Thursday, September 16, 2010

No Lifetime Appointment for Jimmy Smits in New NBC Legal Drama, "Outlaw"

Apparently, and unfortunately, NBC is determined to reboot its fateful 1980s series, “Knight Rider,” in the form of a new legal drama. You heard me right. Today, we here at the legal blog Abnormal Use review NBC’s new television show“Outlaw,” a heavy handed new lawyer show which premiered last night. As a series, it takes the aforementioned “Knight Rider” formula (unfortunately the 2008 version) and attempts to apply it to a would-be legal series. Sigh.

Before I lose the readership in this comparison, allow me some introduction and factual development. “Outlaw” is one of NBC’s attempts to return to scripted programming after “The Jay Leno Show” debacle. I was a bit skeptical of the premise when I read that Jimmy Smits portrays “former Supreme Court Justice Cyrus Garza, a playboy and a gambler who always adhered to a strict interpretation of the law until he realized the system he believed in was flawed.” But there’s always hope, however naive, that NBC will come up with a decent legal drama before the “Law and Order’ concept becomes too worn.

Here’s the plot summary: Cyrus Garza is “arguably the most conservative justice” on the Supreme Court. Cyrus has a problem because he feels like he has let down his dear old dad, a recently deceased lawyer-activist who championed liberal causes. After a one night stand with an twenty-something ACLU member, Cyrus realizes that conservatism is innately wrong, and before resigning his appointment, he grants a new trial to a convicted cop killer. Cyrus joins a law firm (at which Jan from “The Office” is the managing partner) and assembles a team who will fly all over the country righting wrongs perpetrated by our justice system. Cyrus then becomes the head lawyer on the defense team of the cop killer. His team discovers evidence not presented at trial establishing that the dead cop’s husband actually killed the cop. I will affirm that I in no way have embellished the plot. If this were not enough, Cyrus owes his bookie $250,000 and will have to pay at some point during the next three months.

Here’s the deal. As you can tell from my summary, the premise of the show is absurd. But as we’ve noted before, real life law practice can be pretty boring, so I’m not asking the show to be real. Legal Knight Rider though, is a bit much. The dialogue beats you over the head with the idea that Cyrus is sick of preserving a justice system at the expense of the innocent. He actually says things like “I’m hurting the people that I should be protecting.” By the end of the show, after Cyrus and company free the innocent man, it’s clear that “one man can make a difference.” The absurdity of the premise will likely mean the end of the show. Cyrus had his epiphany in episode one. He is now a crusader, a man of great moral fiber. What is left to do now? There’s no internal conflict in the protagonist. Trying to give Cyrus instant depth works against the longevity of Outlaw. And it promotes the same hackneyed legal plots. Moreover, there is no sense that there will ever be any real characters other than Cyrus. He has three lawyers and a private investigator that work under him, but the characters all seem a bit fungible. It’s possible they were cardboard cutouts, or to be less harsh, merely extensions of Cyrus himself, since even this champion of the people can’t be in two places at once or carry on an extended dialogue with himself. I would not be surprised if, at some point in the future, we discover that Cyrus has an evil twin, allowing Cyrus to carry on conversations with evil Cyrus. This would ensure that we all know that Jimmy Smits is the main character on the show.

From a legal standpoint, do you think there is anything questionable about the judge who essentially overturns a murder verdict becoming a lawyer for the criminal defendant? The show also asserts a stale take on jurisprudence, namely, that the court is not really an actor in our legal system. You kind of get the feeling that, without Cyrus preaching about the real meaning of justice, the judiciary would sit around for the next few years, throwing their hands in the air, not knowing what to do about all the terribly conservative legal precedent, and let a lot of innocent prisoners be executed. Thankfully, there is the Outlaw, who I presume to be Cyrus. Now judges everywhere will be able to take some steps to move our system forward. Yet again, one man can make a difference. The passivity attributed to the judiciary is too much. It takes the form of powerlessness rather than stare decisis. I don’t know anyone who thinks that the judiciary is powerless. But apparently Cyrus does, because after all, he quit his lifetime appointment on the world’s most powerful court to dispense some real justice.

