In Tang, the plaintiff class consisted of a group of Chinese residents who had been injured in China by melamine-contaminated infant formula.  The formula was manufactured and distributed in China by Sheng Yuan Nutritional Food Company, a Chinese subsidiary of Syuntra International, Inc.  Because Syuntra has its principal place of business in Maryland, the plaintiffs elected to file suit in federal district court in Maryland, alleging various causes of action pertaining to the manufacturing, distributing, and marketing of the formula.  The district court granted Synutra’s motion to dismiss the complaint on the basis of forum non conveniens. The Fourth Circuit agreed, holding that China was an available, adequate forum for the plaintiffs’ claims.

Forum non conveniens (Latin for “forum not agreeing”) is a well-established common law concept.  Accordingly, no archaic language creativity was needed (but certainly the first judge to coin the phrase must have first thought, “that just doesn’t sound right”).  Like the many cases that came before it, this case could lead to but one conclusion.

The plaintiffs’ argued that the American venue was the proper venue to adequately protect their interests.   There was some evidence in the record showing that Chinese courts had thwarted contaminated formula lawsuits.  Voluntary lawyers had been warned that their involvement in the litigation could lead to social unrest.  Affidavits from two Chinese lawyers indicated that Chinese courts unreasonably delayed the litigation even after the Supreme People’s Court announced its readiness to hear the claims.  If true, the plaintiffs would obviously face difficulty in pursuing their claims through the Chinese legal system.

Despite their apparent struggles, allowing Chinese residents who were injured in China by a product manufactured and distributed in China to bring their claims in the United States just doesn’t sound right.  People deserve an avenue for redress, but there must be some legal concept – or Latin phrase – to prevent our courts from having to adopt an open door policy.  The Fourth Circuit held that these plaintiffs had an adequate forum – a fund established by the Chinese government to compensate those affected by the contaminated formula.  While the American court system may provide the potential for greater relief, it seems unreasonable to allow the plaintiffs to forum shop under the facts of this case.

The Fourth Circuit used Tang as a platform to affirm the reach of the forum non conveniens doctrine to non-judicial remedies.  However, we wish the Court could just informally state what the rest of use are thinking – “that just doesn’t sound right.”  Certainly there must be a Latin phrase for that.

For a thorough summary of the Fourth Circuit’s opinion, please read this piece from our friends at the Product Liability Monitor.

In Graham, the court was reviewing the district court’s grant of summary judgment in favor of the defendants. The case arose out of an incident in which the plaintiffs’ home caught on fire. The fire started after the plaintiffs began using candles as a source of light. The reason that they had to use candles was that they failed to pay their electric bill and thus the power to their home was disconnected. On the date that the fire occurred, the plaintiffs had fallen asleep before extinguishing their candles. The plaintiffs sued Progress Energy on a negligence based claim.

The court framed the narrow issue as being “whether a reasonable jury could conclude that Progress’s alleged negligent conduct proximately caused the Grahams’ alleged harm.” The defendants did not dispute causation-in-fact. They admitted that it was foreseeable for the plaintiffs to use candles to illuminate their home. However, Progress Energy contended that the plaintiffs actions (i.e., falling asleep before extinguishing the candles) was an intervening cause that broke the chain of causation. Furthermore, the defendants claimed that while using candles to illuminate their home may have been foreseeable, …”going to sleep with the candles lit or otherwise failing to attend to the candle so as to prevent them from falling was certainly by no means so.”

The court opined that the defendants’ argument “misconstrues the relevant inquiry because South Carolina law does not require that particular events be foreseeable.” The court went on to reason that only the general harm and general intervening cause need to have been foreseeable. The court found that since candle use was foreseeable, a reasonable jury could have concluded that some amount of candle misuse was also foreseeable. Finally, the court pointed to evidence within the record that supported the conclusion that the plaintiffs’ alleged harm was also foreseeable. As such, the court reversed the grant of summary judgment.

