For many, the year 2009 will be remembered as the launching point for several successful careers. President Obama was inaugurated. Chesley Sullenberger became America’s hero. Taylor Swift released 2009′s top selling album leading to her 2010 Grammy. For the Toyota Motor Corporation, however, the year was not so kind.

For Toyota, 2009 marked the beginning of the largest vehicle recall in the company’s history. Initially, Toyota was forced to recall some 3.8 million vehicles upon the discovery that removable floor mats could cause accelerator pedals to stick in the depressed position. Toyota later broadened the recall after determining that the accelerator pedals could stick even without the aid of the mats. In total, over 6 million Toyota vehicles were recalled. As of February 2010, 2,262 incidents of unintended acceleration had been reported. That figure included 815 crashes, 341 injuries, and 19 deaths. Not surprisingly, Toyota became a popular defendant in a plethora of subsequent lawsuits. Reports estimated that these lawsuits could cost Toyota over $3 billion. Certainly, 2009 was a year Toyota would just as soon forget.

Recently, Toyota’s misfortunes took an unexpected turn when the first of these recall-related lawsuits went to trial. In Sitafalwalla v. Toyota Motor Sales, U.SA., Inc., No. 08-CV-3001 (E.D.N.Y. 2011), the plaintiff, Dr. Amir Sitafalwalla, sued Toyota in a New York federal court, claiming that a defect, in either the electronic throttle system or the floor mats of his 2005 Scion, caused his car to suddenly accelerate into a tree. After the plaintiff’s expert testified that the accident was caused by an unsecured driver floor mat, the defense moved to exclude any evidence related to the electronic system. Judge E. Thomas Boyle, the U.S. magistrate presiding, granted Toyota’s motion. With evidence of the electronic system excluded, counsel for Toyota argued that the accident was caused by the driver – not the floor mat. After deliberating for less than one hour, the jury agreed with Toyota.

Jury forewoman, Regina Desio, indicated that after weighing all of the evidence, the jury “came to the conclusion that there was not a defect with the automobile.” Toyota is touting the jury’s conclusion as precedent for the hundreds of other lawsuits yet to be decided. Toyota spokeswoman, Celeste Migliore said:

[The case] clearly demonstrates a plaintiff’s inability to identify, let alone prove the existence of, an alleged electronic defect in Toyota vehicles that could cause unintended acceleration.

While we here at Abnormal Use share Toyota’s enthusiasm with the jury’s decision, it may be premature to accurately forecast the outcome of the outstanding lawsuits. First, jury verdicts lack precedential value. Unfortunately, we have all experienced the enigma of the unpredictable jury. Second, we do not know how much the plaintiff’s own conduct may have influenced the jury’s decision. Certainly, a jury may treat a plaintiff driving at an excessive rate of speed on a neighborhood street differently than a plaintiff gently rolling away from a stop sign prior to the “unintended acceleration.” The plaintiff alleges that his car accelerated as he shifted from drive to park with his foot on the brake. We do not know how credible the jury found these allegations, only that it found Toyota was not liable. Finally, no evidence was actually presented to the jury regarding an alleged electronic defect. Because Judge Boyle disallowed the plaintiff’s evidence on the electronic system, at best, Toyota may cite the jury verdict as evidence that the floor mats were not defective.

Whether this decision is a foreshadowing of things to come or an outlier in a long series of jury verdicts, only time will tell. For the moment, however, we should let Toyota enjoy the good news. Its been awhile.

Thus, the court held that a new trial was not warranted, and the verdict should stand. The court based its ruling on the fact that there was no dispute at trial that an improper use of portland cement could cause burns. This was therefore not an issue at trial. Rather, the “crux of the liability dispute” was whether the packages of cement purchased by the plaintiff contained adequate warnings of that hazard. Accordingly, the information was not sufficient to warrant a new trial. Furthermore, the court held the “sketchy, second- and third-hand information” provided by the plaintiffs did not warrant a post-verdict inquiry into the juror. The court concluded instead that the $125,400 “verdict fits comfortably within the realm of reasonableness.”