That being said, this show isn’t nearly as bad as the freshman lawyer drama, “The Deep End.” To be reminded of why that show lasted 5 episodes or so, please revisit our initial review of that show here. But “Outlaw” isn’t really that good either. It’s obvious that NBC is depending on Smits‘ star power to carry the show. In fact Smits‘ bio on the cast page recites the phrase “critically acclaimed” about Smits or his prior work six times. Notice I said prior work. Will Smits enjoy the same success as had by Joe Mantegna, who spurred CBS’s 2002 Supreme Court drama, “First Monday” to an amazing 4-month, 13-episode run? Only time will tell. Meanwhile, I hope the writer’s will immediately begin to add something to this so-far bland show.

The pilot episode of Outlaw aired at 10 p.m. EDT on NBC. The episode was written by John Eisendrath and directed by Terry George. The cast includes Jimmy Smits (Cyrus Garza), David Ramsay (Al Druzinsky), Ellen Woglam (Mereta Stockman), Carly Pope (Lucinda Pearl), and Jesse Bradford (Eddie Franks).

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Wednesday, September 15, 2010

Successor Liability Sinks Infomercial Tortfeasor

It’s difficult coming up with award-winning content every week. Perhaps that’s why we here at Abnormal Use have not won any awards. Not to be deterred, contributors at the blog scour the web for news and decisions that could provide the kernel of inspiration to set us on our way to winning the blog equivalent of the EGOT. (“30 Rock” premieres on September 23, with a live episode on October 14.) Today, we tread into the sensitive subject of infomercial products.

“In December 2005, James Bishop purchased a Ronco rotissiere oven which was designed, manufactured, marketed, and distributed by Ronco Corporation.” Kentucky Farm Bureau Mut. Ins. Co. v. Ronco Acquisition Corp., No. 2009-CA-001979-MR, 2010 WL 3515808 (Ky. Ct. App. Sept. 10, 2010) [PDF]. Unfortunately for the Bishops, their home burned completely in December 2007, and, even more unfortunately for the Bishops, Farm Bureau pursued a claim against Ronco, asserting that the Ronco oven caused the fire. I’m sure it’s awful having your home burn to ashes. It’s worse when everyone knows that you can’t say no to an infomercial.

Ronco asserts that its oven gives you access to fresh “healthful food [that] has never been easier to prepare.” The webpage also presents testimonials from people who have lost 20+ pounds after buying the oven. Since being a lawyer prevents me from believing anything that I see or hear, let me posit an explanation for this advertising. Consumer A drops $160 + S&H on an oven, and probably more with the purchase of the optional “Rib Basket,” which is “Great for 3 or 4 people.” Upon receipt of the oven, Consumer A realizes that in purchasing the oven, he has spent his food budget for the next two weeks and will be unable to actually buy anything to cook in the oven. By not eating for the next two weeks, Consumer A loses 20 lbs, entirely due to the fact that he purchased the oven. Adding to the absurdity is the notion that the oven’s 3-hour automatic timer allows the consumer to “spend less time cooking and have more time for your active lifestyle.” I’m just guessing that someone who is willing to sit and watch an infomercial, rather than do anything else, to the point where he would order the product, is probably not concerned about an active lifestyle. None of his friends would say that he is at the pinnacle of fitness. He may, in fact, have the nickname, “Rib Basket.”

Fortunately for us, this case has legs. While it may be hard to believe that the original Ronco Corp. went bankrupt, the successor corporation, Ronco Acquisition Corporation, assumed (according to this court) its potential liability in this case via an Asset Purchase Agreement. The Kentucky Court of Appeals then reversed the lower court’s grant of summary judgment to Ronco, and remanded the case. Hopefully, we can bring you more as the facts of this case develop. Until then, you may want to stay away from the oven and try the Pocket Fisherman instead.

