Abnormal Use and the North Carolina Law Blog

As you know, we here at Abnormal Use love blogging, so much so that our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Earlier today, his first submission was published at that site.  The topic: To Text, Or Not To Text – The Lawyers Dilemma. Jim’s post is a response to an earlier blog entry by Carolyn Elefant at the Small Firm Innovation blog.

With so many people texting one another, lawyers should pause to reflect upon whether it is an appropriate manner to communicate with clients. To whet your appetite, here’s an excerpt of Jim’s post:

[T]he medium of texting – its immediacy, its brevity, and its simplicity – suggests that it may be an inappropriate medium for any communication that is remotely substantive.  Texts, by their nature, are ephemeral.  They are not filed, they are not saved, they are generally not kept in any meaningful fashion.  However, communications with one’s clients – particularly communications which offer or purport to offer any type of legal advice – should probably be kept in one’s file.  Thus, lawyers who text may face the hassle of having to download, maintain, or otherwise track their texts and preserve them for their files.  This seems like an unnecessary task, particularly when users of smart phones can simply use an email rather than a text from the same device and avoid any issues on that front.

The North Carolina Law Blog is sponsored by the North Carolina Bar Association Center for Practice Management.  A relatively new member of the legal blogosphere, it officially began in May of this year.  A group blog, it currently has 13 writers.  Jim plans to submit one post per month to the North Carolina Law Blog, and we’ll certainly direct you to any content of his at that site upon its publication.

Upon Review, Tasering Not So Funny

Fans of The Hangover undoubtedly remember the scene in which the actors are tasered by a group of children at the instruction of two police officers.  We here at Abnormal Use must admit that we found it at amusing.  Who wouldn’t find it funny watching 5000 volts of pulsed current flowing through Bradley Cooper and Zach Galifianakis?  However, after the recent $10 million jury verdict against it, TASER International might not consider this scene a laughing matter.

Very recently, in Turner v. Taser International, Inc., Case No. 3:10-CV-00125 (W.D.N.C.), a federal jury in the Western District of North Carolina ordered TASER to pay the estate of a 17-year old North Carolina resident $10 million.  According to reports, in 2008, the boy went into cardiac arrest and died inside a grocery store after being shocked in the chest for 37 seconds by a Charlotte-Mecklenberg police officer.   The boy was tased at the store by police following a verbal dispute with his boss.  The City of Charlotte settled with the boy’s estate for $625,000 in 2009 without admitting any wrongdoing.  TASER has moved for judgment in its favor notwithstanding the verdict.

Counsel for the plaintiffs issued a press release regarding the verdict, which said the jury found TASER negligently failed to warn users that discharging the taser into the chest of a person near his heart poses a substantial risk of cardiac arrest.  The press release further indicates that the medical examiner “found no drugs” in the decedent’s system, though Heraldonline.com reports that TASER has said a drug screen was not performed either at the autopsy or at any time before the lab destroyed the teenager’s blood evidence.  In any event, presiding District Judge Conrad reportedly did not allow the defense to offer evidence that three bags of marijuana were found in the decedent plaintiff’s sock during the incident and did not instruct the jury on contributory negligence in spite of defense counsel’s argument that the plaintiff’s behavior was negligent and “necessitated the use of force by police.”  Other outlets report that the teenager had committed offenses including theft, assault of other employees, resisting arrest, and assault on law enforcement.

TASER, the leading manufacturer of conducted energy devices (CEDs), is no stranger to litigation.  It has won judgment or been dismissed from more than 125 product liability cases.  The Turner verdict is only the company’s second adverse jury verdict (the first being a $7 million verdict in 2008 which was later reduced to $200,000).  With the limited information about the case in the media, we can only speculate what distinguished this case from the previous 128.  In TASER’s opinion, “compassion may have overwhelmed the scientific evidence presented in this case.”  TASER may be right, but certainly compassion was not the only factor at play.

It stands to reason that being shocked with large amounts of electricity may not be synonymous with a trip to the spa.  According to TASER’s website, however, the 5000 volts of electricity exerted by its product have a lower risk of danger than a 110 volt wall outlet.  TASER bases this conclusion on a taser’s pulsated current versus the continuous current found in a wall outlet.  Even at a pulsated rate, 37 seconds still seems like a long time to be subjected to 5000 volts of electricity – especially in the chest area.

