Happy Halloween

We here at Abnormal Use make a rare weekend appearance today to wish all of you a safe and happy Halloween. We trust that you will meet your quota of candy consumption and scary movie watching. We’re still debating our costume, but we’ve narrowed it down to Romero-esque zombie, Lugosi era vampire, or big time Plaintiff’s attorney. Your thoughts?

The image above, of course is the movie poster from the 1978 horror classic, Halloween, directed by John Carpenter and starring Jamie Lee Curtis. We think that Hollywood may have remade this movie sometime recently, but we can’t be bothered to keep up with remakes.

Scary Links

In the spirit of Halloween, we present to you the comic book cover above, Adventure Comics #294, published way back in 1962 (which you might have surmised from the references to JFK, Marilyn Monroe, and Jerry Lewis, all of whom are apparently familiar to Bizarro). With a title like “The Halloween Pranks of the Bizarro Supermen,” though, how can you go wrong?

Rather than link a series of frightfully normal legal news stories, today, we here at Abnormal Use thought we would explore something a bit more apprehension inducing and suited to the holiday at hand. So, to celebrate the occasion, we asked two of our contributors (and our non-blogger associate Nick Farr) to share their thoughts on the movies they fear most. (Specifically excluded are movies about associates attempting to meet billable quotas. We won’t count The Paper Chase, either, although we wonder if anyone still watches that movie, anyway).

Nick Farr: Before I saw The Exorcist as a young teenager, I thought I was pretty tough. The Shining was boring. It” made me laugh. Halloween just left me with a childhood crush on Jamie Lee Curtis. There was something about The Exorcist, however, that affected me in a way that Betsy Palmer (a/k/a Mrs. Pamela Voorhees) yielding a machete simply could not. Maybe if Michael Myers would have spun his head around backwards, Halloween would have been more to me than a breakthrough performance for another Hollywood starlet. Maybe if Pennywise the Clown would have crab-walked down a flight of stairs, I would not have thought of “It” as an adult-sized Bozo. Even today, when I reminisce about Regan walking into that party and innocently proclaiming, “You’re going to die up there,” chills run down my spine, and those feelings I felt seventeen years ago are resurrected. Tonight, I better sleep with the holy water.

Jim Dedman: The scariest movie I’ve seen would be, of course, Stanley Kubrick’s The Shining, although that is not the best story I have about a fear-filled work of cinema. In July of 1999, I was a first quarter law student at Baylor University in Waco, Texas. That month, I faced one of my first – and most dreaded – finals: Civil Procedure. (That frightful test, written and administered by the now retired Professor Trail, was scary enough.). After enduring that test, I took the rest of the day off, drove to Austin, and saw The Blair Witch Project, then out in theatres for only a few days, at the now defunct Dobie Theatre. Shot in a point of view fashion, the film profiled the misadventures of a group of students who venture out into the Maryland woods to explore the Blair Witch myth. The now defunct Dobie was a small, indie venue, and the particular theatre we were in had less than hundred seats. Imagine seeing that movie in such a place before all the hype and newspaper coverage ruined the original guerrilla style marketing of the film. At that time, there were still people who somehow believe the “found footage” was real. Of course, at the end of the day, I can’t say which was more horrifying, the film or the final.

Kevin Couch: I thought long and hard about the movie that terrifies me the most, and I settled on 1985’s Follow that Bird, a film adaptation of the beloved children series, “Sesame Street.” In the film, Big Bird runs away from home, a much madness ensues. Although you may scoff initially, I ask you, what is not terrifying about human-puppet interaction, especially when Miss Finch, a social worker puppet with the nefarious sounding Feathered Friends Society, is given the power to alter the human-puppet relationships foundational to all that is “Sesame Street”? In addition, given the films Big Brother feel that the social worker knows better than the (albeit nontraditional) family, I’m surprised that the film wasn’t re-released for its twenty-fifth anniversary this summer and run at Tea Party rallies. After all, the real horror of the film (again, aside from the human-puppet interaction) comes after the credits. Who really believes that the sinister Miss Finch is content to let Big Bird stay at Sesame Street? No one. She will come like a thief in the night and remove Big Bird from his nest on the basis that it is in his best interest, and Gordon and Maria will be left only with sorrowful years of fighting the system in the family courts. If a nine-foot yellow bird puppet is not safe from government intrusion, how safe do you think you are? And you thought Nosferatu was scary?

