Friday Links

  • Eric Goldman of the Technology and Marketing Blog has this post, entitled “Private Facebook Group’s Conversations Aren’t Defamatory.” In so doing, he profiles the recent case of Finkel v. Dauber, 2010 WL 2872874 (N.Y. Sup. Ct. July 22, 2010), in which the court was called upon to review a private group started by a group of puerile high school students and dedicated to making fun of a classmate, who brought suit for defamation. Goldman notes that “the group’s discussion is embarrassingly puerile and hearkens back to John Hughes’ bleak depictions of high school life.” Ah, high school.
  • The Tex Parte Blog has this post about the perils of attorneys attempting to follow up with an appellate court about the release of an overdue opinion. Apparently, counsel for the Plaintiff contacted with the Texas Supreme Court to inquire about a matter which had been pending before the court for four years. Eight days after the request was made, the Texas Supreme Court issued its opinion and ruled against the Plaintiff.
  • The title of this post at the Legal Profession Blog, “After Failed Witchcraft, Client in Love With Attorney Sought Hit Man to Murder His Wife,” says it all. A must read. Who knew workers compensation litigation could be so dangerous?
  • The North Carolina Business Litigation Report has this post entitled “A Tale of Reluctant Reconsideration in the Business Court.” In that post , author John Buford tells of a recent case in which the North Carolina Business Court “reconsidered and reversed the prior dismissal of a breach of fiduciary duty claim, but the principles it outlined should not give litigants high hopes for reconsideration motions in general.”
  • And, no, we here at Abnormal Use have still not yet seen Inception. Well, contributor Kevin Couch has, but he is under strict orders not to reveal any spoilers.

Good job, Jury

There is an inherent conflict in the defense attorney. Generally, we understand that our role can be to dispose of litigation as cheaply as possible, whether or not the underlying claim has merit. However, when a case does go to trial, and the defense wins, there is a palpable sense of justice in the room. Many times it is the uncertainty of the jury trial that prods settlement. It behooves us all to remember what a fine device the jury is.

This is not to belittle Eleanor Madden, the septagenarian plaintiff who suffered injury when she fell off a stepstool similar to the one above. Madden v. Cosco, 2010 WL 2867899 (N.J. Super. Ct. App. Div. July 19, 2010) (per curiam) is an appeal from a defense verdict. Ms. Madden was doing what all grandmotherly figures do around the holidays, making holiday gift packages that include some homemade jelly. Ms. Madden used the Cosco chair stepstool in an effort to reach the homemade jelly, which stayed on a shelf in her kitchen. She fell, and you can figure out the rest.

Ms. Madden’s attorney should have figured out that things were not going his way during voir dire:

During juror voir dire, one prospective juror stated that he thought “there are [too] many frivolous lawsuits.” The next juror interviewed stated that he agreed that “there is [sic] too many frivolous lawsuits and people sue-tend to sue a lot of times for just something-they did something stupid and now they want to make the corporation pay for it.”

The court declined to dismiss the potential jurors for cause, since they affirmed that they could be fair and impartial. Madden’s counsel struck them with a peremptory challenge. The trial took its course. Defense verdict for Cosco. On appeal, Madden’s counsel argued that the comments quoted above tainted the entire venire. Appeal denied. There was no evidence that the jurors decided the case in an unfair manner. Not to mention the fact that the evidence supported the jury verdict. Good job, jury.

Recent $2.375 Million Award in South Carolina Crashworthiness Case

A Florence, South Carolina jury recently awarded $2.375 million in actual damages to a girl, now 11, who suffered burns to 15% to 20% of her body when the fuel tank of her family’s Nissan Xterra caught fire following a collision. The highest pre-trial settlement offer reportedly was $450,000. Courtney v. Nissan Motor Co., Ltd., Civil Action No. 2007-CP-21-1449, in the Florence County, South Carolina Court of Common Pleas.

According to South Carolina Lawyers Weekly (see coverage here), the girl, 9 years old at the time of injury, was riding with her family as a passenger in the vehicle outside of their church near Lake City, South Carolina, when they were involved in a collision with a pickup truck. Church members and emergency personnel were able to help remove the family from the vehicle reportedly within seconds of impact, but the child suffered the burns, including facial burns, from her position in the seat just above the fuel tank.