A study recently released by the United States Department of Justice indicated that “there is currently no medical evidence that CEDs pose a significant health risk for induced cardiac dysrhythmia when deployed reasonably.” (emphasis added)  Interestingly enough, the study fails to define “reasonably.”  Regardless of how it is interpreted, the risk of injury is present. The question is what is TASER’s duty to warn?

We do not know what warnings TASER provided police officers prior to this incident.  (According to the DOJ study, TASER now recommends changing the target zone to below the chest).  Should officers have known the dangers regardless of any inadequate warning from the manufacturer?  Certainly, the officers from The Hangover didn’t get the memo.

Want more on this story?  Try this interesting piece from the South Carolina Criminal Defense Blog.

North Carolina Takes the Rare Hamburger Off the Menu

On The Discovery Channel’s Man vs. Wild, Bear Grylls travels to some of the globe’s most remote areas to demonstrate how a stranded traveler might survive.  Notable among Grylls’ survival techniques is his penchant to catch and eat snakes – raw.  Raw snake does not sound appetizing to our sophisticated palates, but allow me to commend Grylls for demonstrating the benefits of consuming meat in its most natural form.  While these animalistic methods might be useful on Man vs. Wild, North Carolina isn’t buying it.

Last week, our friends at Overlawyered alerted us to a law in North Carolina which makes serving rare or medium-rare hamburgers illegal.  According to this report from America Online, the North Carolina Division of Environmental Health requires that restaurants cook ground beef to an internal temperature of 155 degrees Fahrenheit.  The restriction, which does not apply to steaks, has been implemented to reduce the likelihood of Salmonella and Escherichia coli O157:H7.

While we admit that the sight of a bleeding piece of meat may actually be less appetizing than a live snake, we must question the necessity of the North Carolina regulation.  There is no fault in trying to protect the health and safety of your citizens, and there is no disputing the contamination concerns of ground beef.  However, it seems a little un-American to dictate how a hamburger is to served .  We need to check with Justice Scalia, but certainly the Framers of our Constitution intended free hamburger choice to be an inalienable right.

North Carolina has considered adopting the United States Food and Drug Administration standard which allows restaurants to serve rare and medium-rare hamburgers so long as a disclaimer is printed on the menus.  While we support giving individuals the choice of meat preparedness, by doing this, it appears that North Carolina is more concerned about restaurant liability than citizen health.  Apparently, the potential for food poisoning can be overlooked as long as you are aware that you are assuming the risk.

We here at Abnormal Use do not believe that Bear Grylls would recommend eating raw food on a regular basis when properly prepared options are available.  In the case of the hamburger, however, we do feel that Americans should have a choice.  If raw meat is good enough for Grylls, certainly a rare hamburger is good enough for North Carolinians.

Manufacturer of Text Message System in Truck Has No Duty to Third Party

While litigation drives change and can be an important medium of social commentary, many times it is no more than a less than well thought out attempt to get at a deep pocket. In Durkee v. C.H. Robinson Worldwide, Inc., No. 1:09cv449, 2011 WL 309693 (W.D.N.C. Jan. 28, 2011), there is such an attempt. While the facts are unfortunate, the limits of liability are not. A car with four passengers is struck by a tractor trailer, and the passengers are seriously injured. In the tractor trailer is a text message system that allows a driver to send and receive text messages while the vehicle is in operation. The passengers brought a products liability action against the manufacturer of the text messaging system, alleging that the design and manufacture was defective because an incoming text message could distract a driver.

The manufacturer won on a no duty argument. Note that there was no factual allegation that the driver received a text before the accident, or was in any other way distracted by that system, just that it’s possible that a driver might possibly be distracted. The court correctly found that the plaintiffs were not users of the product, and the magistrate judge noted that if anticipating misuse that could cause foreseeable harm to others was the test, then “no vehicle would be capable of traveling above the speed limit, car ignitions would be equipped with ignition interlock devices, and guns would not be sold to persons with poor judgment.”