And that dear readers, is all we here at Abnormal Use have to say about scary movies. Of course, the rumor is that this very afternoon, the South Carolina Bar will release the names of those who passed this past summer’s bar exam. What could be scarier than the wait for that?

Toasted Skin Syndrome: The Unreasonably Dangerous Laptop

The Associated Press recently reported that if you use your laptop for too long while it sits on your lap, you could develop “toasted skin syndrome,” also known as erythema ab igne. This is a gross-sounding skin condition characterized by darkening or discoloration caused by long term exposure to relatively moderate heat levels – say from a heating pad, or a hot water bottle.

If true, this has the potential for unpleasantness.

According to the AP, there have been a handful of laptop related cases of this condition since 2007, including one law student whose laptop registered a balmy 125 degrees when tested. The story reported that the law student sat her laptop on her legs around six hours a day. Ouch. As if we needed another way for law school to be an uncomfortable experience.

But let’s think about this analytically. The problem is easily avoided by putting the computer on a desk, or by putting something between it and your legs. From a legal standpoint, though, Dell, Apple, and other manufacturers may have some challenges – some semantic in nature – in the defense of these claims. First, computers – no matter the kind – get hot. They don’t get as hot as they in long ago days, but 125 degrees is significant heat. Second, it’s called a “laptop.” They may have a hard time arguing that these people aren’t using the computers as they were intended when the user, in fact, places the computer on his or her lap. Sorry, but it’s true.
Still, like cases involving hot coffee or flying Wii controllers, we’re having a hard time getting past common sense when we think about potential lawsuits–if the laptop is sitting on your lap for six hours a day and it’s getting hot, you might want to think about moving it. It is an electronic device that generates heat, after all. In any event, we’ll keep watching this issue and post about any reported decisions.

Happy Birthday, Drug and Device Law Blog!

We here at Abnormal Use wish the authors of the Drug and Device Law blog a happy fourth birthday. That site’s first post, its “Disclaimer and Terms of Use,” went live on Saturday, October 28, 2006 (at 11:45 p.m. no less!). The first substantive posts would begin a few weeks later in November 2006, with two posts on November 15, 2006, “The Presumption Against Preemption” and “MDLS in 2006. ” Although its authors have unofficially declared October 30 to be the site’s birthday, we recognize it as today, the anniversary of the inaugural post. We’re sticklers.

The site is run by James M. Beck, Stephen McConnell, Will Sachse, and David Walk, all of the Dechert LLP firm. Mark Hermann, a founder and contributor, retired from the enterprise in December of 2009, having been there from the very beginning four years ago today.

When we here first began to consider the creation of a law blog, we looked to the Drug and Device Law blog (along with Walter Olson and Ted Frank’s Overlawyered blog) for inspiration and ideas. Since that time, we’ve also carefully considered the advice that Hermann offered in his recent article, “Memoirs of a Blogger,” about the perils of being a lawyer blogger.

After ten months of doing this ourselves, we now know that maintaining a law blog is no small feat. But we must congratulate the authors of Drug and Device Law not just for their endurance, but their ability to provide consistent and thorough analysis of the litigation they cover. If you’re interested in products liability generally – and if you’re reading our site, you probably are – you really should be checking out the Drug and Device Law site each day, as well.

So, without further ado, we wish them a happy fourth birthday.

For further reading, check out these philosophical posts they have done on their past blog birthdays:

El lagarto es peligroso, but not compensable

We’ve all come to expect a certain level of cost-cutting with airlines. With that in mind, we offer our thanks to Gothamist, who provides this story about Plaintiff Monserrate Luna, who has appealed an order granting summary judgment against her in last year’s Luna v. American Airlines, 676 F. Supp. 2d 192 (S.D.N.Y. 2009). Ms. Luna seeks to protect the quality of airline food for all of us via a tort suit with a $15 million demand. Her complaint – she orally palpated “‘a chunk of lizard’ that was mixed in with her food.” Earlier this year, Ms. Luna appealed the federal district court’s grant of summary judgment, and the appeal is now pending before the Second Circuit. If Ms. Luna wanted a viable lawsuit, she should have just swabbed a few areas of the plane and cultured the innumerable diseases that live there. Nevertheless, Ms. Luna decided that food safety is a greater priority. Just ask Roger Murdock.