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Tuesday, September 14, 2010

South Carolina Supreme Court Re-Issues Opinion in which it Reversed $18 Million Products Liability Verdict

We here at Abnormal Use previously reported on that on March 15, 2010 the South Carolina Supreme Court reversed an $18 million jury verdict against 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.E.2d —, 2010 WL 916109 (S.C. Mar. 15, 2010). Yesterday, the South Carolina Supreme Court “reissued” this opinion, substituting the most recent opinion in the place of the one cited above, after considering Plaintiffs’ and Ford’s motions to clarify and Plaintiffs’ motion for rehearing, all of which were filed after the original opinion. Watson v. Ford Motor Co., No. 26786 (S.C. Sept. 13, 2010).

The difference between the two opinions — the March 15, 2010 opinion and the September 13, 2010 opinion — is that the Court considered an additional issue on appeal presented by Ford. After the jury returned a verdict in favor of Plaintiffs at the trial of this matter, Ford filed post-trial motions, including one for judgment notwithstanding the verdict (“JNOV”). The trial court denied all of Ford’s post-trial motions and on then appeal, it appears that the Court did not consider whether the trial court erred in denying Ford’s JNOV motion. On Plaintiffs’ and Ford’s motions for reconsideration, the South Carolina Supreme Court considered this issue and found that the trial court did err in denying Ford’s JNOV motion.

The September 13, 2010 opinion included its previous analysis of all the issues in the March 15, 2010 opinion that found the trial court erred in qualifying Bill Williams as an expert on cruise control, qualifying Dr. Anderson as an expert on alternative designs, finding that Dr. Anderson’s theory regarding EMI as the cause of the sudden acceleration met the reliability requirements, and admitting evidence of similar incidents involving sudden acceleration in Explorers. In addition to the above, in the re-issued opinion, the Court found that because Plaintiffs’ experts did not present admissible evidence, they “failed to present a case for products liability” because there was no evidence that the cruise control system was defective or unreasonably dangerous. Further, the Court found that Plaintiffs “failed, as a matter of law, to prove an alternative feasible design with respect to the vehicle’s cruise control system” and were entitled to judgment notwithstanding the verdict. The South Carolina Supreme Court therefore found that as a result of all four of the trial court errors, it must reverse the jury’s verdict and enter judgment in favor of Ford.

Justice Costa M. Pleicones, who concurred in a separate opinion in the March 15, 2010 decision, now concurs in part and dissents in part in a separate opinion. Justice Pleicones concurred, as before, with the points made by the majority, merely suggesting that he would have reached the same result by a different route. However, in the September 13, 2010 opinion, Justice Pleicones dissents with the new part of the opinion that finds that Ford was entitled to JNOV, stating that there was evidence in the record to support the trial court’s denial of Ford’s JNOV motion. That evidence consisted of a colloquy between Dr. Anderson and Ford’s counsel in which Dr. Anderson opined that to a reasonable degree of engineering certainty that electrical interference was the cause of the sudden acceleration. Justice Pleicones stated that he would have reversed and remanded.

Finally, as noted by Brain Comer of South Carolina Products Liability Law Blog yesterday, the Court added an additional footnote in its discussion of whether the court erred in admitting Dr. Anderson’s testimony as to both an alternative feasible design and his EMI theory. This footnote cited to the recent opinion in which the Supreme Court adopted the risk-utility test as the exclusive test in products liability design cases — which we discussed here.

What, then, is the significance of this “re-issued” opinion? The prior opinion, as is this one, was instructive on the duties of the trial court as a gatekeeper of the admission of evidence and vividly illustrated how critically important competent expert testimony is to the prosecution of products liability cases. What the most recent opinion adds is that when the appellate court properly strips improper expert testimony from the case, they stand ready to not only remand for a new trial but also outright reverse a trial court’s decision and dismiss it.
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Monday, September 13, 2010

Risk-Utility Analysis Applied in Favor of Subrogee

On defendant manufacturer’s motion for summary judgment, the Middle District of Pennsylvania recently applied the risk-utility analysis, finding in favor of Plaintiff, Donegal Mutual Insurance Company (“Donegal“), subrogee of its insured’s claim that a electric clothes dryer manufactured by Electrolux North American (“Electrolux“) was defective. Donegal Mut. Ins. Co. v. Electrolux N. Am., 2010 WL 3169291 (M.D. Penn. Aug. 10, 2010). In November 2006, Donegal’s insured’s house caught fire from a dryer manufactured by Electrolux 10 years earlier due to its bearing assembly design. Donegal instituted a subrogation action against Electrolux, asserting causes of action for negligence, strict liability, and warranty/breach of contract. Electrolux moved for summary judgment on Donegal’s strict liability claim.