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

In any event, the jury ultimately sided with the plaintiff, finding the case warranted actual damages without the imposition of a punitive award.

Watch Out, Michael Douglas

Looks like we can all keep our respective iPhones/Blackberries/Droids safely attached to our ears. Our spouses and bosses will be thrilled.

The U.S. Food and Drug Administration recently issued a consumer update [PDF] stating that cell phone use does not increase the risk of developing certain types of brain tumors. Apparently, cell phones emit a type of electromagnetic radiation that four different types of brain tumors just love to absorb (as if one was not enough). However, in the largest study of its kind to date, Interphone, in connection with the World Health Organization, released the findings of a study [PDF] which indicate that using a cell phone did not increase a person’s likelihood of developing such a tumor. The study involved 13 countries and took place over 10 years. Pretty impressive. A National Cancer Institute study also cited by the FDA found no increased frequency of brain tumors between 1987 and 2005, despite increased cell phone usage between those two dates.

This is good news for those of us who use our phones so much that it would be best if we could simply duct tape them to our heads. All the same, we here at Abnormal Use found a few of the points in the FDA’s consumer update to be slightly discouraging. First, what the FDA giveth, the FDA taketh away:

“There are still questions on the effect of long-term exposure to radio frequency energy that are not fully answered by Interphone.”

]Great. So, FDA, you’re saying…you’re still not sure. Second, the FDA suggests that one reason cell phones don’t contribute to brain cancer today is because newer, smaller phones emit fewer emissions. We’re pretty sure Gordon Gekko might be in trouble:
Finally, the consumer update includes tips on how to decrease exposure to radiation while using your phone, including using hands-free devices and limiting the time on the phone.

So, FDA, you’re saying…you’re still not sure. Well, thanks for the update anyway.

Another Victory for the Defense when Suit was Filed Against "Alternative" Defendants

We here at Abnormal Use recently became aware of another successful motion for summary judgement for the defense in a products liability case where the Plaintiffs pled defendants “in the alternative.” See our prior post Filing Suit Against “Alternative” Product Manufacturers is Not Enough on Summary Judgment. This decision was from the state court in Crawford County, Kansas and involved three separate actions involving the same facts. Cabrello v. All Star Fireworks, Inc., et al., No. 2007-CV-164; Robinson v. All Star Fireworks, Inc., No. 2007-CV-165; and Roberts v. All Star Fireworks, Inc., et. al., No. 2007-CV-159.

On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.

Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.

This opinion noted that 11 states had adopted the Restatement’s alternative liability theory. As in this case, even if a state has adopted the theory of alternative liability, plaintiff still might not survive a motion for summary judgment if he cannot identify what product caused the harm.

Friday Links

  • We here at Abnormal Use love it when a discussion on the music blogs migrates over to the law blogs. Depicted above is the cover of Contra, the second album by the indie rock group Vampire Weekend. When the album was released earlier this year, the band refused to identify its cover model, but they did note that the photograph was taken way back in 1983. Last week, though, the model in question field suit against the band and the purported photographer, claiming that she never signed a release and that the photographer purporting to have taken the photograph 27 years ago did not, in fact, do so. News of the lawsuit started on the music blogs, but earlier this week, the Wall Street Journal Law Blog took notice, summarizing the dispute as follows:

    So, an indie rock band chooses a 26-year-old photo of a unsuspecting mom from Connecticut for its new album cover, in which she looks like a schoolgirl about to be attacked by a vampire.

    So what?, XL Recordings, the label for Vampire Weekend, has said in response to a $2 million lawsuit by former fashion model Ann Kirsten Kennis, whose sultry 1983 photo graces the cover of the band’s newest album, Contra.

    The record label told that it has a legitimate licensing agreement for the picture and that it would see Kennis in court if she pushed her claim that the band was using the picture without her authorization. Click here for another story, from Entertainment Weekly.

    Kennis, however, claims that her signature was forged on a release form by photographer Tod Brody.

    Whatever comes of this suit, one thing remains true: it’s a great album.

