What is "Products Liability," Anyway?

This is the question that the Colorado Court of Appeals tried to answer in its recent decision, Carter v. Brighton Ford, Inc., No. 09CA1966, 2010 WL 4361379 (Colo. Ct. App. September 30, 2010). The plaintiff had bought what the Court described as a “high performance automobile” — a Ford Mustang — which contained components manufactured by Saleen, Inc., a company that had a joint manufacturing agreement with Ford. Immediately after buying this fine vehicle, the plaintiff purportedly experienced numerous problems with it.
While we recognize that Ford has come a long way in recent years, there is great debate amongst the contributors here at Abnormal Use. Is the Mustang a “high performance automobile,” as the Court suggests? But, we digress. Judge for yourself:

The plaintiff sued Ford for breach of implied warranty of merchantability and revocation of acceptance under the Colorado Uniform Commercial Code, sections 4-2-314 and 4-2-608, C.R.S. 2010, respectively, as well as claims against Ford and Saleen for violation of the Colorado Lemon Law, revocation, and breach of express and implied warranties. Ford was dismissed after the mechanical defects in the vehicle were determined to be attributable to modifications performed by Saleen. Saleen subsequently ceased operations, which defeated the plaintiff’s claims against Saleen for express warranty on Saleen components. Only the plaintiff’s claims against Ford for revocation and breach of implied warranty remained.
Ford moved for summary judgment, arguing that the plaintiff’s claims were product liability claims and therefore barred by the “innocent seller” statute. The trial court agreed and dismissed his remaining claims. The plaintiff appealed.

The Court of Appeals framed the issue before it as follows:

We are called upon to decide whether the trial court erred in ruling that a product liability action may be based upon a claim for breach of an implied warranty of merchantability and a claim for revocation of acceptance where the product was defective and the only damage suffered by the buyer was the economic loss of the product itself.

After analyzing the Colorado “innocent seller” statute, which bars a product liability suit against a seller unless the the seller is also the manufacturer. The statute does not prevent “other actions” against sellers. The trial court had held that the action against Ford was indeed a products liability action, since causes of action for breach of warranty are based on products liability law.
The court of appeals reversed, holding that “contract claims which seek only economic loss for a defective product without collateral damage or risk of harm to others do not constitute product liability actions.”
The value of the court’s decision itself, in my opinion, is not the decision itself, but the history of products liability law that the court recites in coming to its decision. The court does an excellent job of tracking the development of products liability through the strange marriage of contract and tort law. The court also gives concise summaries of the economic loss rule and the innocent seller doctrines, which several other jurisdictions follow as well. As a result, this decision is worth a read.

Abnormal Interviews: Law Professor Stephen Spitz

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 Stephen A. Spitz of the Charleston School of Law in Charleston, South Carolina. The interview is as follows:

1. In your article, “SUEM, Spitz’s Ultimate Equitable Maxim: In Equity, Good Guys Should Win and Bad Guys Should Lose,” you identify nine equitable principles utilized by South Carolina courts. Which of those maxims stand out in your mind as an especially important consideration for courts?

Maxims can be divided into two broad categories. The first category are those maxims that suggest guidance for courts in the absence of a clear legal answer. (For example, the maxim that equity will not suffer a wrong to be without some remedy, suggests to a Court that any real wrong should be addressed). A second category of maxims directs the Court to look closely at the litigant’s conduct. (For example, equitable relief is denied to those with “unclean hands.”) Together, these two general categories suggest that equitable principles and equitable conduct are relevant to judgments in many types of cases.

2. What is the most significant opinion (South Carolina or otherwise) to come out in the past several years that called for equitable intervention? Why?

Although I can’t necessarily reduce an answer to a single opinion, I have briefly discussed three recent cases that suggest that sometimes equity can play a meaningful role in many different areas of the law.

(1) In Matrix Fin. Servs. Corp. v. Frazer, — S.C. —, –S.E.2d–, 2010 WL 3219472 (2010), the South Carolina Supreme Court wrote a very important decision about a mortgagee’s unclean hands, concerning its engaging in the unauthorized practice of law, that has been widely discussed around the State. There was a dissenting opinion and another opinion concurring in result.