As a defense lawyer, I dream about preemption; it can bar a staggeringly wide range of claims. The plaintiffs in Gelber v. Stryker, — F.Supp.2d —-, No. 09-CIV-1322, 2010 WL 4740432 (S.D.N.Y. Sept. 14, 2010), however, do not view preemption so fondly. After Jeannette Gelber’s hip was replaced with a Stryker Trident hip, she began to have pain and noticed a squeaking sound when she walked. She was told the artificial hip was defective, and thereafter, filed suit. The defendants filed a motion to dismiss, and the plaintiff conceded the dismissal of claims based on failure to warn, improper labeling, improper or misleading marketing and/or defective design. Therefore, the only claims remaining in the defendants’ motion to dismiss were those of negligence, strict liability and breach of warranty claims based on alleged violations of the FDA’s manufacturing requirements.

And then, the defendants dropped the atom bomb: federal preemption based on the rigorous review the FDA had used in approving the Trident hip for use and distribution; in fact, as a so-called “Class III” device, the Trident hip had been subject to the “rigorous regime” of premarket approval (“PMA“) within the FDA, a process under which only 1% of devices were scrutinized in 2005:

The PMA process is lengthy-it takes over 1,200 hours to review each application-and involves the submission of volumes of comprehensive information on the device. The FDA only grants premarket approval if it finds there is a reasonable assurance of the device’s safety and effectiveness. After approval, the FDA still retains regulatory control over the device. The manufacturer is prohibited from changing “design specification, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness” without first obtaining FDA’s approval.

There is a way around federal preemption, and the plaintiffs tried it in this case: the plaintiffs claimed that the defendants violated FDA manufacturing requirements, a so-called “parallel” claim. Here’s how a parallel claim would work, in the Court’s opinion

Riegel [v. Medtronic, Inc., 552 U.S. 312, 316, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008)] specifically found that claims of strict liability, negligence and breach of implied warranty were expressly preempted. However, there is an absence of Supreme Court guidance on whether the [Medical Device Amendments of 1976] preempts state requirements of general applicability that only incidentally regulate medical devices, e.g., Uniform Commercial Code or unfair trade practice laws, since Riegel refrained from analyzing the exception provided by 21 U.S .C. § 808.1(d)(1). Riegel, 552 U.S. at 328-29 (” § 808.1(d)(1) can add nothing to our analysis but confusion…. Neither accepting nor rejecting the FDA’s distinction between general requirements that directly regulate and those that regulate only incidentally[,] the regulation fails to alter … the outcome of this case”). Post-Riegel, courts have struggled to determine whether state-law claims that only incidentally regulate medical devices are still available insofar as they are “parallel” to federal requirements. . . . This Court finds it persuasive that since the Supreme Court did not carve out a safe harbor for state laws that only incidentally regulate medical devices, the same preemption analysis applies and only those claims that are parallel to federal requirements are permissible.

(internal citations omitted). This might have been a great argument for the plaintiffs, except that the court held that they did not sufficiently plead claims “grounded in violations of federal law and/or requirements.” The pleadings didn’t provide the requisite amount of factual detail and specificity to survive the defendants’ motion to dismiss and, therefore, the remaining claims of the plaintiffs were dismissed. Pesky pleadings. However, the Court stated that “because courts have only recently articulated how a plaintiff can successfully plead a parallel claim,” the plaintiffs would be allowed to replead.

Bedbugs are quickly becoming a national epidemic. Indiscriminate in their selection of venue, the bugs are popping up everywhere, from luxury hotel suites in Manhattan to hospital beds in Tennessee and college dorm rooms in Pennsylvania and North Carolina. Not surprisingly, a significant number of lawsuits have followed. The most recent of these is a high-profile suit filed by a Michigan couple against New York’s famed Waldorf-Astoria hotel, which illustrates that the alleged damages in these cases can be extraordinary.