    (See additional coverage of this lawsuit here and here).

  • You may recall that two weeks ago we mentioned Tito’s Wing Challenge, a contest at Grille 33 at the Channel, a local burger joint here in Greenville, South Carolina. Well, it appears that Greenvillians may not have been up to the task, as the contest has been watered down a bit, presumably due to local patrons’ inability to beat it. Just two weeks ago, a contestant was required to eat a dozen hot wings in 15 minutes and then wait 15 minutes before taking a drink. Well, as shown in the above photograph, Grille 33 has altered the challenge. Now, contestants need only wait five minutes before taking a drink after consuming all of their required wings.
  • The South Carolina Small Firm Blog has a post on disposing of old hard drives.
  • J. Benjamin Stevens at the South Carolina Family Law Blog offers these additional thoughts on Jennings v. Jennings, a new South Carolina Court of Appeals case we previously mentioned here. You’ll recall that was the case involving a wife’s surreptitious use of her husband’s email account and the legal ramifications thereof.

Smells Like Lung Disease

Fate, it seems, is not without a sense of irony. In his bid to quit smoking and improve his health, Larry Newkirk began eating microwave popcorn to suppress his appetite. What Mr. Newkirk could not have known, while on his course to eating five to seven bags of microwave popcorn each day for eleven years, was that the delectable treat (allegedly) caused his severe lung disease, bronchiolitis obliterans. We reported earlier on a recently filed case involving allegations that Diacetyl‘s “characteristic buttery odor” smelled more like lung disease than popcorn flavoring, but the Eastern District of Washington in Newkirk v. Conagra Foods, Inc., No. CV-08-273, 2010 WL 2680184 (E.D. Wash. July 2, 2010) has had a chance to examine the issue. It issued some Defendant-friendly rulings on a few motions on Daubert as well as summary judgment.

A large part of the opinion focuses on the expert testimony of Dr. David Egilman, the plaintiff’s expert, who is board certified in Occupational and Internal Medicine. Holding degrees from Brown and Harvard, Dr. Egilman is certainly no intellectual lightweight. Mr. Newkirk put forth Dr. Egilman to establish general causation and specific causation. The court excluded Dr. Egilman’s testimony and ultimately granted summary judgment.

Unfortunately for Mr. Newkirk, there was no scientific foundation for Dr. Egilman’s opinions, and, neither does it appear that there will be any scientific foundation, because “manufacturers of microwave popcorn stopped using diacetyl in or around 2007.” Previously, there had been some research on the employees in microwave popcorn plant, and that research tracked the employees according to their particular job function. In addition, there was an EPA study released in 2007 studying the chemicals released when a bag of microwave popcorn is opened. But the “scientific community has yet to determine a safe level of diacetyl exposure.” Dr. Egilman made leaps in logic, equating the diacetyl exposure of a manufacturing worker (those who worked around the large vats of flavoring tantalizingly called slurry) to the purported exposure of a consumer opening a bag of popcorn in the home.

However, there is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical.

Newkirk at *9. The court pointed out this “analytical gap,” even to the point of quoting from Dr. Egilman’s affidavit and expert report (several times), followed by the explanatory parenthetical “citing nothing.” I might try that in my next response brief if I ever need to quote the plaintiff: “[Ridiculous point of law asserted by plaintiff.] (citing nothing).”

Unlike some plaintiffs, Mr. Newkirk has an actual injury. Unfortunately for him, there is no science supporting his allegation of the causation of his injury. We applaud the District Court for demanding science, and, seeing none, dismissing this case.

Counterfeiting in the Wine Industry on the Rise; Potential Liability for Manufacturers

Rummaging through an assortment of handbags from the trunk of a car in a New York City alleyway, there’s really no expectation from the consumer that she’s purchasing anything other than a counterfeit product. Counterfeit products are not, however, sold exclusively in alleyways, and makers of counterfeit products are becoming more sophisticated as industry effects to stop them become more widespread.

