One would think that food poisoning, especially the serious E coli type, might not be that difficult to establish in litigation.  The plaintiff eats food, winds up shortly thereafter with difficult symptoms, rushes to the hospital for treatment, and to top it off, garners a diagnosis of E coli.  Relatively straightforward, right? Apparently, it’s not so simple in Florida.

In Colson v. Tampa Hotel-VEF IV Operator, Inc., 8:10-CV-9-T-30TBM, 2011 WL 5553840 (M.D. Fla. Nov. 15, 2011), the sole issue before the court on the defendant’s motion for summary judgment was causation.  Could the plaintiff, who claimed she contracted E coli after eating a tainted cheeseburger at a hotel, prove that the cheeseburger was, in fact, the culprit?

The answer: no. According to the Florida federal court, “[i]n food poisoning cases, while a plaintiff may establish causation by either direct or circumstantial evidence, courts have routinely found that a mere showing that a person became sick subsequent to eating food is insufficient.”  Instead, the plaintiff must provide some evidence that the food in question was actually contaminated or tainted, either through evidence of a food recall, evidence that others became sick after eating the same food, or that the food smelled or tasted funny at the time of consumpton.

So what did the Plaintiff argue in this case?  The court summarizes her case as follows:

Here, Plaintiff contends that she has presented sufficient evidence showing that she contracted E coli from consuming Defendants’ cheeseburger. First, she points out that she started to feel ill approximately twenty-two hours after consuming the burger, which is approximately within the accepted one to nine day incubation period for E coli. Second, Colson’s expert witness testified in his deposition that the cheeseburger was more likely than not the source from which Plaintiff contracted E coli. Asked to explain the basis of his opinion, Dr. Delaportas stated that since Colson “had a cheeseburger in the time frame of incubation, and that is more often the implicating food in these cases than not…I believe it’s more likely than not it was that cheeseburger. I cannot rule out other sources.” (Depo. Of Delaportes, 47-48). Based on this evidence, Plaintiff contends that she has presented sufficient evidence of causation in order to survive a motion for summary judgment.

The court didn’t buy it.

The plaintiff’s expert certainly didn’t help her out very much, testifying that while he believed that the cheeseburger caused her illness, he could not rule out other causes.  Thanks, doc.

In the end, without further proof of a causal link between the cheeseburger and the plaintiff’s E coli, the defendant’s motion for summary judgment was granted.

Abnormal Use has been following the so-called “Engle progeny” cases with interest as they continue to wind their way through the courts.  On September 21, 2011, a court of appeals in Florida dealt another blow to the R.J. Reynolds Tobacco Company in R.J. Reynolds Tobacco Company v. Brown, 70 So.3d 707 (Fla. Dist. Ct. App. 2011) by upholding a jury’s award of compensatory damages to the spouse of a deceased smoker.

This is a well written decision by Judge Dorian K. Damoogian.  It provides a brief and understandable history of the Engle case line to provide context for the Brown decision, and then does the same for the specific procedural history of the Brown case.

Mr. Brown, the plaintiff’s decedent and spouse, was a long-time smoker of cigarettes manufactured by a predecessor of R.J. Reynolds (“RJR”), and he died of esophageal cancer he developed as a result of the habit.  After Engle was decertified, Mrs. Brown sued the tobacco company, relying on certain factual findings that came out of Engle to prove her case for strict liability, negligence, fraud by concealment, and civil conspiracy-fraud by concealment.

The first phase of the Brown trial was devoted to determining whether or not Mr. Brown qualified as an Engle class member, which would entitle his spouse to the aforementioned factual findings.  To prove this, Mrs. Brown had to show that her husband was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death.

After the jury found both of these facts to be the case, the trial moved to phase II, in which the jury was to determine (i) whether RJR’s conduct was a legal cause of Mr. Brown’s death; (ii) comparative fault; and (iii) damages. Before opening statements, the trial court instructed the jury that because it had determined Mr. Brown to be a member of the Engle class, the following findings were binding upon it:

“One, R.J. Reynolds Tobacco Company failed to exercise the degree of care with which a reasonable cigarette manufacturer would exercise under like circumstances. Two, R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective and unreasonably dangerous.”

