Friday Links

  • Check out the comic book cover above for Superman #176 (published way back in 1965). Superman has apparently just been sworn in as a witness, presumably at a criminal trial, and has been asked to state his name for the record. Why he decided to answer via chalk on a chalkboard seems peculiar, despite the dilemma he faces in revealing his identity in open court. Surely, the prosecution previously addressed this matter via motion in limine to thwart any attempt to place the Man of Steel in this tough spot. In fact, considering Superman’s role as a crimefighter, it is very likely that it would be the prosecution calling him as a witness to testify against the defendant, which begs the question: Why would the prosecution place Superman in this terrible, terrible position? Of course, the best bet may be for Superman to reply that his name is Kal-El, the moniker given to him by his Kryptonian parents. How could the defense attorney object to that?
  • “[W]e face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived.” Fox Television Stations, Inc. v. Federal Commc’ns Comm’n, — F.3d —-, 2010 WL 2736937, at *7 (2d Cir. July 13, 2010) [PDF]. It was in that opinion that the Second Circuit struck down the FCC’s so-called “fleeting expletives” policy. We here at Abnormal Use are not certain why the court felt it necessary to reference the conception of social media company founders (and we wonder if some federal law clerk had to do that math). For more on that opinion, see this post by Christine A. Corcos at the Media Law Prof Blog.
  • A lesson from the Third Circuit: If you a a corporate officer that is a party to litigation, and your Chief Financial Officer is on the stand at trial testifying, don’t send him text messages about his testimony while the judge is conducting a sidebar with counsel. It’s generally bad form, and the judge will declare a mistrial. For more, see this post by Jeffrey Kuntz at The Florida Legal Blog.
  • J. Benjamin Stevens at the South Carolina Family Law Blog offers this post about the perils of litigants posting about themselves on Facebook.
  • Speaking of which, the South Carolina Court of Appeals this very week released Jennings v. Jennings, an opinion in which the issue was a husband’s claim that his wife had improperly logged into his Yahoo account, printed emails about his purported girlfriend, and provided said emails to her attorney and an investigator.

Take Heed While Diving into the Summer

With summer in full swing and extreme temperatures being felt across the nation, we thought it would be an opportune time to remind those who would seek refuge from the heat in an above-ground or shallow pool to remember NOT TO DIVE! Without fail, news stories abound every year about tragic accidents and injuries that occur when people cannot resist the temptation to dive head-first into the water, either without knowing or simply disregarding its depth. One study reported by ABC News / Health in August of 2008 found that 6,500 adolescents alone ended up in emergency rooms each year for diving-related accidents, averaging one injury per hour. Plaintiff Jennifer Sheehan, while not among the adolescent group, is now acutely aware of the life-long consequences that can result from failing to pay attention to the multiple warnings that were posted on and in an above-ground pool regarding the danger of diving into shallow water.

In the case of Sheehan v. The North Am. Mkting. Corp., —F.3d—-, 2010 WL 2598390 (1st Cir. June 30, 2010), Plaintiff brought a products liability action in Rhode Island against a swimming pool seller and manufacturer for negligence, strict liability, and breach of express and implied warranties, seeking to recover damages for injuries that she sustained after attempting to dive into an above-ground pool holding only 3 1/2 feet of water. As might have been anticipated, Plaintiff broke her neck, rendering her a quadriplegic. She claimed in her lawsuit that the pool was defective in its design. The lower court granted summary judgment to the defendants on the grounds that both Plaintiff’s proof of proximate cause was unduly speculative and that she assumed the risk of serious injury when she attempted the dive. The Plaintiff appealed to the First Circuit Court of Appeals. While the Court wavered on the issue of whether Plaintiff had set forth sufficient evidence in order to reach a jury as to proximate cause, the Court could not look beyond Plaintiff’s own actions in assuming the risk of her injuries.

