Celebrate Memorial Day

We here at Abnormal Use are observing Memorial Day today in honor and remembrance of all the men and women who have died serving the American military. Do you know the history of Memorial Day? Briefly, Memorial Day, originally called Decoration Day, was officially proclaimed on May 5, 1868 by General John Logan, national commander of the Grand Army of the Republic, as a time to honor those that gave their lives in the Civil War. After World War I, Americans honored those that died in all America’s wars on this day. In 1971, Congress declared Memorial Day an official federal holiday.

Many Americans celebrate this day by visiting memorials or attending family gatherings, including picnics, pool parties, and parades. If you are in fact heading to a pool party, take a look at the U.S. Consumer Product Safety Commission’s press release regarding its Pool and Safely campaign that was launched last week. This is campaign is a “first-of-its-kind national public education effort to reduce child drownings and non-fatal submersions, and entrapments in swimming pools and spas.” It will be interesting to see what directives come out of this campaign.

Whatever the case, the summer is now underway! Enjoy your day off.

Friday Links

We think that there may be some junk science in the courtroom in the comic book cover depicted above, but unfortunately, Detective Comics #281 was published 33 years before Daubert. We’re not sure why Batman’s death is being litigated or why Robin is in the courtroom, but we would have advised some simple discovery requests on the Batman-as-robot issue, perhaps a request for admission along the lines of “Please admit whether you are a robot.” At least then a denial would have entitled the opponent to fees and costs.

South Carolina attorney J. Benjamin Stevens at The Mac Lawyer has this post, entitled “Top 10 Resources for Mac Junkies.” On a related note, the partners at our firm have still not supplied we few, we happy few, we band of bloggers with our own iPads.

Begins this New York Times article: “The singer and former Talking Heads frontman David Byrne has sued Gov. Charlie Crist of Florida, saying he used the Talking Heads’ song “Road to Nowhere” in a Senate campaign ad without permission.” We have nothing else to add to the news of this litigation, although it does provide us yet another opportunity to link to the fabled and extraordinary Fifth Circuit Talking Heads opinion.

James Parton has a post entitled “Obtaining Records from Facebook, LinkedIn, Google and Other Social Networking Websites and Internet Service Providers” at the DRI For the Defense blog. It’s worth a read, especially considering how challenging it is to actually obtain information from those types of entities in civil litigation.

Although it’s a bit out of our subject matter, we here at Abnormal Use are closely following the case of Justin Kurtz v. T&J Towing. Read more about it here. Based on the accounts of that dispute, how can you not be on Team Kurtz?

Jeffrey V. Mehalic at the West Virginia Business Litigation blog has this in-depth post on the recent Fourth Circuit opinion, In re: Abrams & Abrams, P.A., about which we blogged very briefly in last week’s edition of Friday Links.

As seen in the ABA Journal, a “new study finds that less attractive defendants fare worse in criminal cases when the jurors have an ‘experiential’ style of judging.” The author of the article, Debra Cassens Weiss, finds a nice way to say that “experiential” means not listening to the evidence and judging on legally irrelevant information. We would like to go on record that not all persons sporting a unibrow and English-style overbite are criminals. We would also like to see a study on how attractive lawyers fare versus less physically appealing advocates. Would you find for the ugly defendant represented by an objectively attractive counsel?

We are disappointed to learn that W. Lawrence Wescott of the Electronic Discovery Blog decided this week to end his blog. We enjoyed reading it.

The new South Carolina Business Law Blog celebrates its first two months of existence next week. Congratulations to them on that milestone, which is no small feat in the legal blogging world.

Another Plaintiffs’ Friendly Post?

To my dismay, I was recently described as having written a post from a “plaintiff’s perspective.” The comment shook me to the core, as I have been sleepless, listless, and suffering from a psychological malaise deeper than our national debt. I remember reciting proudly with my incoming class at new lawyer orientation, “The plaintiff’s case is never meritorious.” My entire existence has been devoted to ensuring that no stone goes unturned in the search for the truth, which inevitably leads to the defense verdict. To say I am deeply offended at any intimation that I lean to the other side is an understatement of seismic proportions. After all, what is the point of the billable hour, if not to justify my very existence.

