Falling Down

In my daylight-saving-time-induced narcoleptic delirium, I’m glad to invoke my favorite Michael Douglas movie as an introduction to today’s topic: Potentially defective artificial hips. (As an aside, I’m sure that losing one hour of sleep was one of the things that set that film’s protagonist, Foster, over the edge. Few things oppress me more than time.) I’m not sure that Otis Watkins and McKinlee Pruett felt the rage that Foster felt, but the named Plaintiffs in Watkins v. Omni Life Science, Inc., 2010 WL 809820, No. 09-10857 (D. Mass. Mar. 9, 2010) were angry enough to file suit against the manufacturer (successor-in-interest, really) of their artificial hips.

One key point in this case is that the respective hips of Watkins and Pruett had not yet failed, or had experienced any other problems for that matter. Nevertheless, perhaps at the urging of former surgeon general and Life Alert spokesman C. Everett Koop, the plaintiffs filed suit against Omni for multiple causes, including breach of implied warranty, breach of contract, unjust enrichment, et cetera, in conjunction with allegations of fraud. (As another aside, I could have sworn that C. Everett Koop was no longer with us, but I have been informed otherwise.) The Plaintiffs filed as a proposed class, containing people that had experienced no artificial hip failure. The crux of the claim was that the hip’s failure rate was significantly higher than that of other brands of artificial hips. Therefore, the Plaintiffs claimed that they were 1) at increased risk of future harm and 2) that the failure rate “diminished the market value of their hip implants.” I’m no economist, but I’m sure some academic will soon release a white paper discussing the Great Recession’s impact on the slightly-used hip market. Moreover, the Plaintiffs asserted that they “would not have selected the Defective Hip over other alternative devices but for the uniform representations made by Defendant.”

In an amazing legal gambit, Omni’s counsel dared file a motion to dismiss the complaint. Omni argued that the Plaintiffs did not allege (much less suffer) a cognizable injury. The Plaintiffs argued, as noted above, that they did not get the benefit of their bargain. The court looked at the nature of the claims. The Plaintiffs had two problems: First, there had been no physical injury, and, therefore, purely economic damages were not recoverable in tort. Second, the Plaintiffs failed to allege the existence of any contract. Oops. It’s hard to prove breach of contract without a contract. The court also noted that fear of a future injury is not sufficient to support a cause of action.

Thankfully, common sense prevailed in this matter. Causes of action are reserved for plaintiffs who have actually been injured. However, I do feel for the Plaintiffs, as I too feel wronged by those who force me to adhere to Daylight Saving Time, which apparently contributes to “heart attacks, traffic accidents and workplace injuries.” Perhaps I will be lucky enough to suffer an injury giving rise to a viable cause of action.

South Carolina Supreme Court Reverses $18 Million Products Liability Verdict

As we briefly reported yesterday, the South Carolina Supreme Court yesterday reversed an $18 million jury verdict against the Ford Motor Company, finding that the trial court erred in admitting the testimony of two of the plaintiffs’ experts and admitting evidence of prior sudden acceleration accidents. Watson v. Ford Motor Co., No. 26786 (S.C. March 15, 2010). This case is very instructive on the duties of the trial court as a gatekeeper of the admission of evidence and vividly illustrates how plaintiffs may not simply rest on the mere fact that an accident happened in attempting to hold a defendant liable.

The case involves the sudden acceleration of a vehicle, making it a very timely topic. On December 11, 1999, Sonya L. Watson was driving her 1995 Ford Explorer with Patricia Carter and two other passengers in the vehicle when she lost control, veered off the interstate, and rolled four times. Carter did not survive the accident and Watson was rendered a quadriplegic. Watson and Carter filed a products liability action against Ford, claiming that the accident occurred because the cruise control system was defective, and that their injuries were enhanced because the seat belts were defective.