The accident occurred on August 8, 2002, when Plaintiff was 32 years old. She and a friend had spent the afternoon at a restaurant and beach club, where they proceeded to have mixed drinks, beer and shots of tequila, before returning to the home owned by Plaintiff’s friend. At the home was an above-ground swimming pool that was 18 feet in diameter and only 4 feet high, holding water at a level of 3 1/2 feet. The pool was not surrounded by any decking, but only had a ladder over the edge of the pool that was used for entry and exit. The top perimeter of the pool was covered by a flat piece of aluminum coping that was approximately 6 1/2 inches wide and that served to connect the pieces of the pool wall and to prevent damage to the top surface of the wall. There was no dispute that it was not intended for standing or diving.

The pool actually contained four warning signs, one located on the coping by the ladder, two identical warnings located just below the coping and above the water line inside of the pool at various distances from the ladder so that they were visible to people within the pool, and additional warnings on each of the three slip-resistant ladder treads on the outside of the pool. The warnings all contained bold capital letters in red or black with some variation of the words “DANGER,” “SHALLOW WATER,” and “NO DIVING.” After playing in the pool for about 30 minutes, Plaintiff hoisted herself up into a sitting position and then to a standing position along the coping. She stood there for about 20 seconds before performing a shallow dive in which she aimed across the pool rather than downward. Plaintiff successfully completed the dive and admitted during her deposition that she knew that diving into shallow water could be dangerous because she could hit her head on the bottom. However, Plaintiff added that, under the circumstances, she believed that the only danger she was facing was scraping the bottom of the pool based on the manner in which she chose to dive. She also denied ever hearing of anyone getting hurt from diving into shallow water. Plaintiff’s friend jokingly scolded Plaintiff about her ability to read the warning signs, prompting them both to laugh.

Although Plaintiff was lucky during her first dive, her luck did not last when she attempted a second dive. Plaintiff followed the same routine in pulling herself up onto the coping. This time, however, Plaintiff lost her balance as she was attempting the dive, causing her to enter the pool at a steep angle, striking her head and causing a burst fracture of the C5 vertebra. Although Plaintiff denied feeling impaired from the multiple drinks that she had consumed before swimming, her blood alcohol level was estimated to have been between 0.169% and 0.178% at the time of the accident, which would result in outward signs of intoxication, including staggered gait, impaired vision and decreased reaction times.

Although the Court addressed Plaintiff’s alternative theories regarding proximate causation (that the coping was unstable and too narrow, such that she lost her balance, or, alternatively, that the coping should have been designed to prevent anyone from standing on it altogether), it ultimately elected not to resolve the difficult causation questions and to resolve the case solely on the grounds of assumption of the risk. Plaintiff argued that there remained genuine issues of material fact as to her appreciation of the risk of diving and that such disputes ordinarily involved questions of subjective knowledge that should be resolved by a jury. Here, however, the Court reiterated the often-repeated rule that, if the facts suggest only one reasonable inference, the issue becomes a question of law for the judge. Moreover, as to the risks associated with diving into shallow water in particular, the Court ruled that the activity is akin to those types of activities as to which no adult will be believed if he or she says that she did not know or understand the risks, a position reflected in the Restatement (Second) of Torts §496D, cmt. d. For Rhode Island, protestations of ignorance from an adult regarding the risks of diving into shallow water are deemed not believable. Rather, the danger of diving head-first into shallow water in an above-ground swimming pool was, or should have been, obvious to a 32 year-old woman of normal intelligence.

Plaintiff further could not avoid the outcome by arguing that the only risk that she subjectively considered was that she might scrape the bottom of the pool based on the way that she intended to dive. Where a person is presumed to know the risks of dangerous conduct, that person is charged with knowing all of the ordinary risks associated with the conduct. Plaintiff could not claim to have assumed only the risk of a perfectly executed shallow water dive. Further, Plaintiff’s argument that her intoxication should be taken into consideration was also rejected. She could cite to no law to support her position in that regard. A person who voluntarily becomes intoxicated is held to the same standard as if she were sober.