One industry that has seen an uptick in counterfeiting in recent years, and one that has garnered some significant attention in the press (see here, here), is the wine industry. Wine fraud caught the attention of the media with the 2006 lawsuit of wealthy American businessman William Koch, who alleged that bottles of wine he purchased at auction for approximately $500,000, which were held out to be wines originally owned by Thomas Jefferson, were frauds. Litigation of his claim is ongoing.

Several Freakonomics blog articles in The New York Times highlight some of the issues presented by wine-industry fraud. First, one of the articles examines a study of eBay auctions of empty wine bottles. The sale prices for empty, high-end wine bottles at the online auction site are often the prices full bottles of the wine would fetch in the marketplace. This presents “powerful” evidence that the empty bottles are being purchased to be filled and resold. The second of the articles discusses the fact that while high-end frauds like that alleged by William Koch garner significant attention and likely result in lawsuits, counterfeiting in the low-to-midrange wine market is much easier to get away with. This is true for several reasons, most notably that there’s little incentive for consumers to sue for fraud over what would likely be very little damages.

So how does this translate into manufacturers’ or sellers’ liability? A 2009 legal advisory published by the National Association of Wholesale-Distributors (NAW) notes that wholesalers selling counterfeit products face significant product liability exposure for any injury, business interruption, or other loss in connection with sale of counterfeit products. It notes that the wholesaler is likely the one ultimately to be held liable for the damages, as the “manufacturer” of the counterfeit product may be impossible to find, may be insolvent and/or uninsured.

Finally, a Wine Business Monthly article recently discussed the potential liability of legitimate wine manufacturers, as toxic materials are sometimes incorporated into the counterfeit products. While a company cannot be held liable for a counterfeit product, the articles notes, it can be open to liability if it knew about “an existing health threat to the consumer” and did not actively seek to “inform and protect the public.” An example, it notes, was the recent Colgate toothpaste recall by the manufacturer, where counterfeit tubes containing chemicals used in antifreeze had made it onto store shelves in the United States and South America, causing significant health issues and even death. The author argues that the wine industry would benefit from its trade and professional associations developing shared industry standards and techniques in fighting the fraud, rather than undertaking hundreds of uncoordinated approaches that would be less effective and more expensive.

Adequate Warning?

For today’s post we will delve into the realm of Aesthetics. I promise that I will not wax eloquently about Aristotle and his views on the subject. Instead, I want to talk about the place where products manufacturers and the objects of their desire converge with the statutory and common law of your jurisdiction. Yep, you guessed it, I’m talking about warnings. More specifically, the placement of such warnings on a product. I can only imagine that one of the most difficult topics for manufacturers to discuss is where to put the warning(s) on a product. Just think about the sheer number of man-hours spent on deciding where a warning should be placed in order to adequately warn the consumer. I can only imagine executives having a meeting with the follow questions on the agenda: Will the warning be conspicuous enough? Is it in a place the consumer will look or be expected to look? Will the warning make our beautiful product look ugly if we put it here? Will our product look more like a NASCAR vehicle than the thing of beauty that our engineers designed? The United States District Court for the Middle District of Georgia, Athens Division, touched on this issue in a decision last week.

In Morris v. Harley Davidson Motor Co., No. 3:09-CV-74(CDL), 2010 WL 2723079 (M.D. Ga. July 7, 2010), the court addressed Harley’s Motion for Summary Judgment. The facts of the case were that the plaintiffs (husband and wife) were involved in a single motorcycle accident. Morris at *2. At the time of the accident, the plaintiffs were riding the motorcycle and pulling a trailer. Id. The rear tire failed, resulting in the accident and the death of the plaintiff’s wife. Id. The plaintiff also sustained serious injuries. The owner’s manual contained several warnings, including a warning to not exceed the motorcycle’s Gross Vehicle Weight Rating (GVWR) or Gross Axle Weight Rating (GAWR). Id. Based on the motorcycle’s GVWR from the factory, plus a full tank of gas, the motorcycle allows for an additional 420 pounds of weight capacity. Id. at *1. There was not a warning anywhere stating that the motorcycle was only rated to carry an additional 420 pounds. Id. at*2.