At trial (which was conducted in Greenville County, SC), the Plaintiffs presented (and the trial court allowed) three types of evidence that was the subject of Ford’s appeal. First, the Plaintiffs presented testimony of Dr. Antony Anderson, an electrical engineer from the United Kingdom. He opined that electromagnetic interference (“EMI“) took hold of the vehicle’s cruise control system, causing it to suddenly accelerate. Dr. Anderson further testified that Ford could have prevented the accident through an alternative design. Second, the Plaintiffs presented the testimony of Bill Williams, a purported automotive industry veteran, as an expert on cruise control diagnosis. Finally, the Plaintiffs offered evidence of similar accidents involving sudden acceleration in Ford Explorers.

The jury determined that Ford was liable to Plaintiffs on their claim that the Explorer’s cruise control was defective and awarded Watson $15 million in compensatory damages and the Estate of Carter $3 million in compensatory damages. Thereafter, Ford appealed, asserting the trial court erred in “. . . qualifying Bill Williams as an expert in cruise control systems[,] allowing Dr. Anderson’s testimony regarding EMI and alternative feasible design[, and] allowing evidence of other incidents of sudden acceleration in Explorers.”

Yesterday, on those grounds, the Supreme Court granted Ford’s appeal. In an opinion authored by Chief Justice Jean Toal, the South Carolina Supreme Court agreed with Ford and found that the trial court committed prejudicial error in allowing evidence at trial that did not meet the threshold admissibility requirements in South Carolina. It should be noted that South Carolina has not adopted the Daubert test and instead follows its own test set forth in State v. Council, 335 S.C. 1, 20, 515 S.E.2d 515, 518 (1999) and its progeny. Under that test, South Carolina courts have generally been fairly liberal in qualifying experts to testify at trial, and motions to exclude brought under State v. Council are not often granted.

The Court set forth the three preliminary findings that all trial courts must make in South Carolina before a jury may consider expert testimony: (1) the subject matter is beyond the ordinary knowledge of the jury, (2) the expert has the requisite knowledge and skill to qualify as an expert in the particular subject matter, and (3) the substance of the testimony is reliable.

The Court first found that there was “no evidence to support the trial court’s qualification of [Bill] Williams as a expert in cruise control systems” because Williams had no professional experience working on cruise control systems prior to litigation, had not conducted any comparison of the Explorer’s cruise control system to any other system, and had not taught or published papers on cruise control systems.

Next, the Court found that the “trial court erred in admitting Dr. Anderson’s testimony as to both an alternative feasible design and his EMI theory.” In so doing, the Court stated that Dr. Anderson was not qualified to testify on that subject matter because “[h]e had no experience in the automobile industry, never studied a cruise control system, and never designed any component of a cruise control system.” Further, the Court found his testimony unreliable because he provided no support for his conclusion that an alternative design would have cured the alleged defect. With respect to Dr. Anderson’s EMI theory, the Court rejected his testimony because his theory had not been peer reviewed, his theory had not been tested, Dr. Anderson stated he could not replicate the alleged EMI or tell where it originated or what parts it affected.

Finally, the Court found that the Plaintiffs had failed to show that the incidents of sudden acceleration presented were similar to the incident at issue: the Explorers were made in different years and were different models. Further, the Court found that the Plaintiffs failed to “show a similarity of causation between the malfunction in this case and the malfunction in the other incidents.”

Since the only evidence that the Plaintiffs presented to prove that the Explorer was defective was Dr. Anderson’s testimony, the Court ruled that the trial court committed prejudicial error by admitting his testimony. Further, the Court found it highly prejudicial that the Plaintiffs were allowed to present evidence of other incidents when they had not established a factual foundation to show substantial similarity. As a result, the Court reversed the jury’s verdict against Ford.

Justice Costa M. Pleicones concurred in the result only, agreeing with many of the points made by the majority but suggesting that he would have reached the same result by a different route.

(See here for some additional coverage on this matter from the Overlawyered blog and here for a brief report from Point of Law.)
(Disclosure: Gallivan, White & Boyd, P.A. was involved in the trial of this case. It represented the seat-belt supplier, a defendant that was found not liable by the jury. That said, we should also state that prior results do not constitute representations concerning potential results in other matters, the results of any case depends on the factual and legal circumstances of each, and nothing herein is intended to create any expectations of a result on the part of the reader.)