Based on the above, the First Circuit affirmed summary judgment in favor of the defendants. Although we can presume that people are aware of the risks of diving into shallow water, let this serve as an additional warning nonetheless.

$8 Million Verdict in Jeopardy Because of Plaintiff’s Counsel’s Closing Statement

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

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

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

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

Total Recall?

No, today’s post isn’t an homage to Arnold. Or maybe it is . . . . If you are like me, you are likely growing tired of all of the product recalls that have been issued this year. We here at Abnormal Use try to stay on the cutting edge and provide our readers with up-to-date and timely information whenever a recall is issued. Think of us as the informant to the informed.Whether it’s McDonalds’ Shrek glasses, SpaghettiOs, Tylenol, or baby strollers, we were there for our readers. Despite the wonderful content for our blog, I believe that our readers, like most Americans, are beginning to hit their saturation point with all of these product recalls.

Recently, there was a great article in The Washington Post that addressed this very issue. This phenomenon actually has a name: “product fatigue.” In her article, the writer points out that people are becoming confused by the number or recalls or even worse, simply ignoring the recalls.

‘It’s a real issue,’ said Jeff Farrar, associate commissioner for food protection at the Food and Drug Administration, who said even his wife has complained about the difficulty of keeping pace with recalls. ‘That number is steadily going up, and it’s difficult for us to get the word out without oversaturating consumers.’ The problem is twofold: Some people never learn that a product they own has been recalled, and others know they have a recalled product but don’t think anything bad will happen. ‘The national recall system that’s in place now just doesn’t work,’ said Craig Wilson, assistant vice president for quality assurance and food safety at Costco. ‘We call it the Chicken Little syndrome. If you keep shouting at the wind — ‘The sky is falling! The sky is falling!’ — people literally become immune to the message.’

The article from the Post also detailed some of the manufacturers’ reactions to recalls. Costco is actually notifying its customers, with a telephone call, when a product purchased by the customer has been recalled. I applaud Costco for their efforts, but at the same time I’m not sure that I want my local Publix asking me for my personal information so that they can call me if there is ever a problem with a product that I purchased from their store. It will be interesting to see how other manufacturers and sellers respond to this issue.

From the perspective of defense lawyer, I am becoming increasingly concerned about my clients’ future. Yes, we defense lawyers are always worried about our clients’ well-being and more specifically their exposure to bogus claims. My concern is this: what’s to keep some plaintiff from claiming the following: “Back in 2010 there were just so many product recalls I didn’t know what to do. I didn’t know that I couldn’t use my Shrek glass from McDonalds to help me swallow my Tylenol that I felt that I needed to take after eating my bowl of SpaghettiOs.” Besides the obvious procedural issue which would require me to immediately move the court to add additional defendants, how am I to respond to such a claim?

Twombly and Iqbal Satisfied Even Where Plaintiff Cannot Identify Specific Manufacturer of Alleged Defective Product

In a recent action in front of the U.S. District Court for the District of Rhode Island, defendants in a product liability action argued that the plaintiff failed to satisfy the pleading requirements of Twombly [PDF] and Iqbal [PDF] because she failed to identify the manufacturer of the product she alleged to have caused her injuries. District Judge William E. Smith, disagreed with defendants, finding plaintiff had “made out facially plausible claims against each Defendant, alternatively.” Koch v. I-Flow Corp. et al., C.A. No. 09-441 S., 2010 WL 2265670 (D.R.I. Jun. 7, 2010) [PDF].