On a motion for summary judgment, a court in Pennsylvania first determines “whether the evidence is sufficient for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous.” Id. (citing Surace v. Caterpillar, Inc. , 111 F.3d 1039, 1044 (3d Cir. 1997). If the analysis favors the manufacturer, the product is not unreasonably dangerous and the the plaintiff’s claim does not go to a jury.

Judge Yvette Kane was meticulous in her analysis of each of the 7 factors of the risk-utility test, finding six of the seven factors weighted in favor of plaintiff and against the manufacturer. First, the parties conceded that the clothes dryer had a high utility to its users — only factor in favor of Electrolux. Second, the court was not able to evaluate the statistical rate of injury because Electrolux had not provided it with the number of units it sold similar to the one at issue. Therefore, the court found in favor of the plaintiff on the second factor due to the extent of injury a fire from a dryer could cause. Third, the court found that the bearing assembly design that caused the fire at issue could have been designed safer, finding in favor of plaintiff on this factor. Fourth, the court found in favor of plaintiff because Electrolux had already replaced the bearing assembly design with a different assembly in its newer models. Fifth, the court found that an ordinary user could not avoid the danger posed by an internal mechanism that could cause fires. Therefore, this factor went in favor of plaintiff. Sixth, similar to the fifth factor, the court found insufficient warning of the dangerous condition to an ordinary consumer. Finally, the court found the burden of spreading loss is better placed on the manufacturer.

As a result of the court’s analysis, it found that the risk of harm from the bearing assembly design outweighed its social utility and denied Electrolux’s motion for summary judgment. It appears that this type of test and analysis will often go in favor of plaintiff when the “defect” is an internal mechanism that could have been designed differently and the manufacturer gave no notice to the consumer. Further, the last element, spreading the loss, will almost always go in favor of an plaintiff versus manufacturer. Clearly, manufacturers moving for summary judgment in jurisdictions applying this test face a distinct disadvantage.
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Friday, September 10, 2010

Friday Links

We here at Abnormal Use believe that Superman may have an Eighth Amendment claim against Batman based on the conduct depicted above on the cover of World’s Finest #145, published way back in 1964. Of course, that assumes that the Man of Steel can establish that Batman is, for the purposes of his warden duties, a state actor. Can he do so?

“I’ve found, what my clerks do now, when they have interesting cases — They read blogs,” Anthony Kennedy, Associate Justice of the U.S. Supreme Court, August 19, 2010. (Hat tip: The Volokh Conspiracy). Now our hopes are up for a Supreme Court citation.

The Wall Street Journal Law Blog alerts us to the fact that the Burning Man music festival has its own barrister. What about Bonnaroo, though?

If you thought law school was insufficiently wearisome, you might investigate Texas Tech University’s new joint J.D./M.D. program, which the Tex Parte Blog profiled here.

Eric Goldman of the Technology & Marketing Law Blog ponders the Texas Attorney General’s probe of Google’s search engine practices.

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Thursday, September 9, 2010

Criminal Act Ruled Unforeseeable

Now that summer is unofficially over (at least here in South Carolina, where heat and humidity tend to stick around until October), this may not be the best time for an amusement park post. But the Tennessee Court of Appeals recently affirmed a grant of summary judgment worth looking at. Pictured above is an amusement park ride known as the Hawk, which spins around a fixed pivot point. The ride was manufactured by an Italian firm, Zamperla.