Breaking News: South Carolina Supreme Court Reverses $18 Million Dollar Verdict Against Ford

This morning, the South Carolina Supreme Court reversed an $18 million verdict against the Ford Motor Company arising from an automobile accident which killed one passenger and paralyzed the driver. At issue in this products liability case was the cruise control system of a Ford Explorer. The case is Watson v. Ford Motor Co., No. 26786 (S.C. March 15, 2010). In sum, the Supreme Court reversed and accepted Ford’s arguments that the trial court erred in qualifying two of the Plaintiff’s experts (one a cruise control expert, the other an alternative design expert) and by admitting evidence of prior sudden acceleration accidents. We’ll have more on this opinion in the coming days, but for now, you can see the opinion here and some early media coverage here. Authored by Chief Justice Jean Toal, the majority opinion drew one concurring opinion from Justice Costa M. Pleicones (who concurred in the result only).

Medical Expert’s Testimony Deemed Incompetent, Not Sufficiently Fact-Based

We here at Abnormal Use are here to help. Over at the Drug and Device Law blog, author David Walk directs his readers’ attention to a new Eighth Circuit case about which he could not fully comment due to his firm’s involvement in that case. In light of that, and in the spirit of blogging collegiality, we thought we would do our own summary and analysis of the new opinion.

The facts are these: Plaintiff feels fine; Plaintiff takes prescription medication to reduce his cholesterol; Plaintiff develops symptoms of pain and fatigue. Such facts do not proof of causation make, the Eighth Circuit Court of Appeals affirmed. In re Baycol Products Litigation, —F.3d—, No. 08-3524, 2010 WL 711972 (8th Cir. March 3, 2010) [PDF]. In that case, the appellate court upheld summary judgment in favor of the drug-manufacturer defendant. In so doing, it held that the mere fact that a plaintiff developed physical symptoms in the months following his consumption of a defendant’s drug is insufficient to support a medical expert’s opinion that the drug was responsible for the onset of those symptoms.

The plaintiff was prescribed Baycol in February 2001 after being diagnosed with high cholesterol. On March 15 of that year, he began complaining to his doctor of general body pain and fatigue and of localized lower body pain. His complaints continued throughout July of 2001. In August, after taking the drug for approximately five months, the plaintiff discontinued his use of the drug after reading in the newspaper that Bayer had withdrawn Baycol from the market. He thereafter sent a letter to his doctor, in which he opined that Baycol was the cause of his symptoms. A subsequent blood test did reveal that the plaintiff had increased levels of creatine kinase, which is one indication of the presence of myopathy.

The plaintiff filed suit, alleging theories of strict liability, negligence, breach of express and implied warranties, and unjust enrichment. The court noted that it was the plaintiff’s burden, pursuant to his strict liability and negligence claims, to prove causation through the use of a medical expert. He essentially offered two. The first of those was in the form of “various generic causation experts” who would testify that Baycol was capable of causing myopathy. The report of the second expert garnered the most attention from the court. In it, the expert opined in what the court regarded as “conclusory remarks,” that causation was established because: (1) the pain was of new onset; (2) he had no other explanation for the injury; (3) the pain was “reasonably contemporaneous” with the plaintiff’s ingestion of Baycol; and (4) the pain didn’t get worse after he stopped taking the drug.

The court held that such conclusory remarks of “temporal association,” without sufficient evidentiary support, were wholly insufficient to prove that the defendant’s conduct contributed to the plaintiff’s injury. The court upheld entry of summary judgment in favor of Bayer on the basis of the plaintiff’s failure to present competent expert testimony on the issue of causation.

The court’s analysis with regard to these expert witness issues may provide ammunition for defendants during preliminary stages of litigation. It certainly highlights the importance of attacking the sufficiency of expert reports and of demanding competent, factually based testimony that creates triable issues of fact.