Plaintiff Shereen Koch (“Koch”), underwent three arthroscopic shoulder surgeries in 2005 and 2006, which included the “implantation of a pump designed to bathe Plaintiff’s shoulder joint with a local anesthetic after surgery.” Koch alleged that the treatment had not been approved by the federal Food and Drug Administration and resulted in permanent injuries to her shoulder cartilage. Plaintiff filed suit against the manufacturer of the pump as well as the manufacturers of bupivacaine, the anesthetic administered through the pump. She asserted claims against these defendants for I) negligence and negligence per se, II) strict products liability, III) breach of express warranty, IV) breach of implied warranties, V) fraudulent misrepresentation, VI) fraudulent concealment, VII) negligent misrepresentation, and VIII) fraud and deceit.
Bupivacaine is manufactured and marketed under different trade names and prior to filing her complaint, Koch was not able to identify which brand of bupivacaine she received in her pump. As a result, she filed claims, in the alternative, against both manufacturers of bupivacaine. In response, these bupivacaine manufacturer defendants filed a motion to dismiss plaintiff’s claims, Counts I – IV, on the ground that she cannot meet the standard for facial plausibility established by the United States Supreme Court because she could not identify the specific brand that harmed her.
The Court denied this motion to dismiss stating that while Koch must ultimately identify which defendant manufactured the bupivacaine administered to her, she made out plausible claims against each defendant, which was sufficient at this stage of the litigation. On Plaintiff’s fraud and misrepresentation claims, Counts V – VIII, the Court granted defendants’ motion to dismiss based upon Koch’s failure to satisfy Rule 9 by failing to set forth specific and particular facts concerning defendants’ alleged misrepresentations.
This decision instructs that manufacturers of products subject to a products liability action may be required to litigate an action beyond a motion to dismiss even where a plaintiff cannot specifically identify the brand of the product that caused the alleged harm. While this will most likely arise in the medication context, all manufacturers should be aware of this possibility.

Friday Links

  • If there is one thing we here at Abnormal Use love more than wings, it’s liability releases arising from the consumption of wings. We recently learned that Grille 33 at the Channel, a burger joint that just opened up a block from our offices here in Greenville, has officially issued its “Tito’s Wing Challenge” (pictured above, click to enlarge). Note the stern pronouncement written in red chalk: “Must Sign Waiver.” Now, we here were too chicken to accept the challenge (as we have a very delicate palate), but we did manage to review the waiver in question (pictured below, click to enlarge). Someday, though, we will muster up the courage to take the challenge, but it shall not be today. No, not today.

  • The Texas Lawyer‘s Tex Parte Blog reports on a new iPhone 4 products liability suit recently filed in the U.S. District Court of the Southern District of Texas. Meanwhile, Randall Ryder at Lawyerist claims that “lawyers are wasting their money if they think [the iPhone 4] will add a new dimension to their practice.” Well, to that, we can only say, that but for our handy iPhone 4, we would not have been able to take those crisp pictures depicting the Tito’s Wing Challenge and the required liability waiver.
  • The Litigation and Trial Blog speculates that Facebook founder Mark Zuckerberg will not bring a defamation suit as a result of the upcoming film, The Social Network, which details the founding of Facebook. He might do some defriending, though, we suspect.
  • Jeffrey V. Mehalic of the West Virginia Business Litigation Blog spends some time talking about Barbour v. International Union, in which the Fourth Circuit adopted the last-served defendant rule for removal purposes. A good post, that. (We previously mentioned the Barbour opinion briefly here).

The Death Grip

Answering complaints about the new iPhone 4’s reception when held a certain way, Steve Jobs tersely responded “Just avoid holding it in that way.” According to this article from and numerous other sources, Jobs’ enviable smugness has not been well taken. Shortly after the iPhone 4’s release, “[r]eports soon emerged that holding the phone with fingers covering the three black lines on the phone’s edge and the bottom left corner caused its data reception to plummet.” Multiple suits have been filed claiming that the iPhone 4 is a defective product. Although the problem may be fixed by using a case for the phone, holding it a different way, or perhaps a software workaround, does the $199/$299 price entitle the user to hold the iPhone in any way she sees fit? Perhaps RIM or another competitor can parody Apple’s 1984 commercial, showing a frustrated Apple consumer shot-putting the iPhone 4 (using the death grip of course) at a photo of Steve Jobs. Certainly the drones from commercial could be re-worked as your average thirty-something, Apple-loving, Jobs-doesn’t-make-mistakes consumer. Too bad this didn’t happen in 2012, or we could point to the failure of Apple as a sign of the impending apocalypse.