See the indecency here, where Polson Enterprises, The Boating Information Company, complimented a previous post concerning a jury’s awarding $3.8 million to a teenager who was struck by a boat propeller when his friend backed over him in the water. I didn’t actually intend to suggest that boat propellers be redesigned to look something like an oscillating fan, which was essentially what Plaintiff’s counsel argued in that case, so perhaps I need to take a more definitive stand when I believe the Plaintiff’s argument is off base. And so while I pledge to do so in future posts, this is not one such topic. A plaintiff I actually could potentially support is one who takes on Miley Cyrus. Not so much because the tween “role model” allegedly gives lap dances in bars or always seems to be involved in some photo scandal, as those issues are outside the scope of this blog. This time, Miley is in the news for a recall of her jewelry line, which was sold exclusively at Wal-Mart stores, after test results showed the jewelry contained high levels of the toxic metal cadmium.

Although Wal-Mart initially continued to sell the jewelry, reportedly telling the Consumer Product Safety Commission that testing items already on store shelves would be too difficult, it eventually changed its approach, issuing a statement that it had pulled “the few products that did not” comply with its new testing regimen. Studies reportedly have shown that girls of the age of most Cyrus fans, ages 6 to 11, are at higher risk for absorbing more cadmium than other children or adults. In any event, the affected items have, at this point, been pulled from the shelves. Only time will tell if this causes future damage to the Miley Cyrus brand.

Stick a Fork in It

I’ve never driven a forklift, and I’ve also never been fortunate enough to have been injured at work. It would be nice to collect from the worker’s compensation carrier and then have the luxury of filing suit against some third-party. Tashee Parker was employed by Home Depot at one of its distribution centers. Mr. Parker was hurt when the forklift he was driving collided with a pallet jack, injuring his foot. The Supreme Court in Orange County, New York, in Parker v. Raymond Corp., No. 2005/7189, 2010 WL 1999529 (N.Y. Sup. Ct. May 17, 2010), recently terminated Mr. Parker’s case against the forklift manufacturer via summary judgment.

Parker alleged that the forklift had a design defect. What he didn’t know at the outset was that the forklift was “first developed by Raymond in the 1940s.” Also, the design and manufacture of the forklift are “subject to certain design and safety standards . . . which . . . have been incorporated into Federal regulations. . . . The subject forklift meets or exceeds all such requirements and standards.” If you are a plaintiff, it is not a good sign when the court points out that the equipment that you claim has a design defect has been around for more than 60 years and exceeds the necessary regulations. The forklift probably doesn’t have a design defect. Most likely. Someone probably would have found it before you, Mr. Johnny-come-lately plaintiff.

It comes as no surprise to most of us that plaintiffs regularly make fantastical arguments. Usually, these fantastical arguments succeed in defeating summary judgment, allowing the plaintiff to settle his lawsuit for more than it is worth. The New York Supreme Court did not buy what the plaintiff was selling. Plaintiff argued that the forklift should have been made with a “foot guard” to “facilitate the operator’s ability to safely remain within the confines of the compartment,” even though Plaintiff admitted at deposition that he was trained to remain in the operator’s compartment, and, had he done so, he would not have been injured. Moreover, the Plaintiff had his expert introduce a sham affidavit to defeat summary judgment, even though at the expert’s deposition “he was unable to recall any basis to conclude that the design of Defendant Raymond’s forklift violated any ANSI standard.” Summary judgment granted.

While no new groundbreaking law was announced in Parker, it’s always fun to read an opinion that rebuts ridiculosity at every point. More than likely, it would have been cheaper to pay Parker than to conduct discovery, get an expert, depose the other expert, and move for summary judgment. But Raymond decided to pay more and give Parker what he deserved. Raymond Corporation, we here at Abnormal Use salute you.

A Wrinkle in the Love Affair with Botox?

Usually, a $15 million dollar verdict tends to raise my eyebrows. Therefore, in light of the recent decision in Dr. Sharla Helton v. Allergan Inc., CJ-2009-2171, District Court, Oklahoma County, Oklahoma, it is a good thing that I still have the ability to do that. However, the Plaintiff in that case, Dr. Sharla Helton of Oklahoma City, did not have that ability, thanks to her wrinkle-smoothing Botox injections. Rendered on May 11, this sizable jury verdict came following a three-week trial against Allergan Inc., a Botox manufacturer, after the Plaintiff, who was 47 years old, claimed that she suffered years of pain and weakness after receiving Botox injections.