The lawsuit is what you would expect. Ms. Luna placed some of the chicken meal in her mouth, found that she could not chew or swallow part of it, and removed it from her mouth. Her five-year-old-son remarked that the removed portion looked like a small animal, surely along the lines of the how this pancake bears the images of Mary and Jesus (or perhaps a “bedouin and Santa Claus”). Ms. Luna then placed the reptilian regurgitant in a napkin to more fully discuss the matter with a crew member. There was some disagreement whether the partially masticated mess was a lizard or a feather. Nevertheless, the crew member offered to wrap the item for Luna so that she could preserve it and make a formal complaint. Luna apparently refused, and the crew trashed the lizard. Surprisingly, Luna claimed diarrhea and emotional distress.

You can read the rest of the summary judgment order yourself. I will note that valuable resources of the federal judiciary were occupied hearing the motions and writing the 41 page order in this case. Moreover, there was a fair amount of discovery taken in this case, with the plaintiff deposed not once but twice. Perhaps the airline’s attorney could not believe what he heard the first time. There was also some talk of Luna amending her complaint to add sasquatch fur as a second foreign object, and the airline was forced to conduct discovery on the existence of Bigfoot.

I now fear that someday I may be writing on discovery relating to sasquatch. After all, if Luna had alleged that she had sasquatch fur in her food (and had retained the fur), wouldn’t that be a cognizable claim? My hope is that the sasquatch case is filed in South Carolina, and I get to be a part of that discovery.

Abnormal Interviews: Law Professor David G. Owen

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor David G. Owen of the University of South Carolina School of Law. Renowned for his scholarship in products liability law, Professor Owen co-authored the products liability treatise, Madden & Owen on Products Liability (with S. Madden and M. Davis). The interview is as follows:

1. What is the most significant new development in products liability in recent years?

The most significant development in products liability doctrine is the continuing decline of “strict” products liability. The rise of strict liability occasioned by Judge Traynor’s decision in Greenman v. Yuba Power Products, Inc. in California in 1963 and the ALI’s adoption of § 402A of the Restatement (2d) of Torts in 1964 (published in 1965) fueled the spectacular development of modern products liability law. The idea was that the law demands safe products, and manufacturers and other sellers of defective products should pay for accidents such products cause.

Beginning in the mid-1980s, however, courts began to rethink the idea of strict liability as they began to parse the concept of “defect” according to whether a product danger was a manufacturing flaw, a danger in design, or a danger not adequately warned about. And as the law developed, spurred by the Restatement (3d) of Torts: Products Liability during the 1990s, it became more and more clear that the law would tolerate true “strict” liability only in cases of manufacturing flaws. In state after state, negligence principles (and in some states negligence doctrine) reclaimed center place in judging both design and warning safety, with design safety increasingly turning on the availability of a feasible alternative design the manufacturer unreasonably failed to adopt, and warning safety increasingly turning on the foreseeability of a danger about which the manufacturer unreasonably failed to warn.

This development—away from strict liability and back toward negligence principles—continues to spread across the land, sometimes with a state’s adoption of a defense to “strict” liability based on “state of the art,” and other times with a court’s or legislature’s switch from a design defect liability test based on consumer safety expectations to a risk-utility test based on a manufacturer’s failure to adopt a reasonable design precaution. As for this latter switch, the most recent example is the South Carolina Supreme Court decision in Branham v. Ford Motor Co., just a couple months ago.

2. What rule of modern products liability jurisprudence is the most outdated? How would you change it and why?

Putting aside the decline of “strict” liability in design and warning cases just discussed, products liability law has a number of secondary rules that deserve reconsideration. Near the top of this list is the “learned intermediary doctrine,” applicable in prescription drug cases. Normally, a manufacturer has a duty to provide warnings directly to persons who need the warnings the most, usually end users. But the widely applied learned intermediary doctrine provides an exception to this duty rule for prescription drugs, based on the belief that doctors—learned intermediaries situated between drug manufacturers and patients—can best process drug warnings and decide when and how to pass along to patients those that are most relevant to particular patients. So, this rule provides that manufacturers only have to warn doctors about dangers in their drugs, and that they have no duty to provide warnings directly to the patients who will consumer their drugs.