(2) Hooper v. Ebenezer Senior Servs. & Rehabilitation Ctr., 386 S.C. 108, 687 S.E.2d 29 (2009) is a decision where the South Carolina Supreme Court used the doctrine of equitable tolling to expand a statute of limitations in light of a corporation’s failure to properly list its registered agent for service with the Secretary of State. In this opinion, the Court discussed the equitable powers of a court to do fairness and to avoid grossly unfair results.

(3) A final illustration of an equity case is Horry County v. Ray, 382 S.C. 76, 674 S.E.2d 519 (Ct. App. 2009) where that Court of Appeals found the following equitable principle to be useful, “when one of two innocent parties must suffer a loss, it must fall on the party who, by incautious and misplaced confidence, has occasioned it or placed it in the power of a third party to perpetrate the fraud by which the loss has happened.”

3. What is the role of equity today in American courts?

Long ago, Aristotle defined equity as a correction of law where it is defective owing to its universality. Even today, I think that is a good definition as it highlights both the current and historical role of equity in modern American and English Courts.

4. What made you interested in starting your own blog, Equity is Swell?

It just hit me one day that I had all these student papers in my office from my equity class at the Charleston School of Law, and some of them were really excellent, truly creative papers on topics of genuine interest to South Carolina lawyers and judges. I decided if I put them on a blog that perhaps I could do a service to the students who wrote the papers as well as the bench and bar. Hence, the blog was started. Every time I teach Equity, I plan to add more student papers, power point presentations, and my syllabus in the hope that these materials may benefit judges, lawyers, and others.

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

This sounds really silly and trite, but I keep a poem in my office that I often re-read. It contains, I personally believe, some real wisdom – for all lawyers and others, both young and old. It is only three paragraphs long, and I repeat it here:

“It Couldn’t Be Done”

By: Edgar A. Guest
Copyrighted 1921
By George Sully & Company

Somebody said that it couldn’t be done,
But he with a chuckle replied
That “maybe it couldn’t” but he would be one
Who wouldn’t say so till he’d tried.
So he buckled right in with the trace of a grin
On his face. If he worried, he hid it.
He started to sing as he tackled the thing
that couldn’t be done and he did it.

Somebody scoffed: “Oh, you’ll never do that”;
At least no one ever has done it;
But he took off his coat and he took off his hat,
And the first thing we knew he’d begun it.
With a lift of his chin and a bit of a grin,
Without any doubting or quiddit,
He starting to sign as he tackled the thing
That couldn’t be done, and he did it.

There are thousands to tell you it cannot be done,
There are thousands to prophesy failure;
There are thousands to point out to you one by one,
The dangers that wait to assail you.
But just buckle in with a bit of a grin,
Just take off your coat and go to it;
Just start to sign as you tackle the thing
That “cannot be done” and you’ll do it.

BIOGRAPHY: Stephen A. Spitz joined the Charleston School of Law faculty in 2004 as full professor. Prior to his time at the Charleston School of Law, Professor Spitz served on the faculty at the University of South Carolina School of Law for 26 years. Professor Spitz teaches courses in remedies, property, real estate transactions and environmental law, including a seminar on the federal Superfund law. Among his publications are a case book, Real Estate Transactions: Cases and Materials (written with previous Abnormal Use interviewee Michael J. Virzi), a practice pamphlet, “Searching Land Titles in South Carolina,” and an article in The South Carolina Law Review, “SUEM, Spitz’s Ultimate Equitable Maxim: In Equity, Good Guys Should Win and Bad Guys Should Lose.” He also has written chapters in books on South Carolina water and environmental laws. Professor Spitz recently launched his own blog, Equity is Swell, in which he publishes student papers and presentations in the hopes that they may benefit South Carolina judges and lawyers.