The jury found Allergan Inc. negligent because the label on the product did not include enough information about potential side effects. The Plaintiff blamed Botox for causing double vision, breathing difficulties and years of constant pain in her hands, arms and feet. She further claimed that the disabling side effects eventually led her to sell her medical practice and step down as the medical director for an Oklahoma City hospital. According to the Plaintiff, the verdict was the “first set in making sure the public is aware of the actual risks of Botox. It’s a stepping stone to protect the public from what the company is hiding.”

So, what is the company hiding you might ask about the dangers of Botox? Nevermind that the official scientific name for Botox – Botulinum Toxin Type A – actually contains the word “toxin.” It is a neurotoxic protein. Also nevermind that Botulinum toxin has been identified by the CDC (Centers for Disease Control & Prevention) as the most lethal substance known to man. Potential use of the toxin as a biological weapon has been explored since the early 1900s! Fortunately for us, the toxin just doesn’t have the stability and capacity to be disseminated by open air over a large area. And Botox is, of course, a variation of the word “Botulism,” which I would venture to guess would be more recognizable to the general public at large.

With that said, how could it possibly be foreseeable to the Plaintiff that there could be some risk to injecting Botox into the body? Don’t get me wrong. I am certainly not against Botox therapies, whether for cosmetic use or particularly for its more valuable use to the benefit of patients with muscle and nerve disorders. Maybe my lack of sympathy stems from the fact that the Plaintiff in this instance was actually a doctor (albeit not a cosmetic specialist, but an obstetrician and gynecologist) and presumably would have greater insight into the medical procedure that she selected or, at a minimum, the wherewithal and resources to avail herself of the risks. Or, maybe it was also because it was not the first, second, third or fourth injection over two years that caused the problem. It was the fifth injection that Plaintiff claims did the trick and gave her botulism.

It is interesting that this verdict in a cosmetic use case follows a successful defense win by Allergan Inc. in a case arising from the death of a 7 year-old girl, who suffered from cerebral palsey and used the injections to relax clenched limbs. This is but one example that the sympathy factor does not always win the day. In any event, we have not heard the last of litigation against Botox. At the time that the Plaintiff’s case went to trial, there were 14 plaintiffs standing in line behind her. Allergan has, of course, vowed to appeal. Whatever the ultimate outcome of this or other cases, for the meantime, I will stick to the Pearl Cream.

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.

Friday Links

  • We are quite saddened to report that the very final episode of TV’s “Lost” airs this coming Sunday. We here at Abnormal Use (particularly myself and contributor Mary Giorgi) are big fans of the show. In fact, we simply must mention that we once met the actor who plays Locke immediately after, of all things, a firm function. The picture above was taken by yours truly, just over a year ago, on May 12, 2009, right here in Greenville, South Carolina, at the Lazy Goat restaurant. Terry O’Quinn, who plays John Locke on “Lost,” was at the same restaurant, which was also playing host to a firm recruiting event. The picture, of course, features O’Quinn and Giorgi (who insists that I tell you that she is only wearing a name tag because it was a firm function). O’Quinn said at the time that he was in town to play golf. Here’s the best part: We met him the day before the Season 5 finale, “The Incident,” aired. How about that? Goodbye “Lost.” We will miss you.
  • This week, our own Fourth Circuit released In re: Abrams & Abrams, P.A., No. 09-1283 (4th Cir. May 18, 2010), a very interesting opinion in which an individual was severely injured after his drunk friend ran over him in an automobile. Here’s what happened next: the insurance carrier for the friend’s employer denied coverage and refused to defend the friend. Thus, the friend had to defend himself in the ensuing lawsuit pro se, and eventually, he had a $75 million judgment entered against him when he failed to appear for trial. Ultimately, the insurance company was sued for bad faith. The insurance company later settled that matter for $18 million, but the district court would not approve the one-third contingency fee for the lawyers, awarding instead only 3 percent. The Fourth Circuit reversed, finding that the fee award was too low. Yikes. (You can find the official Findlaw.com case brief here.).
  • We have often posted legal themed comic book covers on Fridays (although we’re not doing so today just so you’ll have something to look forward to). But get this: Last week, the Wall Street Journal Law Blog reported that DC Comics, which has long been in a dispute with the heirs of the creators of Superman, has now sued the attorney of those heirs, suggesting that he provoked his clients into, er, taking actions with which DC Comics apparently disagreed. Not sure how this one is going to pan out, but DC Comics is playing hardball. Actually, suing the attorney seems like something Lex Luthor might do.