As detailed here, in 2004, June Carol Alexander fell to her death when the Hawk malfunctioned. The Hawk was installed by Zamperla at Rockin’ Raceway in 1998, and the last contact that Zamperla had with Rockin’ Raceway was in 2000. Truncating the facts, Rockin’ Raceway had hired a general manager, Stan Martin, who, for reasons not apparent, intentionally rewired the Hawk to bypass its safety systems, so that it would work even when the safety harnesses were not properly engaged. In July 2003, there was a close call with a patron, and in 2004, Ms. Alexander was killed.

In an apparent attempt to go after the deep pocket, the plaintiff’s estate dismissed Rockin’ Raceway and Mr. Martin without prejudice to pursue an action solely against Zamperla. The trial court granted Zamperla’s motion for summary judgment, and, in Alexander v. Zamperla, No. E2009-01049-COA-R3-CV, 2010 WL 3385141 (Tenn. Ct. App. August 27, 2010) [PDF], the court of appeals affirmed.

The plaintiffs’ basic argument, in negligence and strict liability, was that this criminal act was foreseeable, and that a design allowing such a criminal act to bypass the ride’s security was foreseeable. Based upon the expert discovery in the case, the court ruled that the plaintiffs’ had not shown any genuine issue of material fact. According to the plaintiffs’ expert, the ride’s safety system was state of the art when it was installed. In addition, no witness could recall ever seeing an incident like this, or anything about Mr. Martin’s background that would have given anyone probability to expect anything like this.

Zamperla is a reminder for manufacturers to affirmatively monitor customers and the news to the extent possible for potential misuses of products that plaintiffs’ attorneys will try to attack as reasonably foreseeable. With some better (more favorable or better thought out) expert discovery, the Alexander plaintiffs could possibly have gotten by summary judgment by introducing some evidence that 1) Martin’s conduct was foreseeable or 2) the Hawk’s design was defective by permitting such manipulation by Martin. Defense lawyers know what happens when a case with bad facts gets in front of a jury. In any event, even in these lean economic times, manufacturers would do well not to forget to monitor the news for “foreseeable” alterations of their products.

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Wednesday, September 8, 2010

Ferrari Issues Recall, Forbids Pinto References in Interoffice E-Mail

In the 1960s and 1970s, the Ford Pinto was dubbed “the barbecue that seats four.” The gas tank, located in an unfortunate location in the back of the car, had an even more unfortunate habit of rupturing, and exploding, if the car was rear ended.

Recent news reports suggest that the new Ferrari 458 Italia may have a similar flame-broiled propensity. According to Ferrari, the heat shield located in the wheel assembly of the car could become deformed, “bringing it too close to the exhaust system and igniting.”
The company has recalled the cars so that the glue adhering the heat shield can be replaced with metal fasteners, because if the adhesive ignites, it could “render the vehicle inoperable and possibly result in a crash,” according to the National Highway Traffic Safety Administration. Yes, we imagine so.
Which begs at least two questions–first, what possessed the designers of this 4.5 liter, 570-horsepower, $230,000 automobile to forgo the metal fasteners in the first place and use glue to adhere the heat shield to the car? And, second, can we choose a Pinto rental while the Ferrari is being fixed? At least the Pinto will be going far slower than 120 mph when it explodes.
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Tuesday, September 7, 2010

California Appellate Court Upholds Summary Judgment Where Expert Offers No Factual Basis for Opinion

The California Court of Appeals recently upheld summary judgment in favor of both defendants, an escalator manufacturer and Nordstrom department store, in a case where a shopper alleged she sustained injuries when an escalator stopped during a power outage. The court held that the opinions of the plaintiff’s motion engineering expert lacked adequate foundation. Bozzi v. Nordstrom, Inc., 111 Cal.Rptr.3d 910 (Cal. Ct. App. 2010).

The plaintiff was riding a Nordstrom escalator when an automobile accident outside the store caused an electrical service interruption, temporarily stopping power inside the store. The lights went out and the escalator stopped. The plaintiff had been holding on to one or both of the handrails, but alleged she was injured when her left foot moved down one step on the escalator. She did not fall. The power was out for approximately one minute before it was restored, at which time the lights came back on, the escalator descended to the first floor, and the plaintiff walked out of the store.