Friday Links

  • We here at Abnormal Use are not sure where we come down on the issue of the possible posthumous pardon of long-dead former Doors frontman Jim Morrison. If you missed this story in the news, Florida governor Charlie Crist is considering a pardon for Morrison for a 1970 conviction for indecent exposure and profanity. That’s a bit puzzling to us. Sure, we could offer you some righteous editorial about currently neglected injustices which are in greater need of attention, but it’s Friday, and we’re too tired to offer such a harangue. We could say that the only reason this made it to the Governor’s desk is that it involves a world famous rock star wrapped in his own bizarre mystique and that petty offenders in the jails receive no such acclaim or calls for assistance. But surely somebody else is going to say that, and our hearts aren’t really in that argument, anyway. But here’s the deal: That criminal conviction is so much a part of the Morrison legend that as fans of rock and roll music we must let it stand. Whether the 1970 conviction was faulty, or whether we as a society have simply come around in forty years to see the underlying conduct as being protected by the First Amendment, let’s not dilute the Doors story with a pardon. (See also The New York Times ArtsBeat blog’s coverage here).
  • If you’re not following Tweets of Old on Twitter, you’re certainly missing out. Here’s how they describe what they do: “We attempt to reveal the lives of our predecessors through the tweets of yesteryear: mostly one-line brevities from old newspapers, as they appeared –or close.” Whatever the case, last week, they tweeted this report about an unusual event at an Oklahoma trial presided over by one Judge Trimble in 1935. Ouch!
  • This week, The Daily Gamecock – the official student newspaper of the University of South Carolina – began a three part series on the University of South Carolina’s law school. The other components of the story are here and here. (Hat Tip: The Faculty Lounge).
  • The 1709 Blog reports on contest pairing Shakespeare and the modern day perils of copyright law. Get this:

    “Music and Intellectual Property” is the title of a one-day conference which CLT Conferences is running on 8 December in Central London. Subtitled “Identifying, Protecting and Enforcing Rights in Music”, the programme features a double input from the 1709 Blog: Ben Challis (General Counsel, Glastonbury Festivals Ltd) speaks on “The Glastonbury Tales: the Practicalities of Festival Life and IP“, while Jeremy Phillips takes the chair for the day. There are some other excellent speakers too, and the day promises to scintillate. You can see the full programme here.

    There’s a competition running along with this conference, the prize being complimentary admission — and the fabled free lunch. It goes like this. Shakespeare’s play Twelfth Night opens with Duke Orsino saying

    “If music be the food of love, play on,
    Give me excess of it”.

    Your task is to complete the following sentence:
    “If music be the food of love, then copyright is …”

    We here at Abnormal Use love contests, so we are going to use this installment of Friday Links to enter (and attempt to win). Our submission: “If music be the food of love, then copyright is the gastric bypass.” Aren’t we clever? Now, if we win the contest, how are we going to convince our managing partner to let us go to London?

  • Feeling nostalgic for law school? Check this out quip from a law student’s blog: “The probability of getting called on in class is inversely related to the degree of preparation spent on said class,” first year law student Tanny writes here at her blog, The Learning Hand, apparently realizing for the first time that lesson we here came to know so long ago.
  • We’re big fans of Rick Hasen’s Election Law Blog, which has been around since 2003, the early days of the legal blogosphere. We are pleased to see that he’s in our part of the country today for a conference. He’s in Atlanta, just two hours south of us, so we recommend he find time for a burger at the The Vortex Bar and Grill, if time permits.
  • Finally, congratulations to our own Stephanie Flynn, blog author and partner at our firm, are in order. This very day, she’s in New York, New York for the ABA Section of Litigation’s 11th Annual Women in Products Liability Workshop. Stephanie will be co-moderating a panel discussion entitled “Legal Marketing: What Technology Works?” beginning at 4:00 p.m. today. It will center around social media and how it can be used to assist in client development and networking. The panel includes Mercedes Colwin of Gordon & Rees, LLP, Kelly Jones of Harris Beach, PLLC, and Jim Smyth of Ezults L.L.C.

Thoughts on a Practical Legal Education

Ah, law school curriculum reform. A popular topic, and one always worth discussing, though true reform rarely occurs. The Law School Innovation Blog alerted us to a recent discussion at the Prawfs Blawg about potential 1L curriculum reform. The author of the Prawfs Blawg post noted that students fail to read cases and statutes closely enough and seem ill-prepared even after their first year. As a part of its post, The Law School Innovation Blog highlighted two comments to the original Prawfs Blawg piece, including one from a law student who complained that law school utilized too much of a “hide the ball” approach, and a response from an attorney who declared that hiding the ball is, in fact, the best method of instruction.