What were the consumer expectations of the new iPhone anyway? Anyone with an older model iPhone has some anecdotal evidence that call quality is questionable. No one buys the phone for its call quality. No one. You buy it so you can ignore others in public places. You buy it because it has an Apple on the back case. However, as is the case with evolving technology, it’s not clear how big a problem really has to be before its called a defect. Wasn’t Windows 98 really a less buggy version of Windows 95? Even after all of the years of development, Microsoft Windows wasn’t able to escape the blue screen of death, but instead added a black screen of death. Surely sophisticated software consumers are smart enough to know that no gadget is perfect. Even if you can define a shortcoming as a defect legally, the proper remedy is not clear. How much is annoyance really worth? There’s no doubt that the iPhone 4 can make calls. But you might need to buy a case, or hold it a certain way. For now, Apple has not admitted that there is a design defect in the hardware, but the problem can be corrected with a software fix.

This also brings up the practical issue of how hardware defects are a lot harder to fix than software defects. I assume that Apple does not want to provide a free case to all iPhone 4 purchasers, but a software fix is likely not a big deal. Nevertheless, we’ll be able to tell how much this has affected Apple when its exclusivity contract with AT&T ends. My guess is that when other carriers have access to the iPhone 4, there will be no shortage of purchasers. Phones maybe, but no purchasers.

Unattended Candles

To foresee or not to foresee, that is the question. Well, at least its the question when you are arguing for summary judgment on the basis of the plaintiff’s failure to produce evidence on the issue of proximate cause. In a recent unpublished decision by the United States Court of Appeals for the Fourth Circuit, the court reviewed the seemingly symbiotic relationship between the proximate cause element in a negligence action and the requirement that the injury be a foreseeable consequence from an act or an omission. Graham v. Progress Energy, Inc., No. 08-1906 (4th Cir. June 25, 2010) (unpublished) [PDF].

In Graham, the court was reviewing the district court’s grant of summary judgment in favor of the defendants. The case arose out of an incident in which the plaintiffs’ home caught on fire. The fire started after the plaintiffs began using candles as a source of light. The reason that they had to use candles was that they failed to pay their electric bill and thus the power to their home was disconnected. On the date that the fire occurred, the plaintiffs had fallen asleep before extinguishing their candles. The plaintiffs sued Progress Energy on a negligence based claim.

The court framed the narrow issue as being “whether a reasonable jury could conclude that Progress’s alleged negligent conduct proximately caused the Grahams’ alleged harm.” The defendants did not dispute causation-in-fact. They admitted that it was foreseeable for the plaintiffs to use candles to illuminate their home. However, Progress Energy contended that the plaintiffs actions (i.e., falling asleep before extinguishing the candles) was an intervening cause that broke the chain of causation. Furthermore, the defendants claimed that while using candles to illuminate their home may have been foreseeable, …”going to sleep with the candles lit or otherwise failing to attend to the candle so as to prevent them from falling was certainly by no means so.”

The court opined that the defendants’ argument “misconstrues the relevant inquiry because South Carolina law does not require that particular events be foreseeable.” The court went on to reason that only the general harm and general intervening cause need to have been foreseeable. The court found that since candle use was foreseeable, a reasonable jury could have concluded that some amount of candle misuse was also foreseeable. Finally, the court pointed to evidence within the record that supported the conclusion that the plaintiffs’ alleged harm was also foreseeable. As such, the court reversed the grant of summary judgment.

The court’s analysis, albeit sound, leaves the ordinary practitioner wondering what is the true meaning of an intervening cause. The answer is found in the procedural posture of this case – this appeal involved the review of a summary judgment order. Perhaps on remand, the once (and future?) fixture of the American judicial system will resolve this issue. Of course, I’m referring to the jury trial. For all of you out there, who like me, have only been practicing law within the last decade, allow me to explain. A jury is the fact finder that resolves factual disputes during a trial. We’ll discuss the term “trial” during our next lesson. As for our weary candle users, one thing we can be sure of– it is foreseeable that the jury will have to determine issues like comparative and contributory negligence before these plaintiffs will be permitted to recover for leaving the light, I mean candle, on.

