at least it won’t blow up in your face, as one Florida litigant is now alleging.  His electronic cigarette allegedly blew up in his face, leaving him in a hospital with severe burns, missing his front teeth, and missing a chunk of his tongue.

The man was in his home office when the device allegedly exploded, leaving behind burned carpet, furniture, pictures, and office equipment.  That must have been quite the explosion.   The culprit appears to be a faulty lithium rechargeable battery inside the device.  Investigators do not know the brand of electronic cigarette or type of battery. The fire department chief, Joseph Parker, said that ”the best analogy is like it was trying to hold a bottle rocket in your mouth when it went off.”  Ouch!  With a statement like that, we’d say its a pretty safe bet that Chief Parker will be called as a witness for the plaintiff if a lawsuit is filed when a lawsuit is filed.

We previously reported on some of the issues surrounding electronic cigarettes here and here.  However, we certainly didn’t see this BOMBshell coming.  It should be interesting to see what may have caused this explosion, since there appear to be no other similar incidents involving electronic cigarettes.  Was this guy using the device improperly?  How old was this electronic cigarette? Was the battery put in incorrectly?  Did Al-Qaeda get their hands on it?

Discovery in this case should be interesting.

I’ve handled products cases involving a wide spectrum of products, from residential gas grills to tractor-trailer components.  Frankly, I enjoy the variety and the opportunity to learn about new industries and products and meet the people who are associated with them.  I understand, however, that many lawyers – especially plaintiffs’ lawyers – often focus on one product.  It gives them the ability to develop and expertise on a certain subject and, as a result, handle more cases because of their familiarity.

I spoke with a plaintiff’s attorney recently who files a lot of litigation on behalf of plaintiffs allegedly injured by portable gas cans.  Although we didn’t speak at length about the issues involved with the particular product, he mentioned something about an inexpensive component part that prevents fires but was not readily incorporated into the cans themselves by the manufacturers.  A simple Google search on “gas can litigation” revealed that many plaintiffs’ attorneys actually list this type of litigation on their websites as a distinct area of would-be expertise, proving what the lawyer had impressed upon me: that gas can litigation is big business these days.

I ran across the recent case of Murray v. Traxxas Corp., — So. 3d —, 2D10-3789, 2012 WL 279657 (Fla. Dist. Ct. App. Feb. 1, 2012), which appears to illustrate my colleague’s point.  The facts of the case are relatively simple.  Two boys were trying to build a fire using leaves, sticks, and a cigarette lighter at their grandparents’ house so they could roast marshmallows.  They had trouble lighting it, so they searched for an alternative fuel source.  What they found in the garage was a portable gas tank containing gasoline.  As one of the boys tipped the open gas can toward the pile of leaves and the lighter, before any fuel spilled out of the can, an explosion occurred.  One of the boys sustained severe burns as a result of the explosion.

Witnesses who looked at the gas can after the accident, including a fire inspector, described the can as looking “bowed out.”  Photographs were taken by the inspector, but the can was disposed of by the grandparents, who believed it still posed some danger.

Inevitably, a battle of the experts ensued; it focused on whether a “flashback” explosion had occurred.  The plaintiffs’ expert argued the can was defectively designed because it did not have a so-called “flame arrestor,” an inexpensive component that would have prevented such an occurrence.  According to the expert, “flame arrestors are readily available on the market and have been incorporated by other manufacturers into similar fuel cans,” and by not incorporating one into this particular can, the manufacturer defendants were negligent.

The defendants moved for summary judgment, which the trial court granted on the grounds that the can itself had not been maintained for inspection and testing.  As the appeals court remarked, the disposal of the gas can gave rise to two particular problems for the trial court.  First, there was no way to tell whether the original fuel was in the can, or whether it had been replaced by a different fuel.  Second, the trial court held, the plaintiffs could not meet their burden of proof to show design defect because the can itself could not be tested. The court of appeals didn’t see it the same way.  It noted that the plaintiffs had proven an unbroken chain of custody for the can and its contents.  Furthermore, the court observed, it was unlikely that the original can could have been tested at all after the damage it sustained in the explosion and, in any case, similar cans could be tested because the manufacturer had been positively identified.  The appeals court reversed the summary judgment and remanded the case for further proceedings.

We don’t yet know the outcome of this case, but from a plaintiff’s attorney’s position, this litigation is pretty savvy.  Here is a product that, allegedly, can be made safer with a very inexpensive device.  That, combined with the potential for serious burn injuries and property damage from cans without the device makes it a pretty attractive piece of litigation. Defense lawyers should be aware of these arguments when defending these cases and prepare for them accordingly.