Friday Links

Certainly, in our time, we have seen some trial witnesses fare worse than Shep the Wonder Dog, the canine eyewitness depicted above on the cover of the comic book, Mr. District Attorney #53, published way back in 1956. (Click to enlarge the cover and see it in all its glory!). Shep’s tale must be damaging to the defendant, as the bailiff seems posed to pounce upon the accused, who appears to be rising in response to Shep’s expected testimony. You’d think they would at least wait to see how Shep fared on cross before beginning to worry. Is there an optional completeness objection based upon the fact that Shep’s board does not include all 26 letters, thereby limiting his testimony? Rumor has it that Shep was prepared to give an impermissible lay opinion: Evolution provided the defendant with opposable thumbs but not sufficient wits to outsmart a dog. (For a full summary of this issue, see here.).

The Virginian Pilot in Norfolk, Virginia offers this interesting account of how that state’s courts have dealt with one vexatious litigant (who happens to share the name of the main character on a popular NBC sitcom). Says one jurist: “Within the memory of the incumbent judges of this court, the court has so designated only four people over the past fifteen years [as vexatious litigants]. The petitioner is the most persistent and vexatious of the four.”

Just think. This is what they were saying about law school 72 years ago: “American legal education is blind, inept, factory-ridden, wasteful, defective, and empty . . . [I]t blinds, it stumbles, it conveyor belts, it wastes, it mutilates, and it empties.” Karl Llewellyn, On What Is Wrong With So-Called Legal Education, 35 Colum. L. Rev. 651, 653 (1938). Wow.

The South Carolina Bar has joined Facebook.

Only in a nineteenth century marital property case involving the enhancement value of mules would you find a gem like this: “[T]he erratic mule standeth apart, like patience on a monument, smiling at grief.” Stringfellow v. Sorrells, 18 S.W. 689, 689 (Tex. 1891) (quotations omitted). Back then, we suppose everyone knew without being told that the author of the opinion was referencing Shakespeare’s Twelfth Night.

Speaking of Texas, its state bar is sponsoring a contest of interest. Several writers here at Abnormal Use plan to someday write the great American novel, but we fear that such an enterprise might detract from our billable hours. Perhaps the State Bar of Texas has a solution, though, as it has announced what is surely the first 140 Character Novel Writing contest. Inspired by the popularity of Twitter, the competition is open to all lawyers licensed in any state in the United States. (That’s a lot of lawyers.). Check it out:

Ernest Hemingway reportedly considered his best work to be his most succinct — a six-word novel he came up with to settle a bar bet: “For sale: baby shoes, never worn.”

Our contest challenges lawyers to write a short form novel, Twitter-style, in 140 characters or less. All U.S.-licensed attorneys are encouraged to enter.

One grand prize winner will receive an Apple iPad. The grand prize winner and runners-up will receive special recognition at the State Bar of Texas Annual Meeting on June 10, 2010, at a breakfast presentation featuring LexBlog, Inc. CEO and Twitter expert Kevin O’Keefe (@kevinokeefe).

For details, see here. The contest is open until May 1.

Paxil and The Learned Intermediary Defense

The learned intermediary defense appears to be alive and well in the State of Georgia. For years it seems that drug companies have been able to rely on the venerable learned intermediary defense to avoid liability in personal injury cases brought by plaintiffs that have obtained their products through a physician prescription. The defense has recently come under scrutiny in light of the marketing attempts by drug companies that intended to inform the public about their products. The trial lawyers’ bar seems to be asserting that the advertisements by the drug companies are attempts to provide warnings to the public.

Last week the U.S. Court of Appeals for the Eleventh Circuit considered the defense. In Dietz v. Smithkline Beecham Corp., No. 09-10167, 2010 WL 744273 (11th Cir. March 5, 2010), the court upheld the trial court’s grant of summary judgment in favor of the defendant. In Dietz, the plaintiff brought a wrongful death claim in which the surviving spouse claimed that her husband’s suicide was proximately caused by his use of Paxil. Id.at *1. The plaintiff actually brought the claim under three theories: strict liability, negligence and breach of warranty. Id. The defendant raised the learned intermediary defense, an affirmative defense under Georgia law. Id.