Bluejays and Mockingbirds

“Shoot all the bluejays you want, if you can hit’em, but remember it’s a sin to kill a mockingbird.” This advice by Atticus Finch to his young daughter Scout is as poignant today as it was when Harper Lee first published it 50 years ago this week in To Kill a Mockingbird. This Sunday, July 11th, 2010 marks the Golden Anniversary of Lee’s iconic novel about courage, racial prejudice, compassion, and access to justice. This beloved story is second only to the Bible on several reading lists for books that “make a difference.”

While he is fictional, Atticus Finch has served as a role model and inspiration for many lawyers since his creation in 1960. His unwavering courage in defending Tom Robinson is best summed up in his own words to his son, Jem: Courage is “when you’re licked before you begin but you begin anyway and you see it through no matter what.” Atticus was persistent. He never lost faith in the American jury system, notwithstanding the terrible injustice of the guilty verdict rendered against his client.

What does Atticus Finch have to do with products liability? Not much. What does access to a jury trial have to do with products liability? Everything! In the same 50 years since the publication of To Kill a Mockingbird, the Federal Rules of Civil Procedure have been amended 10 times. With the exception of the rewrite in 2007 to make them easier to understand (which is worthy of an entirely separate blog entry), it is challenging to argue that the amendments have made access to a jury trial in federal court easier or more efficient. These assertions are borne out by the dramatic fall off in civil cases tried to a verdict in U.S. District Courts across the country. In 2009, according to the Clerk’s Office for the U.S. District Court of South Carolina; 3,532 cases were filed and only 21 cases or .0059% were actually tried to a verdict. Using a cost benefit analysis one must at least ask the question: Does this level of utilization justify the cost of the system?

Blame it on ADR, the FRCP, run away verdicts, cost, or the reason du jour. The fact of the matter is that the civil jury trial is on the endangered species list. The primary distinguishing factor of the American civil justice system is our jury trial. Access to the jury trial in Federal court must not only be preserved, it must be improved. If we truly view Atticus Finch as role model then it is time for lawyers to step up, shoot some bluejays and save the mockingbird. How do we do this?

On May 10th and 11th the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States sponsored a conference at Duke University School of Law. In addition to the judicial participants, over 70 panelists and speakers came together to discuss major substantive revisions to the FRCP, and ultimately, access to jury trials in federal court. Matters being considered included, but were not limited to: Pleadings, Discovery, Protective Orders, and Cost and Delay. Our firm’s lawyers through their membership in the Lawyers for Civil Justice have been involved in and supportive of this movement for improving the FRCP and access to the civil jury trial. Follow this link [PDF] to the LCJ White Paper submitted at the Duke Conference. If you have yet to get behind this effort, now is the time to make your position known. If you would like more information about this exciting opportunity for change please contact us.

And remember, while, “[i]t’s a sin to kill a mockingbird,” it may be a greater sin to let one die when there is an opportunity to revive it!

The Holiday Weekend

Happy Fourth of July from Greenville, South Carolina. We are out of the office today, still observing the Fourth of July holiday and recovering from yesterday’s revelry. We trust that all of our readers exercised reasonable care over the course of the holiday weekend. If not, then perhaps you’ll be the subject of a future products liability post here on our blog. As for our lawyer readers, we hope that they paused briefly to reflect upon the ideals of our Founding Fathers who crafted our American system of justice, which despite its occasional flaws and hiccoughs, remains the best and most just in the world. They don’t teach you this in law school, but it is acceptable, sometimes, to lower that cynical facade. (This photograph above, taken just blocks away from our Greenville office on the Fourth of July 4, 2009, comes from the photoblog, Greenville Daily Photo.). Oh, and don’t expect a Bastille Post from us in a week and a half.