The court advised the jury that Mrs. Brown had admitted Mr. Brown was comparatively negligent.  The jury found RJR’s negligence was a legal cause of Mr. Brown’s death; RJR’s defective and unreasonably dangerous cigarettes were a legal cause of Mr. Brown’s death; and RJR and Mr. Brown were each 50 percent responsible for Mr. Brown’s death. The jury awarded Mrs. Brown $1.2 million in compensatory damages, which the court later reduced to $600,000 based on the jury’s apportionment of fault. The trial court entered a final judgment for Mrs. Brown.

At issue in this appeal was the viability of Mrs. Brown’s negligence and strict liability claims.  As the appeals court framed it, “RJR primarily argues that the trial court gave the Engle findings overly broad preclusive effect, relieving the plaintiff of her burden to prove that RJR committed particular negligent acts in violation of a duty of care owed to Mr. Brown and to prove that the cigarettes Mr. Brown smoked contained a specific defect that injured Mr. Brown.”

To no avail.  The appeals court upheld the findings of the trial court as well as the award to Mrs. Brown.  As we have outlined in a prior post, the main dispute was a discussion between claim preclusion and issue preclusion, and the effect and implications of the differences between those two concepts.   It appears RJR was still using the same argument that failed it in the Martin case.  It didn’t work this time, either.

The appeals court made the following holdings in affirming the trial court’s decision:

We here at Abnormal Use have blogged about a few cases involving the Crashworthiness Doctrine, otherwise known as enhanced injury cases.  As we have discussed before, the theory is that although a plaintiff might have suffered a finite number of injuries and damages because of an initial accident or occurrence, his injuries are exacerbated, or he suffers additional injuries, because of some product defect.  More recently, we discussed the concept of comparative fault as it pertains to these cases in the context of a Montana Supreme Court decision.  Read our prior post here.

This week, we were alerted by fellow blawg The Product Liability Monitor to a fight that has been occurring in Florida over this doctrine, which started when the Florida Supreme Court issued its decision in D’Amario v. Ford Motor Co., 806. So. 2d 424 (Fla. 2001) [PDF].  Like the Montana case, the dispute centers on this idea of comparative fault.  A prior post by The Product Liability Monitor summarized the facts and procedural posture of D’Amario as follows:

In D’Amario, the plaintiff was riding in a 1998 Ford Escort when it crashed into a tree.  After hitting the tree, the car burst into flames.  While the driver – who was intoxicated at the time – was killed, the plaintiff survived but suffered serious injuries.  Subsequent to the crash, the passenger’s mother sued on behalf of her son, alleging that the car’s relay switch failed to disengage the fuel pump on impact.  This, she alleged, caused the post-collision fire and the injuries to her son.  At trial, the jury was permitted to consider evidence of the driver’s negligence and thus, the issue of comparative fault.  In doing so, it found for the defendant car manufacturer.  Id. at 428.  On appeal, the Florida Supreme Court reversed.  That court held that while the principles of comparative fault may apply to the causes of the first collision, they do not apply in crashworthiness cases where the sole focus is on the secondary injury. Id. at 441-42.

Well, the Florida legislature didn’t find that to be a wise holding.  In fact, the Florida Senate introduced a bill that would entitle “judges and juries . . . to hear and consider evidence of fault relating to the cause of the initial accident when apportioning fault for injuries caused by a subsequent or secondary accident.”

Well, as reported by The Product Liability Monitor, D’Amario will now be given a neat little red flag in your next Westlaw search, because the Florida legislature has passed that bill.  The real kick in the teeth to plaintiffs?  The law applies retroactively to pending cases.

Late last month, the South Carolina Supreme Court amended its Rules of Professional Conduct to address several lingering issues related to lawyer advertising. The amended Rules are meant to be consistent with the ABA Model Rules of Professional Conduct.  You can read them here. The amendments delete the previous ban on testimonials, eliminate a mandatory solicitation filing requirement and fee, and add requirements for electronic solicitations.