When to Make a Rash Decision

Because of his concern for “access to justice,” our illustrious governor vetoed House bill 3161, which would have increased certain court fees to help fund the judiciary. This commitment is admirable, because we must ensure that parents have the right to seek redress for their children’s diaper rash. As reported earlier by Law360, parents seeking justice for their children have filed a class action suit in the Southern District of Ohio because Procter & Gamble has manufactured diapers that allegedly cause “rashes, blisters, welts, bleeding, oozing, chemical burns, infections, sores, scarring and/or other ailments on babies’ and children’s extremely sensitive and delicate bottoms and other body parts . . . .” The Complaint is captioned as Clark v. The Procter & Gamble Co., 1:10-CV-00301, and may be accessed via PACER. The dangerous instrumentality is a newly designed Pampers Dry Max diaper.

Although the complained of diaper rash is probably more serious than other famous rashes, there are a couple of things (at least) that are concerning to me about this litigation. First, it centers on diaper rash. Is this really what the founding fathers had in mind when they signed the Declaration of Independence, preserving the right to sue over diaper rash? As noted by the National Library of Medicine, “[m]ost babies who wear diapers will have some type of diaper rash.” (To its credit, the NLM also notes that diaper rash is “rash in the diaper area,” lest one think that the diaper itself can experience rash.)

As noted by the NLM, diaper rash is caused by prolonged contact of the baby’s excretions with the skin. Lawyers will have to engage in discovery about diaper changing habits.

Q: How often did you change Junior’s diaper?
A: As often as he needed it.
Q: Did you ever leave a wet diaper on your child?
A: Never. I stand at the ready when my child urinates.

Moreover, the plaintiffs will develop some pediatric toxicologist who will say that it is more probable than not that Pampers causes diaper rash. I’m not sure what the failure to mitigate argument looks like, since carpet cleaning can be fairly expensive.

A more legitimate concern is P&G’s management of this issue in social media. Facebook has several pages devoted to this issue (see, e.g., here and here), and there is a lengthy discussion thread on Pampers’ Facebook page about the rash. In fact, the Complaint references a Facebook page requesting that P&G do away with the diapers. Through Facebook, a purported class has developed on its own, without any legwork by plaintiffs’ attorneys. Also, P&G will have to figure out how to be responsive via social media without damaging its litigation strategy. Perhaps P&G can offer some free samples as a show of confidence in its product. Whatever is decided, P&G has some problems ahead, because few things are worse than an angry parent.

Biggest Verdict in Nevada History – Perhaps a Case of Misplaced Anger?

A Nevada jury on May 7 handed down what is reportedly the largest punitive damages award in the state’s history and, as the Plaintiff’s lawyer announced at a subsequent press conference, the “largest verdict in Nevada history, period.” The jury awarded $500 million in punitive damages to the Plaintiff, 62, who reportedly contracted hepatitis C because nurse anesthetists assisting with the Plaintiff’s colonoscopy reused between various patients vials of anesthetic, which had become contaminated by syringes that nurses had reused among patients with hepatitis C. Who got hit with the $500 million dollar verdict? The maker of the anesthetic!

Darren McKinney, spokesman for the American Tort Reform Association, reportedly called the verdict “insane.” He said that “to suggest that drugmakers can be held liable for the unhygienic use of a drug is obscene. They went after drug companies because they knew they had the deep pockets.”