In this day of mass merchandising of prescription drugs in the media, where drug manufacturers have chosen to jump over doctors and market their drugs directly to patients, it seems that manufacturers logically should have a corresponding duty to supply warnings of dangers directly to patients, too. Courts in New Jersey and West Virginia have so held in recent years, and I predict that other courts will reasonably follow suit—and abandon the learned intermediary doctrine—in the years ahead. Moreover, I would like Congress or the FDA to require manufacturers to provide patient warning inserts with all prescription drugs, written by public health professionals and reviewed by the FDA to assure effective translation of complex scientific medical information to a comprehensible form for ordinary patients. Finally, I would abolish the pharmacist’s immunity from liability for failing to warn and require pharmacists, as well as manufacturers, to provide patient warning sheets with all prescription drugs they sell.

3. What is the biggest challenge for lawyers practicing products liability today? What advice would you give?

The biggest challenge for products liability lawyers today concerns the use and abuse of expert witnesses and the lessons of Daubert v. Merrell Dow Pharmaceuticals, decided by the Supreme Court in 1993. The purpose of Daubert was to rid courtrooms of “junk science”— questionable scientific testimony often allowed into evidence by judges who felt uncomfortable evaluating the reliability of such testimony, evaluations they traditionally could avoid by uttering the mantra that any weaknesses in such testimony went merely to its weight, not its admissibility. Interpreting Federal Rule of Evidence 702, Daubert ruled that modern judges now must serve as scientific “gatekeepers,” keeping out scientific testimony that is not “reliable.” Now applied to expert testimony on technology as well as science, Daubert spans all products liability litigation in federal court; and its principles are rapidly spreading to state court litigation, too.

After Daubert, the challenge for products liability lawyers—many of whom went to law school because of an aversion for science and technology—is to realize that they can no longer leave science (and technology) to their experts, and that the lawyers themselves now have to bite the bullet and learn the science their experts preach. In addition, lawyers now need to “Daubertize” their expert witnesses by requiring their witnesses to rigorously apply reliable principles of science and technology to their research and testimony in a products liability case, and to clearly explain their reasoning—on how a product was defective, on how the defect caused the plaintiff’s accident/illness, and precisely how the product practicably could have been made differently to prevent the accident/illness.

Lawyers, in short, now need to know their science and technology in a case well enough to guide their own experts to be able to explain how they arrived at their conclusions, step by step, so that the expert’s reasoning process is transparent and, therefore, subject to effective cross examination by opposing counsel. This is no small task, and lawyers will continue to be challenged fresh in every new products liability case with learning the scientific or technological details of the “how” and “why” a particular product failed. This is a challenge that has made products liability litigation more difficult and more expensive, with the result that plaintiff’s lawyers are trying fewer products liability cases today than they did a couple decades in the past. By the same token, however, plaintiffs today are preparing themselves and their experts more thoroughly than in olden days, with the result that they are winning a higher percentage of cases, and receiving higher verdicts, than before Daubert marched across the land.

BIOGRAPHY: David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina where he teaches courses and seminars on Tort Law, Tort Theory, and Products Liability. Prior to teaching, Professor Owen received degrees in economics (Wharton) and law from the University of Pennsylvania, was law clerk for Chief Justice Kenison of New Hampshire, and practiced law at Holland & Hart in Denver. In addition to numerous journal articles, Professor Owen has authored, co-authored, and edited various books, including a hornbook/treatise, Products Liability Law; Products Liability in a Nutshell; the leading casebook, Products Liability and Safety (with J. Montgomery and M. Davis); a products liability treatise, Madden & Owen on Products Liability (with S. Madden and M. Davis); a theoretical work, Philosophical Foundations of Tort Law; and Prosser & Keeton on Tort Law (with W. Prosser, P. Keeton, R. Keeton, and D. Dobbs). He is an Adviser to the American Law Institute on the Restatement (Third) of Torts, and he was the ALI’s Editorial Adviser for the Restatement of Products Liability.