The facts in Dietz were that the plaintiff’s husband had visited his family physician with “anxiety, depression, insomnia, and stress, but expressed that he had no suicidal ideation.” Id. His physician prescribed him to take Paxil as well as a sleep aid, Ambien. Id. Eight days after obtaining his prescription and after he began to take the drug, he committed suicide. Id.

The decedent’s family physician testified during a deposition that the decision to treat the decedent with Paxil was an appropriate decision and that even after reviewing the results of an updated prescription information sheet, there was nothing that about the new information that would have made him decide to not prescribe Paxil to the decedent. Id. *2. The Dietz court reviewed the long-standing doctrine of the learned intermediary defense:

[T]he manufacturer of a prescription drug … does not have a duty
to warn the patient of the dangers involved with the product, but instead has a
duty to warn the patient’s doctor, who acts as a learned intermediary between the
patient and the manufacturer. The rationale for the doctrine is that the
treating physician is in a better position to warn the patient than the
manufacturer, in that the decision to employ prescription medication …
involves professional assessment of medical risks in light of the physician’s
knowledge of a patient’s particular need and susceptibilities.

Id. at *1 (internal citations omitted). The court then went on to hold that the plaintiff could not establish that the defendant’s alleged failure to warn the physician about the increased risk of suicide associated with Paxil proximately caused the decedent’s death. Id. at *3. The court’s decision hinged upon the doctor’s testimony that even after reviewing the new prescription drug information sheet and the warnings mandated by the U.S. Food and Drug Administration, he still would have prescribed the drug. As such, the learned intermediary (decedent’s physician) had an adequate warning and the potential chain of causation proffered by plaintiff was severed.

Economy Affects Mafia?

In the 2000-2001 recession, there was a consolidation in the cement mixer industry, which I solely and subjectively theorize was due to a reduction in the amount of cement produced for nefarious uses. One wonders how the current “downturn” affects such businesses. Snitches may need to select alternative footwear.
Plaintiffs like David Ryan will likely have no cement mixer manufacturer to sue. Ryan v. Smith, 2010 WL 743946, No. 06-5866 (D.N.J. Mar. 4, 2010) centers around asset sales and their effects on successor liability. Ryan worked as a driver on a cement truck. He suffered injury on December 2, 2003 when the ladder on his 1988 Rex 770 cement mixer detached from the truck while occupied by Ryan. The Rex 770 was manufactured by Rexworks, Inc., and, prior to Ryan’s injury, the assets of Rexworks underwent two different sales. First, Rexworks sold its name and cement mixer designs, along with other assets to TEMCO pursuant to agreement. The Agreement provided that no liabilities outside those named in the agreement were assumed by TEMCO, and TEMCO took possession of the assets in June 2000. TEMCO asserted that it was mainly interested in a transmission manufactured by Rexworks, which had an excellent reputation in the industry, for incorporation in its own products. After a few months, TEMCO sold the assets of its cement mixer business to Oshkosh Truck Corporation, and, again, all liabilities of TEMCO were excluded from the asset purchase. On March 6, 2001, the date of the Oshkosh purchase, “the Rex product line was no longer being manufactured by anyone.” Id.

Ryan wanted someone to be liable for his ladder-based injury, and, obviously, TEMCO and Oshkosh didn’t agree to assume any liabilities. The District of New Jersey applied New Jersey’s substantive law:

The social policies underlying strict product liability are best served by extending strict liability to a successor corporation that acquires the business assets and continues to manufacture essentially the same line of products as its predecessor . . . .

Ramirez v. Amsted Indus., Inc., 431 A.2d 811, 825 (N.J. 1981). Even though TEMCO and Oshkosh continued to manufacture dump trucks, the Rex line of dump trucks was essentially discontinued. Ryan argued that the evidence showed that TEMCO had incorporated the use of the Rex transmission in its products, which was sufficient to show the continued manufacture of the product line. Had Ryan been injured by the transmission, this argument may have won the day, but Ryan was injured by the ladder, for which there was no evidence of continued manufacture.