Not only that, but anything that could distract, including cell phones, would be subject to a products liability claim. The focus is not on the dangerousness of the product, or the conduct of a distributor, but on the carelessness of the user, and there is already a tort for that. To the extent that this lawsuit is a cry to ban texting while driving or to further restrict drivers, then that’s fine. But the law can’t support finding liability against manufacturers from third parties injured by a user’s careless use of a product. If a brick mason carelessly tosses a brick that strikes a passerby, I don’t think anyone could argue that a viable products action lies with the injured party against the brick manufacturer. Would anyone want a brick that would disintegrate harmlessly if tossed through the air? You can think of endless examples. (Why would anyone design a truck that could jackknife?)

Serious injuries are serious. Injuries are unfortunate, and money is the best substitute that we have come up with for compensating injury. But that money can’t come from anyone, and manufacturers can’t be held responsible by third parties for the carelessness of users, when the product is being used as it should be used.

Gallivan, White, & Boyd, P.A. Opens Charlotte, North Carolina Office

Big news today from GWB headquarters. We are opening an office in Charlotte, North Carolina. Here’s the text of our preliminary press release on the matter:

GALLIVAN, WHITE & BOYD, P.A. OPENS CHARLOTTE, NC OFFICE

Greenville, S.C. – Gallivan, White and Boyd, P.A., headquartered in Greenville, S.C., is pleased to announce that it is opening an office in Charlotte, N.C. The firm was founded more than six decades ago in Greenville, S.C. and is one of the Southeast’s leading litigation and business law firms. C. William McGee, the firm’s Managing Shareholder, stated, “We have seen a significant increase in the demand for our services in North Carolina. Our new Charlotte office will allow the firm to serve our clients more effectively and efficiently throughout the region. We look forward to providing our clients with a full array of business and litigation services throughout the state.”

With 44 attorneys and 56 support staff, Gallivan, White & Boyd was ranked by Chambers USA in 2010 as a leading law firm for business. The firm was also ranked by U.S. News and Best Lawyers as a Best Law Firm. Its new office, located in SouthPark at 5960 Fairview Road, opened in March, 2011.
More details to come shortly.

First-Ever Wrongful Death Settlement Involving Chewing Tobacco Reached

The Associated Press is reporting that Altria Group, Inc., the maker of smokeless tobacco products Skoal and Copenhagen, reached an agreement with a plaintiff in December that is believed to be the first-ever wrongful death settlement involving chewing tobacco. Estate of Bobby Hill v. U.S. Smokeless Tobacco Co., FST-CV-05-4003788 (Connecticut Superior Court). The Big Tobacco manufacturer paid $5 million the family of the North Carolina man, who died of mouth cancer at age 42.

Attorney Antonio Ponvert III, who reportedly represented the decedent’s family, had some powerful ammunition in the form of “incredibly damning documents” to use in his battle against the tobacco maker. According to him, his case was bolstered by some previously undisclosed letters from the 1980s that the company sent to minors, thanking them for their business and sending them free samples. In once instance, he said, the company even sent a child a can opener to aid him in opening the chewing tobacco containers.

While this sort of information and the thought of a multi-million dollar pre-suit settlement may convince many plaintiffs’ attorneys to sign up some clients, an Altria spokesman has reportedly issued a statement to assuage such desires. According to the spokesman, “[the company has] no intention of settling cases such as this in the future.” In fact, there were several circumstances at issue here that made this particular claim unique.

First, Altria acquired the named defendant, U.S. Smokeless Tobacco Co., last year, and reportedly was perhaps honoring an agreement that that company had made with the plaintiff prior to the acquisition. Second, it also is possible that Altria simply wanted to resolve all legal issues remaining from its acquisition. Third, the plaintiff was not a drinker or user of cigarettes, which are risk factors tobacco companies often point out to as possibly having caused the cancer. Finally, the plaintiff was a relatively young, married father of two who died in a particularly painful and gruesome manner. The plaintiff had undergone multiple surgeries to remove his tongue.

This is certainly an interesting first-of-its-kind. It remains to be seen whether this is truly a unique event, or simply the first of a new strategy for Big Tobacco product liability matters.