These issues, though, are symptoms of a much larger curricular problem, one that is not solely confined to the first year. As we all know, the first year curriculum is mostly uniform throughout the nation, focusing on the law of no jurisdiction in particular and the common law as it supposedly existed at some point in the eighteenth century. Though first year students do not typically learn the substantive law of an actual jurisdiction, the curriculum is helpful in training students in legal thinking and disabusing them of any judicial system stereotypes they picked up from their poli-sci profs. Are we really going to utilize the Rule in Shelley’s Case in our daily practice? Probably not. But that’s not really the point of the first year, which is to teach law students legal reasoning and analysis.

Despite the occasional outcry against the Socratic method, the first year curriculum is actually quite unique and helpful, despite its natural stresses. Sure, there may be law professors who delight in frightening those young would-be attorneys. But that approach has worked for many a decade, and sometimes, tradition should be emphasized, especially when it is useful.

So, let’s forget first year curriculum reform. Really, it’s the second and third years that are in need of radical overhaul, anyway. After an intensive first year, students drift away from difficult and demanding courses to focus on finding a job (no small feat these days) or perfecting their putting stroke. Many others spend that time taking interesting, though impractical, elective courses which will not serve them in the future. Although some students relish the opportunity to take “bar courses,” few law school graduates take the opportunity – or even have the opportunity – to learn the practical skills that will become their bread and butter.

Licensing entities have taken notice. Some state bars have imposed additional requirements upon law school graduates based upon the assumption that there is still something left for them to learn before entering the profession. For example, here in South Carolina, bar applicants must take a course called “Bridge The Gap,” which by its very name, suggests that there is at least a minor deficit in the education of said graduates. (The Bar has also set up a mentoring program for new attorneys). Although some institutions have implemented practical components into their curriculum, why aren’t most of the law schools out there addressing these issues?

The burden also shifts to the law firm, as the employer of the gap-bridging graduate, to inculcate the tricks of the trade. Larger firms may simply absorb this responsibility as a part of its general associate training. But in these troubling economic times, this can become a problem of import. Many law school graduates, unable to find jobs, are starting their own firms without any practical skills or experienced guidance. How did they find themselves in that position?

What to do? Instead of tweaking first year curriculum, law school administrators should consider more dramatic changes in the law school paradigm. The second and third years can be transformed into true opportunities to learn practical legal skills (as well as everyday ethical issues and the business of law). State bars should be confident that students graduating from accredited institutions have been properly trained both in the nature of substantive law and legal thinking but also practical skills that will be employed on a daily basis as lawyers. Last but not least, law students are consumers of legal education. If we expect them to spend three years of their lives and hundreds of thousands of dollars to enter our profession, there should be no gap to bridge upon graduation.

Choice of Law – Application of the Laws of Multiple States in One Action

One consideration that practitioners need to always keep in front of them is how choice of law principles can affect what state’s law applies in an action. A recent opinion by the District of Maryland is a good example of how the application of choice of law rules can result in the application of multiple states’ laws in one action. Desrosiers v. MAG Indus. Automation Sys., LLC, No. WDQ-07-2253, 2010 WL 4116991 (D. Md. Oct. 19, 2010). This opinion does not discuss any novel choice of law rules but is relevant to show the importance of the question — “What law is going to apply?”

David Desrosiers was killed while operating a horizontal boring machine at work in Maryland. The machine was manufactured and sold by a Wisconsin company in 1953. Bridget Desrosiers sued the manufacturer as well as its holding companies as a result of David Desrosiers’ death asserting various products liability claims. She brought both a wrongful death action and a survival action.

The Maryland district court granted summary judgment for the two holding company defendants and granted in part and denied in part summary judgment for the manufacturer.

In making its determination on defendants’ motions for summary judgment, the court first applied the basic rule that “[i]n a diversity case, the choice of law rules are those of the state in which the Court sits.” Therefore, the Court looked to the choice of law rules of Maryland. “Maryland generally follows the principle of lex loci delicti, which applies the law of the place ‘where the last event required to give rise to the tort occurred.'” Further, in Maryland, wrongful death actions are governed by statute.

Therefore, on Desrosiers’ survival claims, the Court applied lex loci delicti and determined that Maryland law applied because the decedent was at his work site in Maryland at the time of the injury that resulted in his death. However, on Desrosiers’ wrongful death claims, the Court looked to Maryland statutory law that stated that “if a wrongful act occurred in another state, [the Court] shall apply the substantive law of that jurisdiction.” The Court interpreted “wrongful act” as the act that entitles another party to recovery, and since Desrosiers claimed that the machine was defectively designed, the “wrongful act” occurred in Wisconsin where it was manufactured. The Court, therefore, applied Wisconsin law on Desrosiers’ wrongful death claims.