Judgment in Favor of Zyprexa Manufacturer Upheld in at least Two Matters

On October 4, 2010, Second Circuit Judges, John M. Walker, Jr., Jose A. Cabranes, and Chester J. Straub, upheld the decisions of the Eastern District Court of New York in two lawsuits filed against Eli Lilly & Company, manufacturer of Zyprexa. Belcher v. Eli Lilly & Co., No. 09-5004-CV, 2010 WL 3853003 (2d Cir. Oct. 4, 2010) and Gove v. Eli Lilly & Co., No. 10-216-CV, 2010 WL 3852840 (2d Cir. Oct. 4, 2010). Lawsuits against Eli Lilly & Company (“Eli Lilly”) began to be filed around the country by plaintiffs alleging that its anti-psychotic medication, Zyprexa, caused them to suffer from diabetes. Plaintiffs asserted that if Eli Lilly had properly warned of the drug’s dangers, they would have never been prescribed the drug and not developed diabetes. These similar lawsuits around the country were transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. The Belcher and Gove matters discussed here were both decided in favor of Eli Lilly on motions for summary judgment. Thereafter, these appeals were filed.

The Belcher matter was decided in favor of Eli Lilly solely on the ground that her claim was barred by the statute of limitations. Applying California’s discovery rule and its two year statute of limitations for product liability and personal injury actions, the Second Circuit upheld the decision of the Eastern District Court of New York. California was the applicable law since the matter was filed in California and the events giving rise the action occurred there. The Second Circuit found that the statute of limitations began to run in October 2001 when a physician who knew the association between the drug and increased weight gain and blood glucose levels prescribed Zyprexa. Her claim was barred as it was filed in February 2006. The decision of the District Court dismissing the action was upheld.

The Gove matter was also decided in favor of Eli Lilly on the ground that her claim was barred the by the statute of limitations as well as on the ground that Gove had failed to establish that Eli Lilly’s failure to warn was the proximate cause of her injuries. The Second Circuit upheld the District Court’s decision merely on the ground that Gove failed to establish proximate cause. The applicable law in this matter was Arizona’s substantive law because this matter was filed in Arizona and the events giving rise the action occurred there. The Second Circuit found that Arizona recognized the learned intermediary doctrine but applied the “heeding presumption” by shifting the burden of production to the manufacturer. If the manufacturer meets this burden, the burden shifts to plaintiff to show proximate cause. Applying these principles, the Second Circuit found Eli Lilly’s presumption satisfied by evidence that Gove’s nurse practitioner that prescribed the drug testified that an alternative warning would not have affected her prescribing habits. Further, because Gove’s practitioners were aware of the risks and would not have changed their treatment decisions, the Second Circuit found that Gove failed to establish proximate cause. The Court upheld the decision of the District Court.

Friday Links

The comic book cover above is that of Tales of the Unexpected #16, published way back in August of 1957. The “Interplanetary Line-Up” is comprised, apparently, of several costumed party-goers and one actual extraterrestrial, all of whom have been placed in the standard line-up at the police station. It seems that a much easier procedure would have been to simply ask the humans to remove their costumes at the party, thereby utilizing the process of elimination to flush out the alien interloper. Oh, well.

Through this post at the ContractsProf Blog, we are alerted to this open letter from a Boston College 3L seeking to “leave law school, without a degree, at the end of this semester” in exchange for a “full refund of the tuition [the student] paid over the last two and a half years.” The student reasons that this will benefit both parties:

This will benefit both of us: on the one hand, I will be free to return to the teaching career I left to come here. I’ll be able to provide for my family without the crushing weight of my law school loans. On the other hand, this will help BC Law go up in the rankings, since you will not have to report my unemployment at graduation to US News.

The question: If this attempt at contract modification fails, will the student assert that BC’s law school education is unreasonably dangerous and defective? To be determined.