North Carolina Court of Appeals on Product Modification/Alteration

Picture this: you represent a major automotive manufacturer in a products liability claim. On the eve of trial, your motion for summary judgment is granted, booting two of the plaintiffs from the case. Time to break out the bubbly, right? To borrow the phrase from my favorite football pundit, “Not so fast, my friend!” This is especially true if you are in North Carolina and you have an affirmative defense of modification under North Carolina General Statute 99B-3.

Last week, the North Carolina Court of Appeals analyzed the language of this statute which outlines the affirmative defense of modification or alteration of a product in Stark v. Ford Motor Co., No. COA09-286, 2010 WL 1959851 (N.C. Ct. App. May 18, 2010) [PDF]. In Stark, the case was originally filed in the name of all of the members of a family. The parents’ claims, along with the claims of one of the children, were dismissed pursuant to the defendant’s motion for summary judgment. Stark at *2. The only plaintiffs remaining in the case at the start of the trial were Cheyenne Stark (age 5 at the time of the accident) and her brother Cody Stark (age 9 at the time of the accident). Id. The minor plaintiffs were injured when their parents’ vehicle allegedly and unexpectedly accelerated while the mother was operating the vehicle in a parking lot. Id. The remaining plaintiffs’ theory was that their injuries were enhanced by an alleged design defect with the seat belts of the vehicle. Id.

The defendant asserted the affirmative defense of “Alteration or Modification of Product” available under N.C. Gen. Stat 99B-3. Specifically, the defendant argued that Cheyenne Stark had the shoulder belt behind her back at the time of the accident and thus the alleged design defect of “film spool” could not have been the cause of her injuries. Id. at *2. At the end of the trial, the jury returned a verdict finding the defendant “act[ed] unreasonably in designing the 1998 Ford Taurus and its component parts, proximately causing enhanced injury to Cheyenne Stark.” Id. at *3. However, the jury also found that Cheyenne’s enhanced injuries were caused by an alteration or modification of the vehicle. Id. Finally, the jury found that the defendant’s product did not cause the enhanced injury of the other minor plaintiff, Cody Stark. Id.

On appeal, the plaintiffs presented two arguments. First, since Cheyenne Stark was only 5 years old at the time of the accident, she was legally incapable of negligence and therefore unable to foresee that any modification or alteration could proximately cause her injury. Id. at *5. Second, the plaintiffs rebutted the defendant’s argument that Cheyenne’s parents modified the seat belt by putting the shoulder belt behind her back by relying on the statutory language that the modifier must be a party to the action. Id. at *6.

As to the plaintiff’s first argument, the court reasoned that the alteration or modification of a product must be the proximate cause of the injury in order for the defense to apply. As such, the court then engaged in a “foreseeability” analysis and pointed to longstanding North Carolina case law which held that children under the age of 7, as a matter of law, are incapable of negligence. Id. at *5. Thus, the court reasoned that under the appropriate standard of care for a child under the age of 7, the “…[d]efendant is unable, as a matter of law, to prove the requisite element of foreseeability inherent in the proximate cause portion of its N.C.G.S. 99B-3 defense.” Id. Since the defendant would be unable to establish proximate cause, the defense was unavailable as to any alleged modification or alteration performed by Cheyenne Stark herself.

With regard to the plaintiffs’ second argument, the court essentially applied the rules of statutory construction and held that “the plain language of N.C.G.S. 99B-3 states that he entity responsible for the modification or alteration of the product must be a party to the action in order for the defense to apply.” Id. at *7. The court recognized that the requirement that the modifier or alterer be a party to the case was an issue not previously determined by the courts in North Carolina. Therefore, the affirmative defense available under N.C. Gen. Stat. 99B-3 is only available if the one that modifies or alters the product is a party to the action. Which begs the question: was it really party time when the parents were kicked out the case shortly before the trial began? To be fair, hindsight is 20-20.

Name-Brand Drug Formulator Not Liable For Generic Formulation

Chief District Judge Robert J. Conrad, Jr. of the Western District of North Carolina recently held that the manufacturer of a name-brand formulation of a drug is not liable for injuries that a plaintiff alleged suffered as a result of taking the generic version of the drug. Couick v. Wyeth, Inc., No. 3:09-cv-210, 2010 WL 785952 (W.D.N.C. Mar. 8, 2010). The Court granted the name-brand defendants’ motion for summary judgment.

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.