Specifically, advertisements for legal services can now include testimonials IF the ad specifically identifies that the statement is a testimonial, discloses whether or not it was paid for by the lawyer or law firm, and if it was made by an actual client.  Most importantly,  the ad must “clearly and conspicuously” state that the any result achieved in one case “does not necessarily indicate similar results” in another.   Sounds like a really long commercial.  Right?

For a full summary of the new rules, check out blogger Greg Forman’s recent post on the subject here.  He does a great job of laying it out for us.

In the meantime, here is a brief update on what is happening in other states on similar issues:

Florida -  On May 27, 2011, the Florida Bar proposed new rules for attorney advertising which would also allow for the use of some testimonials. See here.

Virginia – Virginia State Bar’s Standing Committee on Legal Ethics has issued proposed amendments to their Rules of Professional Conduct and seeks comments by September 14, 2011.  That’s next week! For a summary of those changes, click here.

Michigan – On July 19, 2011, the Michigan Supreme Court rescinded its previous order that amended that state’s Rules of Professional Conduct and proffered these new amendments. They also provide for a comment period which ends November 1, 2011.

Here’s the deal: the rules have not changed THAT much.  Things have just been clarified a little and updated to include web advertisements and electronic communication.  The same rules of thumb still hold true.  If a statement is a lie, or even stretching the truth, you probably shouldn’t put it in an advertisement pushing your legal services.  You also shouldn’t make any promises or guarantees.  Oh, and keep it classy.  Like this.

Dateline: 12:36 pm, CST, Saturday, September 3, 2011, Pensacola, Florida

Vice Squad here, on location from Florida’s panhandle. I’m on assignment this weekend with a bachelor party for an old friend, conducting field research into the depraved and licentious behavior of young American men bound for holy matrimony. This has required me to go undercover, to blend in with my subjects, to become one of them. Do I do this willingly? Of course not. I do it all in the interests of academic integrity and for the benefit of you, my dear reader. Mostly.

To be certain, I am exposing myself to a certain amount of danger in submitting this field report. As I write, I am sitting outside under the swirling clouds of Tropical Depression Lee. It is gently spitting rain and generally punishing this part of the world with a force equivalent to the cooing of a newborn baby. This weather event, touted as causing a current state of emergency, has prompted local residents to look to the sky and casually proclaim, “Meh.”

The greater danger comes from the circumstances surrounding the preparation of this very post. I’m among five of my closest friends. For a bachelor party. At a beachfront Florida town. On Labor Day weekend. On the first college football Saturday of the season. I’m sure you can imagine how popular I am right now, as I sit here preparing this post. I would love to share with you the things that are being said about me. But I can’t, not unless they’re heavily edited, and even then, I don’t think they’d make grammatical sense. So trust me, I’m enduring a significant amount of personal ridicule to file this field report.

Oh, look. The first round of kickoffs just happened.

The trip so far has been filled with observations about the products we depend on in our daily lives. I’ve highlighted five of those observations for your consideration.

1. Google Maps. We’re staying at my buddy Matt’s house in Pensacola. I’ve never previously been to this city, and frankly, had no idea how to get here or how much time it would take. These problems were quickly solved courtesy of the Google machine. Almost instantaneously, we had alternate routes available and estimated times of arrival. For the most direct route, 7.7 hours from Abnormal Use headquarters in Greenville, South Carolina. No sooner had we gotten this information from Google, something funny happened. We turned on Google. In the blink of an eye, the information provided by Google became an enemy. It was questioning our manhood. “Google says it will take almost 8 hours. That’s [redacted]. I bet we can get there in six and a half. Probably six.” The entire car agreed without hesitation. Literally one minute earlier, none of us had any idea where we were going. One minute later, after Google had shown us the way, we had unanimously voted that Google didn’t know what it was talking about. In fact, we saw Google as challenging us. The machine was daring us to beat its time. Challenge accepted, Google. We left Greenville at 5:45 pm.