Cynthia Arends of the DRI Blog has this post, entitled “Is 500 Times the Heat of a Jalapeno too Hot?,” which profiles a complaint filed by a couple in Tennessee who allege that Blair’s Mega Death Hot Sauce, served to their son at a Steak-N-Shake restaurant, is “deleterious” and too hot to handle. As Arends notes, surely the fact that the phrase “Mega Death” is in the product name counts for something. (Of course, as litigious as our nation now is, this may prompt a copyright suit by the rock band Megadeth.). Whatever the case, we’ll be keeping our eyes on this case.

Quote of the Day I: “Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.” In re J.J., No. D055603, 2010 WL 4033633, at *2 (Cal. Ct. App. Oct. 15, 2010) (striking down probation restrictions that would have prevented 15 year old from using the Internet and social media) (citations omitted) (Hat tip: Technology and Marketing Law Blog).

Quote of the Day II: “I want to make it clear that I’m not after anybody. I don’t want any money. This is not the Lotto. I don’t want to make anybody look bad. I’m just thinking about the next person who comes along and buys a bag of frozen vegetables,” said Tom Hoffman, quoted in this piece in the Lansing State Journal, regarding his finding a frozen frog in his bag of frozen vegetables he had purchased. Somewhere, an attorney, perhaps an in-house counsel, has already printed this article and placed it in a folder labeled “Impeachment.” (Hat Tip: The Consumerist).

The Augusta Chronicle ran a fascinating piece by the Associated Press on this week’s oral argument before the South Carolina Supreme Court regarding the legality of casual poker games. The big news was that the State apparently conceded that under South Carolina’s ancient law banning games of cards or dice, such casual games are permitted. Still no word on whether Monopoly is legal, though. (The Legal Blog Watch has its own post on this matter here.).

The South Carolina Bar’s Law Related Education Committee is seeking attorney judges for their upcoming mock trial competitions. If you’re interested in judging middle or high school mock lawyers in November, February, or March here in South Carolina, please contact Cynthia Cothran at (803) 252-5139 with all deliberate speed.

Finally, happy thirtieth anniversary to Backstreets, the official fan magazine of Bruce Springsteen, the first issue of which was first distributed on October 24, 1980. (Incidentally, this week also marks the thirtieth anniversary of Bruce Springsteen’s The River album, released originally on October 17, 1980).

Legal Lessons from The Magnificent Seven (1960) on its Fiftieth Anniversary

[Editor’s Note: This coming Saturday, October 23, 2010, marks the fiftieth anniversary of the release of the classic Western movie, The Magnificent Seven, which starred Yul Brynner, Robert Vaughn, Charles Bronson, James Coburn, and of course, Steve McQueen. Directed by John Sturges, the film was based upon the 1954 Japanese film, Seven Samurai, directed by Akira Kurosawa. To celebrate this occasion, we here at Abnormal Use asked our boss – senior partner Mills Gallivan – for his thoughts on the film and lessons we can learn from it as lawyers.]

“If God didn’t want them sheared, he would not have made them sheep.”

If you are familiar with this quote then you are probably a fan of Westerns and, in particular, The Magnificent Seven. This cult movie is on most, if not all lists of the Top Ten Westerns ever made. This week marks the fiftieth anniversary of the film’s American release. The movie was originally released in Europe and was so popular that it was re-released in America and immediately became a huge hit and financial success. The musical score for the movie was composed by Elmer Bernstein and nominated for an Academy Award in 1961. The theme song is stirring and has been used in numerous other movies, musical compositions and ads, including the old Marlboro commercials. Anyone over the age of fifty would immediately recognize it.

The movie is inspiring as you watch a small band of dedicated professional gunmen take on huge odds in the defense of a hapless Mexican village. I recently read about a college football coach who shows the movie to fire up his team the night before each game. Throughout his career, he has now shown it over 500 times to his various teams.

The quote above is from Calvera, the bandit who regularly pillages a small village in Mexico. He is speaking to the members of the Magnificent Seven, and trying to talk them out of defending the villagers, who he sees as his sheep. His is a great rationale if you are a bully and a thief! As you might expect, this argument does not persuade the seven professionals who have taken the job on a matter of principle. Consider the following exchange between Chris (Yul Brynner) and Vin (Steve McQueen), the two leaders, about their commitment:

Chris: You forget one thing. We took a contract.
Vin: It’s sure not the kind any court would enforce.
Chris: That’s just the kind you’ve got to keep.