The Court applied both Maryland law and Wisconsin law throughout its opinion. The differences between Maryland law and Wisconsin law were not outcome determinative in this matter; however, it could be in other matters. That said, we need to always determine at the outset of a matter what law applies and be ready for any differences in the application of those states’ laws.

Jury Orders Drugmaker to Pay $257 Million to State for Improper Marketing Practices

A Louisiana jury in mid-October issued a $257.7 million verdict against Janssen Pharmaceutica, Inc. and its parent company, Johnson & Johnson, finding that the drugmaker misled Louisiana doctors about possible side effects of its antipsychotic drug Risperdal. See Caldwell ex rel. State of Louisiana v. Janssen Pharmaceutica, Inc., 04-C-3967, 27th Judicial Court, St. Landy Parish, Louisiana. Businessweek reports that the basis of the suit, which was initiated by the state’s attorney general, was that J&J officials wrongfully touted its drug as superior to competing antipsychotic drugs and attempted to minimize its links to diabetes.

The state’s case was based on claims that J&J and Janssen sent 7,604 “Dear Doctor” letters to Louisiana medical providers and made a total of 27,542 sales calls, in which company representatives claimed that Risperdal was safer than competing antipsychotic drugs such as Eli Lilly’s Zyprexa and AstraZeneca’s Seroquel. (See our previous post here, where we took a look at the litigation involving claims that AstraZeneca failed to warn users of the diabetes risks associated with its antipsychotic drug.) The state’s local NBC news affiliate reported that J&J’s statements were in violation of the state’s Medical Assistance Programs Integrity Law (MAPIL), which requires that the attorney general protect medical assistance programs from companies that engage in fraud, misrepresentation, or other improper practices to obtain payments for which they are not entitled.

According to an article at Law360, which explores a bit of the history of lawsuits against J&J involving improper marketing practices, the jury in the present case issued penalties of $7,250 for each of J&J’s 35,542 alleged violations of the MAPIL, which amounted to one of the largest verdicts in the history of the state. Patrick Morrow of the Opelousas law firm of Morrow, Morrow, Ryan and Bassett, which actually tried the case on behalf of the state, said of the verdict: “You can’t come into Louisiana and disseminate false and misleading information.”

Although J&J has denied any wrongdoing in connection with these claims, this verdict certainly will have a lasting impact on the way drugmakers market their products to doctors and medical professionals.

U.S. Supreme Court Ruling Will Have Ripple Effect on Cases Alleging Vaccine-Autism Link

The United States Supreme Court heard arguments recently in a case that is expected to have significant implications for hundreds of pending lawsuits against vaccine makers. In these suits, various plaintiffs contend there is a link between childhood vaccines and autism. While the case presently before the Supreme Court does not involve a claim that autism was caused by a childhood vaccination, a recent article in The New York Times states that approximately 75 percent of similar claims do involve the disorder. This alleged association has been a hot-button issue for years, as repeated scientific studies have found no connection between vaccines and autism.

SCOTUSblog has previously set forth the particulars of this case, which is styled Bruesewitz v. Wyeth, Inc., 561 F.3d 233 (3rd Cir. 2009) (see the Third Circuit Court of Appeals’ order here, from which Plaintiffs appealed). Essentially, the case calls into question whether the National Childhood Vaccine Injury Act (NCVIA) should protect manufacturers from virtually all product liability lawsuits. The NCVIA, established by Congress in 1986, provides that vaccine manufacturers cannot be sued for injuries from vaccines if the injuries resulted from side effects that were “unavoidable.” Elsewhere in the Act, Congress also created an administrative process known as the “Vaccine Court,” which was designed to provide money to children injured by vaccines. Accordingly, the law would preempt such claims in state court. This was critical, Congress believed, because vaccine manufacturers otherwise might have gone bankrupt due to judgments against them and would be unable to make vaccines critical to public health.