In honor of the Tea Party’s victory/destruction of the country as we know it, we here at Abnormal Use take this opportunity to write about tea. Not just any tea, mind you, but extremely, piping hot tea. Tea so hot, that if you removed the lid and poured it on your body, it would burn you just as if it were brewed in the fires of Hephaestus himself. A tea so destructive and ominous that it has earned the street name of “2012.” Notice that if you remove the “0″ from 2012, you find yourself with 212, which is the Fahrenheit temperature at which water boils, so obviously, the imminent collapse of humanity has much to do with boiling hot tea.

Unfortunately, this is 2010, a time in which poor 76-year-old Plaintiff Rachel Moltner simply cannot subsidize her own negligence with the profits of the mega-corporation Starbucks. In yet another hot beverage case, we see a purportedly evil-beverage serving corporation forcing consumers to burn themselves and then legally smiting the innocent consumer via summary judgment, surely while the CEO lights his cigar with $100 bills and guffaws mercilessly.

On Tuesday of this week, the Second Circuit affirmed a grant of summary judgment to Starbucks against Moltner in Moltner v. Starbucks Coffee Co., No. 09-4943-cv, 2010 WL 4291299 (2d Cir. Nov. 2, 2010) [PDF]. After several months of ordering a weekly regular sized hot tea, Ms. Moltner upgraded to the “Venti,” a 20-oz behemoth of a beverage. The tea was double-cupped and sleeved, the purpose of which, was, of course, to protect the consumer from burning her hand on the very hot elixir. Moltner was handed the beverage, lid in place. She then ambled over to a table to pour some sugar into her tea. As she removed the lid, she poured some tea into her shoe, causing her burns necessitating skin grafts, as well as some secondary injuries related to her hospital stay, including bed sores, a fractured sacrum, and some herniated discs. (As an aside, Ms. Moltner’s “coffee name” was Plaintiff Oldy McOlderton.)

Per the district court, however, at Moltner v. Starbucks Coffee Co., No. 08 Civ 9257, 2009 WL 3573190 (S.D.N.Y. Oct. 23, 2009), plaintiff’s counsel tried to spin this double cupping: “Plaintiff alleges that the double cup constitutes a dangerous defect . . . .” While a double cup may be inadvisable or ineffective in other walks of life, here, in fact, it was no defect. Furthermore, expert suppositions about grip positioning or finger size were likewise dismissed. (We’d like to see the CV of the tea cup grip positioning expert.). Plaintiff also tried to make some hay with an apparent directive from Starbucks to its employees that they not double cup because it changes the cup’s center of gravity. Seriously. I have never thought about ensuring that my beverages have a low center of gravity. Unfortunately for her, Ms. Moltner’s quest for not more than $3 million dollars ended in a sweet and frothy summary judgment. Pour some sugar in that.

Lest you think me heartless, I do empathize with Ms. Moltner. I don’t wish injury upon anyone, but spilling a hot beverage on yourself is not grounds for a cause of action. It wasn’t in 1992, and it isn’t 18 years later. It’s just carelessness or bad luck or the whims and caprices of the fates. Please just accept some responsibility and be careful when you double cup.

You can read the rest of the summary judgment order yourself. I will note that valuable resources of the federal judiciary were occupied hearing the motions and writing the 41 page order in this case. Moreover, there was a fair amount of discovery taken in this case, with the plaintiff deposed not once but twice. Perhaps the airline’s attorney could not believe what he heard the first time. There was also some talk of Luna amending her complaint to add sasquatch fur as a second foreign object, and the airline was forced to conduct discovery on the existence of Bigfoot.

I now fear that someday I may be writing on discovery relating to sasquatch. After all, if Luna had alleged that she had sasquatch fur in her food (and had retained the fur), wouldn’t that be a cognizable claim? My hope is that the sasquatch case is filed in South Carolina, and I get to be a part of that discovery.

This past Tuesday, Orin Kerr of The Volokh Conspiracy remarked upon the case of United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), a notable Fourth Amendment case in which future U.S. Supreme Court Justice John Marshall Harlan II – then an Assistant U.S. Attorney – argued before a Second Circuit panel which included the famed Justice Learned Hand, who ultimately authored the opinion in that case. Kerr noted playfully: “Counsel for the defendant, a Mr. Leo Klugherz, is slightly less known.” Perhaps so.