Ryan was then forced to argue based on fairness and policy considerations. Ryan had no remedy absent successor liability. The trial court was not persuaded and stated that the product line test was dispositive. Summary judgment for the defendants was granted. Ryan is an interesting case in transactions of asset sales. Look for potential defendants to incorporate purchased products piecemeal, trying to toe the line in taking advantage of the purchased assets while extinguishing successor liability. Plaintiffs would do better to frame these types of issues in terms of being injured by a complicated piece of machinery as a whole, rather than injury occurring due to one particular part of the machinery. Ryan may have been more (or less) fortunate had he been injured by a more integral part of the mixer.

Varying Jury Verdicts in Latest Pfizer Litigation

A Philadelphia jury on February 22 ordered Pfizer’s Wyeth unit to pay $6 million in punitive damages and $3.45 million in compensatory damages to an Alabama woman who claimed she developed breast cancer as a result of taking the company’s hormone-replacement drug Prempro. Just two days later on February 24, in a case involving very similar facts, another Philadelphia jury found that Pfizer was not a cause of an Indiana woman’s breast cancer and Pfizer was not held liable for damages.

Prempro is a combination of Pfizer hormone medications Premarin and Provera and was used by more than six million women to treat symptoms of menopause before a 2002 Women’s Health Initiative study highlighted the drugs’ links to cancer. Prempro is still on the market, now with increased warnings reflecting results of the 2002 study. However, more than 8,000 lawsuits have been filed against Pfizer by former users of the drug since publication of the 2002 study.

As these two February cases demonstrate, results of the lawsuits have varied. Before this most recent victory for Pfizer on February 24, Business Week reports that Pfizer had lost seven out of the 10 Prempro cases to have gone before juries — the $9.45 million verdict in favor of the Alabama plaintiff had been Pfizer’s fifth loss in a row. However, the Philadelphia Inquirer also reports that two of the jury verdicts in favor of plaintiffs were reversed posttrial, and several other jury verdicts are being challenged by Pfizer on appeal. In addition, it reports that as of February 23, 2010, Pfizer had won five summary judgment motions in its Prempro litigation and 15 of its cases set for trial have been voluntarily dismissed by plaintiffs.

Because the outcomes of these suits and the juries’ interpretation of the facts appear to vary so greatly, it likely will only fuel plaintiffs’ and Pfizer’s fervor in arguing their cases at trial. Indeed, James A. Morris, an Austin, Texas lawyer who represented the family of the Indiana Prempro plaintiff who recently lost her battle against Pfizer, is quoted by the Philadelphia Inquirer as saying, “Nothing about today’s verdict changes the landscape of this litigation. We will continue to fight on in other cases.” Lawyers for Pfizer, on the other hand, have maintained that the company acted responsibly in conducting and supporting more than 180 studies on the benefits and risks of use of the drug. Pfizer has said it will appeal the Philadelphia jury’s recent $9.45 million verdict.

Peppermint Pattie: with or without insect larvae? Which would you choose?

Hopefully your answer to that question was without; however, for one consumer in Tennessee, she was a little too late to make that choice. Recently, the United States District Court of Tennessee was asked to decide whether the manufacturer, distributor, and retailer of a peppermint pattie was liable to a consumer who bit into candy which was infested with insect larvae. Gentry v. The Hershey Co., No. 2:08-0123, 2010 WL 457538 (M.D. Tenn. Feb. 3, 2010).

While Kim Gentry was shopping at Petco Animal Supplies, Inc., she picked up a York Peppermint Pattie that was for sale and bit into it. I know what you are all thinking: Yes, it is another issue that candy is sold at Petco and that people eat it in the store. After Ms. Gentry discovered that there was larvae inside the candy, she was treated for food poisoning. Since the event, she had undergone psychological counseling. Gentry filed a lawsuit against the manufacturer, The Hershey Company; the distributor, Liberty Distribution, L.L.C.; and the retailer, Petco, for strict liability, breach of implied and express warranties, negligence, and negligence se.