So what does this have to do with products liability law?

Oftentimes, corporate defendants in products cases feel much like the villagers in the movie, victimized, bullied and about to be sheared. Certainly, the villagers are much more vulnerable and sympathetic than a corporate defendant. However, the often perceived motivation of the plaintiff’s trial bar is sometimes very similar to that of the bandit Calvera. This motivation can be greed, which is fueled by money and power. One has only to look at the tragic demise of the now infamous trial lawyer Dickie Scruggs to understand that for some plaintiff’s lawyers, justice is not the ultimate goal. Scruggs plead guilty to mail fraud and bribery and when Judge Glen Davidson imposed his sentence he quoted William Barclay, a Scottish philosopher, who said, “The Romans had a proverb that money was like sea water. The more you drink the thirstier you become.”

So what makes The Magnificent Seven magnificent? I like to think it is their courage in the face of insurmountable odds and their unwillingness to cut and run when given the opportunity. One definition of magnificent is noble, and these hired guns see their salvation in taking up the noble defense of the villagers. They are determined that Calvera will not shear the villagers again without paying a heavy price. The bandit releases them after the first skirmish, thinking that they really are not willing to die for peasants who can not pay them and who will not fight for themselves. The concept of a noble cause also resonates with good defense trial lawyers; as a group we believe in our clients’ positions, seek justice and will not be intimidated by an adversary or judicial hellhole. Calvera underestimated the commitment of the men he faced and it was a huge mistake.

Shortly after being released and ordered back across the border to Texas, James Coburn’s character Britt foretells the final showdown when he says: “Nobody throws me my own guns and says run. Nobody!”

A capable plaintiff’s lawyer will not underestimate the defense legal team, or at least, not more than once. So when you are in a battle to defend your products and keep your company from being sheared, where do you turn? After fifty years, six of the members of the Magnificent Seven are dead, and the lone survivor Robert Vaughn (Lee) is an actor not a lawyer.

When it is all on the line, you need defense trial attorneys with consummate skill, integrity, courage and a willingness to fight to the last barricade. Lawyers who know that ultimately justice can and will prevail and who are not afraid to say to the Calveras of the world:

Calvera: Somehow I don’t think you’ve solved my problem.
Chris: Solving your problems is not our line.

When Technology Outpaces the Law: The Driverless Car Problem

Fact: Technology is moving faster than many of us can fathom. This is, of course, news to no one. The laptop I bought just one year ago is now a “dinosaur,” and I could probably buy a brand new one with the same specs for roughly half of what I paid last year.

Fact: The law has not kept up with the quick pace of technology. This is also news to no one. Privacy concepts have been turned on their heads by the Facebook/MySpace/Twitter social media explosion. Entirely new concepts of law have also developed over the past few years; “e-discovery” has raised the stakes – and the cost – of litigation dramatically.

The ABA Journal provided another example of technology outpacing law in its newsletter last week: the driverless car, citing a recent New York Times article on the same subject. Apparently, Google has developed technology that can drive a car with minimal human input. In fact, the only accident that occurred during testing of the vehicle was caused by human, not car, error. This is a huge jump even from the Lexus LS460 that can park itself.

As both the ABA Journal and the New York Times point out, the obvious question is this: Who is liable for an accident caused by a car that is driving itself – the person sitting in the driver’s seat of the car who isn’t actually driving, or the manufacturer of the driverless car itself?

We don’t have an answer yet, because it’s all hypothetical at this point, and “the law” hates hypotheticals. But my point is this: Do we really want “the law” to keep pace with technology?

Technology always asks “Can we?”, but in my experience, sometimes fails to consider the better question of “Should we?” For my part, I’m not sure a driverless car is a good idea. Thus, I disagree with Kenneth Anderson of The Volokh Conspiracy, who recently opined that “[t]he idea of robotic cars that drive themselves is a good one, I think, and one whose time is rapidly coming.” But the law is different. It must always ask, what “should” the law be? And if that means that it moves slowly, even glacially, while it considers the answer to that question in a new situation, then that’s okay. Or maybe I’m just old [fashioned].

For my part, I’m still waiting for someone to sell me my own personal Rosie.