But that prompted our diligent researchers here at Abnormal Use to do a bit of cybersleuthing and investigation into the past of Mr. Klugherz. Who was this unsung participant in this case who once stood in a room with a future U.S. Supreme Court Justice and one of the most famous jurists never to serve on that Court? What’s his story, and what became of him?

All we know from the Kirschenblatt opinion is that he was a criminal defense lawyer who represented those accused of doing those things that were illegal during Prohibition.

Klugherz is certainly not remembered on the Internet. A simple Google search of “Leo Klugherz” reveals very little, and in fact, the most prominent result is Kerr’s post.

So we dug deeper, and we learned a bit more about this “slightly less known” attorney.

Leo Henry Klugherz attended law school at New York University and was admitted to practice law in 1904. According to this 1919 law directory, for at least part of his career, Klugherz practiced out of New York’s Liberty Tower at 55 Liberty Street. A Westlaw search of his name reveals that he was counsel of record in nearly 80 reported opinions from 1918 to 1941 (the first of those being People v. Smorack, 119 N.E. 1065 (N.Y. 1918) (per curiam)). He was described as a “splendid lawyer and delightful companion” in Norman Levy’s 1958 book, My Double Life: Adventures in Law and Letters. He would live another fifteen years after the Kirschenblatt case.

His two paragraph obituary, published in The New York Times on October 19, 1941 (and only available through The New York Times subscription paywall archive), noted:

Leo H. Klugherz, a member of the New York bar for thirty-five years who had specialized in criminal law, died yesterday at his home, 1937 Eighty-first Street, Brooklyn, after a day’s illness of heart disease, at the age of 58.

Mr. Klugherz leaves a widow, the former Stella Schoenfeld, a daughter, Marjorie, two sons, Richard and Daniel, and a sister, Mrs. Blanche Rosen.

His son, Daniel, apparently became a documentary film-maker.

Klugherz seems to have had quite the legal career. The same year Kirschenblatt was released, Klugherz squared off against Harlan in another appeal, that being Horowitz v. United States, 11 F.2d 1009 (2d Cir. 1926) (per curiam). However, the facts of that case may be lost to history, as the Westlaw entry is simply an affirmance without an accompanying opinion.

Of further interest, Klugherz was no stranger to Learned Hand.

Aside from Kirschentblatt and its companion case, United States v. Kirsch, 16 F.2d 204 (2d Cir. 1926), Klugherz appeared before Learned Hand in the following reported cases:

• United States v. Adamowicz, 82 F.2d 288 (2d Cir. 1936)

• United States v. Busch, 64 F.2d 27 (2d Cir. 1933)
• Grossberg v. Mulligan, 48 F.2d 93 (2d Cir. 1931)
• United States v. Auerbach, 47 F.2d 1086 (2d Cir. 1931)
• United States v. Grossberg, 47 F.2d 597 (2d Cir 1931)
• Maqueo v. Hecht, 32 F.2d 1021 (2d Cir. 1929)
• Picker v. United States, 28 F.2d 1017 (2d Cir. 1928)
• Rouda v. United States, 10 F.2d 916 (2d Cir. 1926)

Most were per curiam opinions or affirmances without opinion (and it’s unclear whether he participated in oral argument, if any, in the cases), but the Rouda case resulted in a full opinion authored by Learned Hand who once again addressed Prohibition era facts.

It gets better: Klugherz also appeared before Justice Augustus Hand, Learned’s first cousin, on at least two occasions, those being:

• Guterman v. Moore, 46 F.2d 1022 (2d Cir. 1931) (per curiam)

• United States v. Rosenstein, 34 F.2d 630 (2d Cir. 1929) (Manton, J.)

According to Westlaw, on at least three occasions, the U.S. Supreme Court denied his petitions for cert.

The full transcript of a 1921 assault case defended by Klugherz is available at the Lloyd Sealy Library’s “Trial Transcripts of the County of New York 1883-1927” collection at the John Jay College of Criminal Justice. Alas, that transcript is on microfiche and not online in any form.