The Plaintiff’s theories of liability against the makers of the drug reportedly were: (1) that the drug packaging did not include appropriate warnings against reusing vials between patients; and (2) that 50-milliliter vials of the anesthetic should not have been sold to endoscopy centers because “they tempted nurses to reuse the vials instead of throwing away leftover sedative.” Of note, nurse anesthetists, like those who could not withstand the temptations presented by drug manufacturers here, are trained specialists in the administration of anesthesia and for whom the median annual salary in 2009 was $157,724.00. The doctor and nurses who performed the Plaintiff’s colonoscopy, however, reportedly settled their malpractice claims prior to trial.

Whatever the theory of liability relied upon, it certainly appears as though something inflamed the jury. One possible explanation may be the actions of one of the defendant’s representatives during the trial itself. Reportedly, the jurors were “miffed nobody from the Israel-based [company] attended the trial, and they universally ridiculed” the United States-based company executive who testified about the drug and its uses. The jury forewoman reportedly said of the witness: “Mr. Lea did not impress us. What he said, what he didn’t say, all that stammering. The defendants need to get more aggressive if they want to win some of these cases.”

Both defendants, including the Israel-based Teva Pharmeceutical Industries, have said they will appeal the verdict.

Our First Milestone: 100 Posts

We here at Abnormal Use have officially hit our first milestone and are, as of today, 100 posts old. To commemorate the first of what we hope will be many such anniversaries to come, we pause to reflect on where we started, and what we have learned along the way.

It has been just four short months since we unveiled this products liability blog with a formal mission statement. Whereas we feel certain that blogging may come naturally to some, our first foray into the blogosphere was not without some trepidation. Naturally, we asked ourselves: Will there be sufficient source material? But we quickly learned that this was the least of our concerns. Fortunately for products liability bloggers, in the rapid, ever-changing world of litigation, there is rarely a day that passes without something newsworthy, whether it be a new court decision, an interesting verdict, a product recall (an augury of imminent litigation), or a story on a future Plaintiff’s new and “inventive” use of a product that, predictably, went awry. Needless to say, we have found plenty of cases and news items about which to post. We are also proud to have presented several original interviews with law professors in our series which we affectionately call Abnormal Interviews (more of which are to come in the future).

Branding ourselves the authors of an “unreasonably dangerous products liability blog,” we’ve also attempted to inject a bit of humor into our posts, at least every once in a while. We have, of course, enjoyed sharing our light-hearted Friday Links. We also hope that you will remember what, for us, became one of our most infamous posts. On February 3, just a few weeks into this enterprise, we posted what we fondly refer to as the the chicken sandwich post, a reflection on the Fourth Circuit’s opinion in Sutton v. Roth, L.L.C., a case that evolved out of yet another instance of a hot item becoming a dangerous instrumentality. Then, of course, we could not resist an April Fool’s Day post. In keeping with our food-related theme, we decided to reflect on whether a Snickers really satisfies (“Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds“). Whereas most of us here would agree that a Snickers bar does indeed satisfy (roasted peanuts, nougat, caramel and chocolate!), gone are the days when we as attorneys would actually be surprised to see a lawsuit that would seek to challenge what has been and still is a highly successful marketing campaign for Mars, Inc. (Just check out Betty White’s appearance in Snicker’s Superbowl commercial!). Apparently, the post did actually fool a few readers, as we received a missive or two asking if the post was, in fact, reality.

We cannot observe this anniversary without pausing to thank others in the blogosphere who have both supported and inspired us. Special thanks go to James M. Beck of the Drug and Device Law Blog and Walter Olson (of both Overlawyered and Point of Law) for their support.

This is not to say that the blog is always fun and easy. This site has now become a daily part of our professional existence – yet another generator of deadlines. Sometimes, it is a joy. Other times, though, it is simply one more item to check off of an already lengthy to-do list. Mark Herrmann (former author of the Drug and Device Law blog) warns of the perils of lawyer blogging in his recent article “Memoirs of A Blogger“). We’ve taken some of these concerns to heart, but we’ve also attempted to fashion a blogging infrastructure here that avoids some of the issue Herrmann presents. (Certainly, dividing the work amongst seven attorneys makes the task a bit less daunting.). But, in any event, we have been gratified and encouraged by the feedback that we have received and the knowledge that we have acquired throughout this project.

Despite this anniversary, we are only getting started. Thanks to all of you for visiting the site, and we look forward to bringing you much more products liability commentary in the future.