Hannah Bruesewitz, the plaintiff in the present case, is an 18-year-old woman who suffered seizures when she was six months old and subsequently suffered developmental problems, according to her parents, after receiving a type of D.T.P. vaccine that is no longer sold. Bruesewitz’s parents initially brought a claim on her behalf in Vaccine Court, but the severe injuries she reported had been removed from the list of those that qualified for compensation. Her claim was thus rejected, and her parents subsequently filed a product liability lawsuit against Wyeth. Lower courts ruled that her claims were barred by the Vaccine Act.

The parties disagree about the meaning of the statutory language of the Vaccine Act. The plaintiffs argue that if the vaccine could have been manufactured in a safer way, Hannah Bruesewitz’s injury was not “unavoidable.” They have argued that the manufacturer knew at the time their daughter was immunized that there was a safer version of D.T.P. vaccine but did not produce it. According to The New York Times, Bruesewitz’s father has said that he and his wife are not opposed to vaccines, but they have pressed their daughter’s claim because they believe vaccine manufacturers needed to face the threat of litigation to produce safer medications.

Wyeth, for its part, argued that the only types of claims that are not preempted are those alleging manufacturing defects or a failure to warn. A number of Amicus Briefs were filed in support of each party. Those arguing that Congress intended to bar such claims were filed by the solicitor general of the United States, the Chamber of Commerce, and several professional medical groups including the American Academy of Pediatrics. This case certainly will be one to watch. It likely will have huge implications both as to a number of lawsuits filed and to be filed, and within the drug manufacturing industry in general. This case before the Supreme Court has become a true battle of the experts, with constitutional law heavy-hitters weighing in on both sides of the issue.

The debate regarding the alleged vaccine-autism link is sure to rage on. In spite of the numerous scientific studies showing no such causal link, CNN reports that one in four parents is concerned that vaccines cause autism. The report points out that parents simply are refusing to have their children vaccinated due to unreasonable fears, which can cause a resurgence of preventable diseases.

Friday Links

  • The comic book cover above is that of Famous Crimes #10, published way, way back in 1949. This is an odd perspective. Note that judge, responding to the hysteria occurring in his courtroom, exclaims, “This is highly irregular – clear the court room at once!” When is the last time you heard a judge describe something as “highly irregular”?
  • We like to keep tabs on the South Carolina legal blogosphere, even if the blogs from our state aren’t necessarily focused on products liability. So, congratulations to the South Carolina Family Law Blog, which was recently named one of the top fifty divorce blogs.
  • We are disappointed to learn from Gizmodo that Sony has discontinued the Walkman. Yet another technology of yesteryear consigned to the scrapyard of history. Was it only in 1986 that we listened to the Beastie Boys’ License to Ill on our own Walkman? Of course, we shouldn’t complain. Some of the senior partners here are still lamenting the loss of their beloved eight track players, a continuous grieving which prompted one of our junior associates to ask, “What’s an eight track player?” (Additional coverage on the Walkman demise from the Associated Press here and The Consumerist here.).
  • How is it that we only just discovered iPhone J.D., a website and blog dedicated to lawyers using iPhones? It’s like it was created just for us. And it has a Twitter account, too!
  • Last week, we here at Abnormal Use congratulated the Drug and Device Law blog on its fourth birthday. Last Friday, that blog posted one of its annual philosophical and introspective pieces in the wake of the fourth anniversary of its first post. In fact, in that very post, the authors thanked us for our own piece and even noted that they enjoyed our regular posting of legal themed comic book covers on Fridays. However, we did notice that they didn’t get our name quite right – they called us the Abnormally Dangerous blog. This takes us back to high school when the cool kids acknowledged our existence but didn’t get our names fully correct. Well, we’re just going to run with it, and maybe change our name to what they think it is rather than attempt a correction. That’s right, we’re cool now.

Starbucks Wins in a Case of Hot Tea Versus Old Lady

In honor of the Tea Party’s victory/destruction of the country as we know it, we here at Abnormal Use take this opportunity to write about tea. Not just any tea, mind you, but extremely, piping hot tea. Tea so hot, that if you removed the lid and poured it on your body, it would burn you just as if it were brewed in the fires of Hephaestus himself. A tea so destructive and ominous that it has earned the street name of “2012.” Notice that if you remove the “0” from 2012, you find yourself with 212, which is the Fahrenheit temperature at which water boils, so obviously, the imminent collapse of humanity has much to do with boiling hot tea.