The plainitff sued both parties for negligence and failure to warn and included a strict liability action against the escalator manufacturer. It was the plaintiff’s theory that the defendants should have supplied an alternate power source for the escalator or otherwise have designed and maintained it such that it would have slowed to a gradual stop when the power went out. In support of her theory and in an effort to withstand summary judgment, the plaintiff proffered a motion engineering expert, who opined that there was “certain technology” available at the time of the escalator’s placement in 1985 that would have prevented the abrupt stop of which the plaintiff complained. It was his opinion that the fact that the escalator came to a jolting stop proved that there was a defect, because a properly designed and maintained escalator should not stop abruptly.

Although both the trial and appellate courts held that the plaintiff’s expert was properly qualified, they excluded as speculative and without foundation his conclusion that the escalator’s failure to come to rest in a power outage constituted faulty design or maintanence. An important factor in the courts’ conclusion was that the proffered expert had never seen, ridden or inspected the escalator. The appellate court held that he “relied on nothing more than syllogistic reasoning to conclude that if an escalator stops abruptly, it must have been defectively designed or maintained.”

An opinion is, according to the court, “only as good as the facts and reasoning on which it is based.” Because this expert failed state any facts to support his opinion, it was not appropriate for summary judgment analysis. This case is another illustration of an important defense victory where a plaintiff seeks to create issues of fact by offering unsubstantiated expert opinions.
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Monday, September 6, 2010

Happy Labor Day

Happy Labor Day to all! As a public service to you, our dear readers, we provide this link from the Department of Labor about the history of Labor Day, as well as the following quote:

The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pay tribute on Labor Day to the creator of so much of the nation’s strength, freedom, and leadership — the American worker.

We here at Abnormal Use will celebrate today Ayn Rand-style, by generating revenue and looking for John Galt, although it’s possible we might cut out early and get ready for the evening’s revelry centered around the start of college football. In any event, we urge you, today of all days, to consider the genesis of the day and enjoy the fruits of your labor.

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Friday, September 3, 2010

Friday Links

Steven F. Coronado at the DRI Blog has this piece about the perils of jurors updating their Facebook statuses to reflect their thoughts on ongoing trials. If you’re on a juror, it’s probably best not to tweet that you can’t wait to render a guilty verdict.

Okay, now this is, well, awesome. Terry Tottenham, the President of the State Bar of Texas, quotes Bruce Springsteen lyrics not once, but twice, in his column this month in the Texas Bar Journal. Can you guess which two songs he quoted? See here for the column.

We welcome the newly launched South Carolina Tax Credit Blog to our state’s legal blogosphere. (Hat tip: South Carolina Business Law Blog).

We sometimes find ourselves nostalgic for law school, and then we realize what we must be thinking. A former teacher and now a brand new law school student, the author of the blog Tanny’s News recounts what happened last week to a student who was late to class: “One of my esteemed colleagues was late the second day of class, didn’t know the answers when called on the third day of class, and was late again the fourth day of class. In real life, our clients suffer the consequences of our mistakes. So, our whole class, except this student, has to spend the weekend writing a 5-6 page memo on the consequences of lawyers being late to court. As a teacher, I marvel at the brilliance of this plan. I used to do similar things to my students when 2/3 of them were involved in something and I couldn’t pick out which ones were innocent. I always felt badly for the innocent ones, but now I can truly understand how they must have felt.”

After a 21 month absence from the blogosphere, the South Carolina Bid Protests Blog triumphantly returns with a new post. Welcome back!

The Mac Lawyer has this post entitled “5 Essential iPad Apps for Students.” This makes us feel very old, as our only study aids were dusty old copies of Emmanuel outlines.

Here’s the first paragraph of the abstract from Lucille A. Jewel’s article, “I Can Has Lawyer? The Conflict Between the Participatory Culture of the Internet and the Legal Profession,” which is thought provoking: “The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go “viral,” in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who show hostility toward criminal defense attorneys. ” (Hat tip: Media Law Prof Blog).

We couldn’t resist sharing this gem at the My Legal Fiction blog, entitled “Woody Allen Jokes As Applied To Law School.” (Hat Tip: Legal Underground).

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