The manual also contained a warning against pulling a trailer with the motorcycle. In addition to the warnings contained in the manual, the motorcycle had warnings posted on the motorcycle itself. There was a warning placed inside the cargo compartment on the motorcycle and an information plate on the steering head, which listed the motorcycle’s GVWR. Id. The plaintiff testified that he did not see these warnings and apparently he did not read the owner’s manual either. Id. at *2-3.

Under Georgia law, there are two theories that a plaintiff can pursue to establish a breach of the duty to warn: first, by failing to adequately communicate the warning and second, by failing to provide and adequate warning of the potential risks associated with the product. Id. at *3. The plaintiff contended that the warnings were not adequately communicated to him. Interestingly, under this theory, failure to read the warnings does not act as a bar to recovery for a plaintiff. The court found that under such a theory, issues “as to location and presentation of the warning” are involved and thus there was a genuine issue of a material fact for the jury to determine.

This case is interesting to me as I consider my self somewhat of a car buff. Admittedly, there is a vast difference between cars and motorcycles, but I would suggest that there is one common ground between enthusiasts of cars and bikes. Most would agree that they prefer to drive or operate a vehicle that they think looks good. For me personally, I love the classic and venerable Jeep CJ-7. I simply love the way it looks. However, I can’t imagine I would want to drive a Golden Eagle that has a big ugly warning plastered all over the dash. In the case of a motorcycle, this issue is all the more problematic. There simply aren’t that many places on a motorcycle that a warning could be placed, due to the size of a bike, that wouldn’t detract from the aesthetics of the motorcycle. However, I do think that this is a real difficult issue where the manufacturer has to wrestle with finding a solution to try and meet the aesthetic requirements of the consumer and at the same time adequately communicate any warnings with the user.

Filing Suit Against "Alternative" Product Manfucturers is Not Enough on Summary Judgment

Our post last Monday, Twombly and Iqbal Satisfied Even Where Plaintiff Cannot Identify Specific Manufacturer of Alleged Defective Product, highlighted a case which found a plaintiff could get past the motion to dismiss stage of litigation by naming “alternate” defendants as the manufacturers of the alleged defective product at issue. We stated that this type of pleading would often be used in the medication context and to watch for cases that determine how far a plaintiff can go naming “alternate” defendants. This question was answered by at least one court on June 21, 2010 in Kahle v. APP Pharms., LLC, No. 5:09-CV-78, 2010 WL 2521420 (N.D. W. Va. Jun. 21, 2010).

In Kahle, the decedent suffered from a intracerebral hemorrhage and was administered a “single low-dose heparin ‘lock flush’ that was allegedly used to ‘flush’ his intravenous line.” After the administration of this dose of heparin, the decedent suffered from heparin-induced thrombocytopenia, gangrene, and deep vein thrombosis. Kahle asserted that the heparin caused these complications,which led to the decedent’s death.

Kahle filed claims for strict liability, negligence, breach of warranty, negligent misrepresentation, fraud by concealment, and wrongful death against a number of defendants that manufactured heparin. During discovery, the hospital that administered the heparin produced documents showing that they purchased heparin products from two defendants, Hospira and APP Pharmaceuticals. However, the administrator of the hospital testified that he could not determine if it was Hospira’s or APP Pharmaceuticals’ product that was administered to the decedent.

Therefore, both Hospira and APP Pharmaceuticals filed motions for summary judgment on the grounds that Kahle failed to establish causation because she failed to prove whose product was administered to the decedent. In response, Kahle argued that “evidence that two manufacturer’s products were used in an area is enough to defeat a defendant’s summary judgment motion.” The Court disagreed finding the evidence Kahle had that established two manufacturers provided heparin products to the hospital “suggests a mere possibility that the decedent may have been exposed to [a certain defendant’s] product.” This mere possibility was not enough. Therefore, the Court granted the defendants’ motions for summary judgment ruling Kahle failed to establish which defendant’s “product proximately caused the decedent’s injuries.”

This case instructs that while a plaintiff may be able to survive a defendant’s motion to dismiss when he or she files suit against “alternative” product manufacturers, courts may not be so lenient after discovery is complete and the plaintiff is still not able to establish which defendant manufactured the product that allegedly caused the plaintiff’s injuries.