The court’s analysis, albeit sound, leaves the ordinary practitioner wondering what is the true meaning of an intervening cause. The answer is found in the procedural posture of this case – this appeal involved the review of a summary judgment order. Perhaps on remand, the once (and future?) fixture of the American judicial system will resolve this issue. Of course, I’m referring to the jury trial. For all of you out there, who like me, have only been practicing law within the last decade, allow me to explain. A jury is the fact finder that resolves factual disputes during a trial. We’ll discuss the term “trial” during our next lesson. As for our weary candle users, one thing we can be sure of– it is foreseeable that the jury will have to determine issues like comparative and contributory negligence before these plaintiffs will be permitted to recover for leaving the light, I mean candle, on.

From July 2002 to April 2007, Plaintiff Mary Cleo Couick took generic metoclopramide pills for treatment of gastroesophasgeal reflux. Reglan, the name-brand version of the drug, was manufactured by Wyeth, Inc. and Schwarz Pharma, Inc. Couick stipulated that she only took the generic version of this drug. However, Couick filed suit against both the name-brand manufacturers and generic manufacturers claiming that they failed to adequately warn her doctors about the risks associated with metoclopradmide, which caused her to develop tardive dyskinesia.

Against name-brand manufacturers, Couick brought claims for negligence, breach of undertaking special duty, misrepresentation by omission, negligent misrepresentation, constructive fraud, fraud by concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, unfair and deceptive trade practices, breach of express warranty, and breach of implied warranties. In response, name-brand manufacturers filed a motion for summary judgment.

The Court first found that since “[e]ach of [Couick's] claims [are] based on the premise that Wyeth and Schwarz are liable for Couick’s physical condition because they failed to adequately warn Couick’s doctors about the dangers of metoclopramide,” Couick’s claims, while masked in various legal theories, were a single claim for products liability.

The Court then held that under clear North Carolina and Fourth Circuit authority, a “name-brand manufacturer’s statements regarding its drug [cannot] serve as the basis for liability for injuries caused by another manufacturer’s drug.” As a result, the Court granted name-brand manufacturers’ motion for summary judgment.

This case is instructive to products liability practitioners in two main respects. First, despite a plaintiff’s artful pleading, claims based upon personal injury or property damage as a result of the manufacture, construction, design, selling, advertising, etc. of the product, is generally considered only one claim under a state’s products liability law. Second, the rule that a name-brand manufacturer is not liable for injuries caused by another manufacturer remains intact. See Foster v. Am. Home Products Corp., 29 F.3d 165 (4th Cir. 1994). Recently, we have reported on a number of cases here against drug manufacturers. This re-affirmed rule will become particularly important as these types of suits increase.

• Since it’s Friday, we thought we’d share the above clip, which is one of our favorite depictions of a legal hearing in popular culture. It comes from the 1981 film, Absence of Malice, starring Sally Field as a naive young newspaper reporter and Paul Newman as the peeved object of her journalistic investigation (as well as that of her affection). Field’s reporter has been led to believe by the governmental authorities that Newman’s character is under investigation for murder. This scene, which comes late in the film, shows Wilford Brimley, who plays a senior Department of Justice official, taking everyone – and we mean everyone – to task for their unsupervised antics and sloppy approach to the administration of justice. (The second half of this clip can be found here).

• Yesterday, in a divided opinion, the Fourth Circuit issued an important decision in the removal context of which defense counsel should be aware. In announcing its new adherence to the last served defendant rule, the Fourth Circuit stated that it would “join the Sixth, Eighth and Eleventh Circuits in adopting the last-served defendant rule and hold that in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.“ Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., — F.3d –, No. 08-1740 (4th Cir. Feb. 4, 2010) (PDF). For some early analysis on this matter, see this post at the North Carolina Appellate Blog.
• This past December, the ABA Journal issued its third annual list of the best legal blogs. (We here at Abnormal Use are keeping our fingers crossed for best new legal blog next time!). Until then, though, at our Twitter page, we have created a public list of links to the Twitter accounts of all those so honored (at least all those with Twitter accounts). If you’re a Twitter user, you can follow that list here and see the original ABA Journal article here.
• Self promotion mode on. Here in South Carolina, lawyers are now nearing the end of their CLE compliance year. Accordingly, one of our blog’s contributors – as well as another lawyer from our firm – will be making presentations to next week’s Greenville County Bar Association End of Year CLE. Senior associate and blog contributor Jim Dedman will be speaking about “Cybersleuthing 101,” a topic about which we can assure you he knows much. Shareholder Stuart Mauney will also be making a presentation entitled “The Lawyer’s Epidemic: Suicide, Depression, and Substance Abuse.” Mauney was recently appointed to chair the South Carolina Bar’s H.E.L.P. Task Force (Health and Education for Legal Professionals). You can learn more about the event, which takes place a week from today, on Friday, February 12, in this month’s Greenville Bar News [PDF].