All three defendants filed motions for summary judgment. The Court considered Hershey’s and Liberty’s motions together, finding in favor of Hershey and Liberty on all causes of action. The Court found no evidence that the candy was in a defective condition or unreasonably dangerous when in the possession of Hershey or Liberty, relying on the opinions of all the experts in the case, which found that the pattie was contaminated while in the possession and control of Petco. Petco did not submit an expert to the contrary. Further, the Court stated that Liberty could rely upon the closed container doctrine because it received the pattie in a sealed corrugated cardboard box, stored it in a temperature-controlled environment, and had no ability to inspect the patties.

On Petco’s motion for summary judgment, the Court agreed with Petco on Gentry’s negligence per se claim as Gentry did not point to any statutory provision other than those under the Federal Food, Drug, and Cosmetic Act and Tennessee Food, Drug, and Cosmetic Act, which have been held to have no private action attached. The Court also found that Petco was not liable for strict liability because the applicable statute in Tennessee only permits a strict liability action against a seller when the seller is also the manufacturer or when the manufacturer cannot be located or is insolvent.

On the other hand, the Court found that it would allow Gentry’s breach of implied warranty claim to go to the jury reasoning that even though Gentry bit into the candy before she purchased it and even though Petco was primarily a merchant of animal food, nevertheless there was a “sale” and Petco was a “merchant.” Accordingly, Gentry’s claim fell within the applicable warranty statute. Finally, the Court found that there was an issue of fact with respect to Petco’s use of the sealed container doctrine as a defense to Gentry’s negligence claim. The Court found that there was a question whether Petco had a reasonable opportunity to inspect the candy before it was consumed by Gentry as the doctrine is not intended to protect a “seller from all liability to the consumer when the seller causes or allows the product to become adulterated.”

This case again shows the importance of expert testimony, as the use of expert testimony was instrumental in absolving Hershey and Liberty from strict product liability. As a result of this decision, Ms. Gentry will be able to present her case on implied warranty and negligence to a jury.

Friday Links

  • Northwestern University, at its YouTube account, has begun to post some interesting products liability related videos, including the clip above, which features Katherine R. Latimer of Hollingsworth, LLP discussing “Products Liability Law and Pharmaceuticals”at the Judicial Symposium on The Pharmaceutical Industry, held at Northwestern in May of 2009. Other clips from the conference can be found here, here, here, and here, while the school has also posted an interesting clip of Justice Ruth Bader Ginsberg’s September 2009 visit to the institution.
  • Findlaw’s Courtside blog posts this piece about the recent filing of a sudden acceleration lawsuit against Toyota and a Lexus dealer in California. The report includes a copy of the complaint as well as an excerpt of the 911 call at issue.
  • In this nice post, The Mac Lawyer alerts us to Tablet Legal, a new blog designed for lawyers using Apple’s new iPad. Last week, the new site’s author concluded that “less functionality in the Ipad is better for lawyers.” The associates writing the posts here at Abnormal Use have requested iPads from their supervising partners, but as of yet, they have received no response. Surely they must have missed that set of emails?
  • In a post that ran yesterday, The South Carolina Family Law Blog offers this helpful tip for locating individuals using social media. Says that site’s author: “[I]t is simply amazing sometimes to see the types of information people publish about themselves and their actions on these sites. However, in today’s web-laden society, it’s hard to know where to start looking sometimes to find all of a party’s networks.” Indeed.
  • We here at Abnormal Use have no meaningful preference in this weekend’s Academy Awards show. To be honest, we rarely get to the movies these days. But we, like most, are perplexed at the Academy’s decision to nominate ten films for Best Picture as opposed to the usual five. We recoiled in horror and grieved when Quentin Tarantino’s Pulp Fiction lost to Forrest Gump in March of 1995, but we remain unconvinced that Tarantino’s latest effort is worthy of such accolades. Surely Avatar will not prevail over the far, far better Up. Perhaps the Academy members wish to avoid the type of self congratulatory display James Cameron put forth in 1998 when he won for Titanic. Tune in Sunday to see.
  • Finally, if you’ll peruse our side bar, you’ll notice a new blogroll dedicated to South Carolina law blogs. Although our central mission at Abnormal Use is to discuss products liability cases, we do like to keep an eye on our local legal blogsophere. Take a look, and let us know if we’ve missed any South Carolina legal blogs of interest.