We pulled into my pal’s Pensacola driveway at 12:30 am–6.7 hours after departure. Unfortunately, Pensacola is a time zone behind Greenville. It was 1:30 back home. We had been on the road for exactly 7.7 hours. Touche, Google.

2. Chick-fil-A. We decided to stop for dinner on the far side of Atlanta, and we decided there was no better place to recharge our batteries than the Original Chick-fil-A location. The original restaurant is in the Atlanta suburb of Hapeville, which backs up to the far side of the Atlanta airport. If you’ve never been here, you need to go. It’s everything you love about Chick-Fil-A, multiplied by everything you love about Waffle House. There’s table service, a full menu of side items like sweet potato souffle and mac and cheese, and it’s open 24 hours. This raises two important points. First, when I say “full menu,” I mean full menu. Specifically, they serve beef. At a Chick-fil-A. Riddle me that. The second point is even more staggering: it’s open 24 hours. Everyone knows that Chick-fil-A is closed on Sundays. And we have found ourselves on more than a few Sunday mornings wishing that our Creator would make a special exception just one time so we could get a chicken biscuit. Our prayers have gone wholly unanswered. This blew our minds, so we asked our resident Chick-fil-A expert and waitress Tammy how this works. Apparently, the original is open until 4 am on Sunday mornings (almost certainly a prime business time) and then closes until Monday morning. However, Tammy has assured us that she is putting a proposal together to see that the original will also close promptly at midnight. We’re fine with this and we support her efforts. After all, if not everyone can get Chick-fil-A on Sunday, then no one shall get Chick-fil-A on Sunday.

3. Automatic Vehicle Collision Detectors. We took my car to Florida. My car does not have an automatic vehicle collision detector, but I had the next worst thing: my buddy Nick. Somewhere on a quiet stretch of I-65, Nick saw a car on my rear quarter (the only other car around for miles, mind you) start to merge into me. Rather than inform me in a clear, cohesive manner that we were about to be involved in a mass fatality situation, Nick releases an incomprehensible cry that can only be described as the mating call of a yeti. It had been dead quiet in my car before, making his cry that much more alarming. I nearly wrecked from the shock value alone. The merging car moved back in its lane before anything more serious happened. Nick collected himself and explained that the car, at its closest point, was a mere inch away from us. Reports from other parts of the vehicle indicated that while we had a close call, it was nowhere near as close as Nick’s freaking out suggested. Certainly, if we were in danger, a collision detector would be useful, and the risk makes me wish I had the capability in my vehicle. But the fact of the matter is that even if I had a collision detector, Nick’s caterwauling would have drowned it out. Maybe a better feature would have been a cone of silence around his seat. This would have been useful for most of the trip.

4. Cigars. I love a good cigar, especially when I’m driving. There are certain risks involved, though, that are not for the untrained aficianado. First, you’ve got to be careful of where you ash. Hot ash in the lap is not pleasant, not as bad as a boiling hot cup of coffee, sure, but still, not good. Second, you’ve got to be careful about checking your blind spot with a stogie in your mouth, unless you just really like a trail of hot ash streaked across your window. Finally, in particular regard to stick shifts, if you’re pushing into third or fifth while holding your cigar, you’re likely to end up with ash in your cd player. Not that I know first hand about any of these problems . . . .  Moving right along.

5. Matt’s TV. Let me begin by saying that I am grateful for Matt opening up his home to us. However, Matt’s TV is a problem. To be fair, it is a large, flat screen manufactured by a reputable company (which shall remain nameless). And it’s designed for 1080p HD picture quality. Unfortunately, Matt is in a service area that can’t deliver that picture quality, so everything you watch ends up looking like a Tim Burton movie–animated computer graphics. The limited amount of football I’ve been able to watch while writing this post looks like Madden ’12. I say all this for 2 reasons. First, technology is great if there’s the ability to use it. There’s no point in having a Porsche if all the roads are dirt. Don’t get me wrong: this isn’t Matt’s fault. He was relocated to Pensacola from an area that had the ability to deliver high picture quality. But second: now that you’ve moved, Matt, you’ve got to get a TV that doesn’t make everything look like it was made by Pixar.