It was August of 2005 when Mr. Sutton’s brush with history occurred. His problems began when he thought it would be a good idea to eat at a Duffield, Virginia gas station at 1:30 a.m. (If that’s not assumption of risk, what is?). Sutton and three others (or the “entourage” as suggested by the Court) noticed the fabled golden arches (a McDonald’s attached to the truck stop) and thereupon entered the “restaurant/convenience store.” Initially, it appeared that the McDonald’s franchise was closed. Not to be deterred, Mr. Sutton scoured the lot and found the McDonald’s employees assembled outside. Surely because the McRib was not in season, Sutton ordered a fried chicken sandwich. If only the McRib had been available; what a cruel mistress is history for denying him the McRib that fateful evening. However, Mr. Sutton, or perhaps the fates themselves on his behalf, chose a chicken sandwich. It was to be his undoing.

When Sutton bit into his sandwich, he immediately regretted his decision, for untold “grease flew all over [his] mouth.” Grease coated his lips and chin, and blisters formed immediately. Mr. Sutton found the McDonald’s employees (who were once again outside, doing whatever restaurant employees do outside their place of employment in the wee hours of the night). One of them attempted to defuse this tense customer relations moment with the following statement: “This is what happens to the sandwiches when they aren’t drained completely.” Id. Momentarily satisfied, Sutton and his “entourage” left the station, “[a]fter they finished eating.” Id. Within the next two days, Sutton realized that his injuries were more serious than he thought and sought out a doctor. Months later, Sutton saw a second doctor who treated him with lip balm. He then filed suit and demanded $2 million in his complaint. (One suspects that some associate somewhere had the unenviable task of drafting a memorandum as to whether properly draining later chicken sandwiches constituted inadmissible subsequent remedial measures.).

The district court granted summary judgment for McDonald’s and judgment as a matter of law to the franchisee. Really, the main issue of the ensuing appeal was the district court’s exclusion of the employee’s statement. The Fourth Circuit reversed the exclusion finding abuse of discretion, and ruled that the statement was admissible as a statement by a party-opponent under Federal Rule of Evidence 801(d)(2)(D). After all, the declarant was wearing a McDonald’s uniform, with other sufficient indicia of agency to bind the employer. Moreover, the appellate court found that the exclusion of the statement was harmful error because it evinced a standard of care. The panel also rejected the district court’s sua sponte act of finding Sutton contributorily negligent for “biting into the hot sandwich.” I would tend to agree with the district court, looking to the surrounding circumstances of voluntarily eating an early morning meal at a gas station as assumption of a known risk. However, the panel reversed the grant of summary judgment and ordered additional discovery.

On a jurisprudential note, it’s interesting how injuries from hot food or drink have entered the realm of compensable injury. Society has apparently come to accept the Goldilocks theory of liability, where all food must be served at the precisely “right” temperature. The hot coffee cases used to be laughable, but not anymore. The next time you find yourself at a restaurant or convenience store well past the witching hour, consider any claims you may have under negligence and the warranty of merchantability. Rest assured, whatever their merits, you may be entitled to a trial. Above all else, though, ensure that your chicken is properly drained. ]]> http://abnormaluse.com/2010/02/what-does-society-demand-from-chicken.html/feed 2 http://abnormaluse.com/2010/01/friday-links_29.html http://abnormaluse.com/2010/01/friday-links_29.html#comments Fri, 29 Jan 2010 13:30:00 +0000 Jim Dedman http://abnormaluse.com/2010/01/friday-links-3.html