Klugherz never lived to see Harlan become an Associate Justice of the U.S. Supreme Court, a position to which he was appointed in 1955. However, in that court room in the 1920s, Klugherz surely knew that Harlan, his opponent, was the grandson of a U.S. Supreme Court justice.

Though he is not remembered today, it certainly seems that he had a long and storied career.

In a case against pharmaceutical giant Merck that ended with a mistrial in September 2009 when jurors became hopelessly deadlocked, the jury for the second go-round recently awarded the plaintiff $8 million, which was reportedly $3 million more than her attorneys had asked for.

The case was one of several bellwether cases being tried in federal court in Manhattan involving Merck’s osteoporosis drug Fosamax. The company is reportedly facing more than 1,000 cases in state and federal courts in which plaintiffs allege the drug is defectively designed in that it can cause a jaw-destroying condition known as osteonecrosis. According to The Wall Street Journal, of the so-called bellwether cases, one was thrown out last year, a jury recently found in favor of Merck in a second, and a fourth is set to be tried in November.

United States District Judge John Kleenan oversees the federal Fosamax cases. He has set a hearing for September in which Merck will present post-trial motions to overturn the recent verdict. In this regard, it appears as though the plaintiff’s $8 million verdict may be in jeopardy.

Paul F. Strain, counsel for Merck, reportedly has said in a post-trial statement that he believes the jury’s verdict was a result of “plaintiff’s counsel’s inflammatory and prejudicial remarks.” And it appears as though Judge Keenan agrees. Although Merck unsuccessfully moved for a mistrial, arguing that plaintiff’s counsel improperly used his closing statement to encourage the jury to punish Merck with its verdict, Judge Keenan, 80, reportedly told lawyers of the closing outside of the jury’s presence: “I have never heard a more outrageous summation in my life than the one I heard yesterday.” Encouraging words for Merck officials, who recently issued a statement indicating the company’s intent to challenge the jury’s verdict.

Not only are these tasty treats two of my favorite indulgences, but they are the subjects of two pending products liability actions.

On May 13, 2010, New York resident Mirko Carrea (“Carrea“) filed a lawsuit in the U.S. District Court for the Northern District of California. Carrea, on behalf of himself and a nationwide class of consumers, alleged that Dreyer’s Grand Ice Cream labels are misleading and could deceive a reasonable consumer into believing that their products are healthier than they truly are. Carrea v. Dreyer’s Ice Cream, No. 3:10-1044, amended complaint filed (N.D. Cal. May 13, 2010). The Federal Drug Administration provided that a product with more than 13 grams of total fat or 4 grams of saturated fat cannot claim to be trans-fat-free. Carrea takes issue with the fact that nothing on the Dreyer’s Drumstick ice cream cone directs a consumer to the nutritional information, even though it contains 19 grams of fat and 10 grams of saturated fat. Carrea also takes issue with the fact that the label uses the work “original” and the ingredients when this product was first made differs from the ingredients used today. Carrea seeks restitution of funds gained through this alleged “false advertising” and an injunction to stop marketing in this manner.

Another interesting suit was filed on May 3, 2010 by Agnes Mercado (“Mercado”), a New York women, who asserted that she ate two to three bags of popcorn a day for about 16 years and, as a result, developed severe lung disease that may require a lung transplant. Mercado v. ConAgra Foods Inc., et al., No. 11069/10, complaint filed (N.Y. Supreme Ct., Queens County May 3, 2010). Mercado filed suit against ConAgra and Givaudan Flavors Corp., manufacturers of the butter flavoring diacetyl added to the popcorn. She alleges that the diacetyl causes “serious debilitating” respiratory illnesses. Mercado’s complaint alleges negligence, defective design, failure to warn and breach of warranty. She is seeking $100 million in compensatory damages and punitive damages.

Two thoughts – ice cream is not “healthy” in any form and 2 to 3 bags of popcorn a day for 16 years, she must be acquaintances with the Plaintiff we wrote about in our A Can of Tuna a Day post. Both of these action will be interesting to follow to see how at least two courts address claims by Plaintiffs seeking damages for what likely are open and obvious risks?