As an epilogue, I understand that Matt is working on getting a new TV. His flat screen is mounted on the wall with an assembly that is rated to support 30 pounds. Matt’s TV weighs 90. This problem may take care of itself in the very near future.  In related news, I predict my next post will consist of live-blogging a TV falling off a wall.  I’ll be sure to write it with a view toward the post becoming admissible evidence, either in regard to Matt’s insurance claim or his wife’s murder trial.

This is the report from the field. Vice Squad out.

According to a recent story at UPI.com, a Florida man is suing Winn-Dixie for $15,000 because he pricked his finger on a rose thorn, which was allegedly negligently, recklessly, and unforgivably left attached – to a rose!  In the suit, Plaintiff Charles Imwalle of Lake Mary, Florida claims that he suffered pain, disfigurement, medical bills and lost wages as a result of his encounter with the most delicate of flowers.  The suit also names Passion Growers, L.L.C. as the offending gardeners who ignorantly and negligently left the rose in its natural (though beautiful) state of unreasonable dangerousness.

Disfigurement?  Lost wages?  What was this guy, a hand model?

According to the UPI story, Mr. Disfigured’s lawyer declined to comment to the media.  But, thank goodness, we know from the pleadings what Mr. Disfigured’s lawyer thinks should have been done: there should have been antibacterial solution in the buckets in which the flowers were kept.  So, obviously, they’re claiming that the Plaintiff’s finger became infected.  Which begs the question: How long did this guy actually go without washing his hands?

Each week, we seem to be able to find a new ridiculous lawsuit brought by someone with less common sense than the last person.  And yet, this one might take the cake.  At least until next week.

For defendants in products liability actions, the issue of distributor liability is a maddening, state-by-state patchwork of different rules and laws.  The same conduct by one distributor of a product across many states may make it liable for any injuries caused by the product in one state, yet immune from liability in another.  Not only can the role of the distributor be crucial from a liability perspective, but it often has jurisdictional implications as well.  This was the case in Martin v. Medtronic, Inc. and Saracare Corp., 5:11-CV-144/RS-CJK, 2011 WL 2473318 (N.D. Fla. June 22, 2011). The issue was the plaintiff’s motion to remand, i.e. whether the Northern District of Florida had jurisdiction to hear the case at all based on diversity of citizenship.  The plaintiff had sued Medtronic, Inc. and Saracare Corporation on products liability theories, including strict liability, after the death of her decedent allegedly caused by a defective insulin pump.

For diversity purposes, the plaintiff was considered to be a citizen of Florida; Medtronic was a citizen of Minnesota; and SaraCare a citizen of Florida.  No diversity, right?  For all of you with recent memories of law school (which are, alas, distant memories for us), you will understand that the correct answer is always, “Well, it depends!” (For all of you readers who do have recent recollections of law school, be forewarned:  This is also always the right answer in “real life” legal situations, as well). Whatever the case, the jurisdictional question hinged on whether or not SaraCare was a “sham defendant,” in which case the Court would not consider its citizenship for diversity purposes (meaning that there would be diversity after all).  And, since SaraCare was alleged to be a distributor of the insulin pump, the Court’s jurisdictional analysis focused on the potential liability of SaraCare as a distributor. As the Court summarized:

We recently reported here that a South Carolina family-owned tomato farm had sued the United States Food and Drug Administration (FDA) in South Carolina federal court in Beaufort, alleging that the agency was negligent in its issuing of a 2008 nationwide tomato recall.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).  The FDA issued that recall over fears that tomatoes were the source of salmonella contamination, though, ultimately, the outbreak was traced to a source other than tomatoes.  Well, another tomato farm has since joined in filing suit.

Law360.com reports that Williams Farms Produce Sales, Inc., which grows more than 500 acres of tomatoes in South Carolina and Florida every year, filed suit alleging that it lost $11 million as a result of the recall that later proved to be unnecessary.  The latest suit, which was filed less than one month after the Seaside Farm’s complaint, was filed in federal court in Charleston.  Williams Farms Produce Sales, Inc. v. United States, C.A. No. 2:2011-cv-1399 (D.S.C. June 2011).  Lexology.com reports hat the latest complaint includes causes of action of negligence, defamation, slander of title, product disparagement, unconstitutional taking, and violation of unfair trade practices law, for which the tomato grower seeks actual damages in excess of $11 million, special damages, compensatory damages, treble damages, attorneys’ fees, and costs.

These two lawsuits could be the firsts of many, and they certainly demonstrate that the amount of potential damages alleged against the FDA could be staggering.  MiamiHerald.com and FloridaFarmers.org have reported that Florida farmers estimated they lost $60 million as a result of the recall, and that national numbers could be $140 million or more.  They also report that previous attempts in 2008 to acquire voluntary compensation from the government to offset the losses failed, and as such, litigation was almost certain to follow.

To be a good expert witness, a person should be extremely knowledgeable about the subject upon which he or she is opining.  The expert should preferably have a nice balance of practical and academic experience in his or her field, be good looking, well spoken, and able to articulate complex theories into easy to understand, layman’s terms. Oh, and one more thing.  The expert should probably wait until after he or she conducts testing on the product at issue in a case to draft his or her expert report.

In Cannioto v. Louisville Ladder, No. 8:09-CV-1892-T-30TBM, 2011 WL 2014260 (M.D. Fla. May 20, 2011), the plaintiff Robert Cannioto was allegedly injured when the 24-foot ladder he was standing on performing roofing work failed, causing him to plummet 16 to 18 feet to the ground.  The ladder was manufactured by LL. Cannioto and Home Depot, and Mr. Cannioto and his wife Bonnie Cannioto sued these two companies on theories of (1) strict liability against Louisville Ladder; (2) negligence of Louisville Ladder; (3) strict liability against Home Depot; (4) negligence of Home Depot; and (5) loss of consortium against Louisville Ladder.  The defendants filed a motion to exclude the testimony of the plaintiffs’ expert, Dr. Charles Benedict, and for summary judgment.

The plaintiffs hired Dr. Bendedict to render an opinion for them about the design and condition of the ladder at issue in the case.  Obviously, the plaintiffs wanted him to say there was something wrong with the ladder.  So, he did, writing a report in which he opined that the ladder was defectively designed.

Unfortunately, Dr. Benedict couldn’t quite get his tests, conducted after he wrote the report, to match his “findings” that the ladder was defectively designed:

In an attempt to prove his theory that the ladder failed as a result of the effect of torsional forces on a defectively designed foot, Benedict had one of his engineers set up a 24–foot extension ladder . . . in a manner similar to the one used by Plaintiff. He then had the engineer stand on the tenth rung of the fly or extended section of the ladder and violently jerk the left rail for almost 10 minutes in an effort to get the ladder to fail. The engineer also set the ladder on uneven ground and placed large weights near one of the feet in an effort to get the rail to fracture. Benedict’s assistants were unable to get the ladder rail to bend or break during the tests.

Don’t you hate when that happens?  So, the expert changed his theory from design defect to manufacturing defect.  In the middle of his deposition.  Without conducting any testing at all on the theory.

During his deposition, Benedict offered a new theory, one about a manufacturing defect rather than a design defect, as to why the subject ladder failed. He testified that the rungs were not properly or adequately attached to the rail and that the rung pulled out. This theory was not in Benedict’s expert report and Benedict admitted that he had not performed any testing to support this theory.

Here are the lessons that we can take from this case:

In those cases, it is appropriate to do as this court did: deny the motion for voluntary dismissal without prejudice and grant the summary judgment motion.

Lesson #3: Vet Your Clients Properly. The plaintiffs also filed a claim of res ipsa against Kmart. The court granted summary judgment on this claim for two reasons: First, the plaintiffs could not prove that the chair was in the store’s exclusive control because it was in the garden department where people, like Ms. Hall, could sit in it. Second, the court held that the plaintiffs had not presented “any evidence that the reason for the chair’s collapse was some act of the Defendants as opposed to Ms. Hall’s excessive weight” of over 350 lbs.