Unfortunately, this is 2010, a time in which poor 76-year-old Plaintiff Rachel Moltner simply cannot subsidize her own negligence with the profits of the mega-corporation Starbucks. In yet another hot beverage case, we see a purportedly evil-beverage serving corporation forcing consumers to burn themselves and then legally smiting the innocent consumer via summary judgment, surely while the CEO lights his cigar with $100 bills and guffaws mercilessly.

On Tuesday of this week, the Second Circuit affirmed a grant of summary judgment to Starbucks against Moltner in Moltner v. Starbucks Coffee Co., No. 09-4943-cv, 2010 WL 4291299 (2d Cir. Nov. 2, 2010) [PDF]. After several months of ordering a weekly regular sized hot tea, Ms. Moltner upgraded to the “Venti,” a 20-oz behemoth of a beverage. The tea was double-cupped and sleeved, the purpose of which, was, of course, to protect the consumer from burning her hand on the very hot elixir. Moltner was handed the beverage, lid in place. She then ambled over to a table to pour some sugar into her tea. As she removed the lid, she poured some tea into her shoe, causing her burns necessitating skin grafts, as well as some secondary injuries related to her hospital stay, including bed sores, a fractured sacrum, and some herniated discs. (As an aside, Ms. Moltner’scoffee name” was Plaintiff Oldy McOlderton.)

Per the district court, however, at Moltner v. Starbucks Coffee Co., No. 08 Civ 9257, 2009 WL 3573190 (S.D.N.Y. Oct. 23, 2009), plaintiff’s counsel tried to spin this double cupping: “Plaintiff alleges that the double cup constitutes a dangerous defect . . . .” While a double cup may be inadvisable or ineffective in other walks of life, here, in fact, it was no defect. Furthermore, expert suppositions about grip positioning or finger size were likewise dismissed. (We’d like to see the CV of the tea cup grip positioning expert.). Plaintiff also tried to make some hay with an apparent directive from Starbucks to its employees that they not double cup because it changes the cup’s center of gravity. Seriously. I have never thought about ensuring that my beverages have a low center of gravity. Unfortunately for her, Ms. Moltner’s quest for not more than $3 million dollars ended in a sweet and frothy summary judgment. Pour some sugar in that.

Lest you think me heartless, I do empathize with Ms. Moltner. I don’t wish injury upon anyone, but spilling a hot beverage on yourself is not grounds for a cause of action. It wasn’t in 1992, and it isn’t 18 years later. It’s just carelessness or bad luck or the whims and caprices of the fates. Please just accept some responsibility and be careful when you double cup.

Abnormal Interviews: Law Professor Alberto Bernabe

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 Alberto Bernabe of The John Marshall Law School in Chicago. The interview is as follows:

1. What do you think is the most significant new development in products liability litigation of the last year?

I think that preemption will continue to dominate the discussion for a while. Last year’s Supreme Court opinion in Wyeth v Levine was the most important decision of the year and the Court has two very important preemption cases before it right now. The first one is Bruesewitz v. Wyeth, in which the Court will determine whether the National Childhood Vaccine Injury Act preempts vaccine design defect claims. The second one is Williamson v. Mazda Motor Corp., in which the Court will consider whether federal regulations preempt a claim in state court for damages caused by a car manufacturer’s failure to install a three point seat belt. This case is particularly interesting because it will allow the Court to reconsider its decision in Geier v Honda (decided in 2000) in which the Court found that a state claim was impliedly preempted by the federal regulations that gave automobile manufacturers the choice to use either seat belts or air bags. It will be very interesting to see if, in the wake of Wyeth v. Levine, the Court changes its view. It will also be interesting to see how it contributes to the legacy of retiring Justice Stevens, who wrote the dissenting opinion in Geier and the majority in Levine.

2. What rule or concept in modern products liability jurisprudence do you believe is the most outdated? How would you change it, and why?

There are a few good candidates. One answer is contributory negligence as a complete defense, but this is available in only a few jurisdictions. A more interesting – and perhaps controversial – answer would be that we need to take a careful look at the concept of the so-called “learned intermediary doctrine” in prescription drug cases. I think the policy behind the doctrine made sense when it was developed originally, but it is not frivolous to argue that both the practice of medicine and the marketing of prescription drugs have changed so substantially that we need to re-think the application of the doctrine.

3. Generally, how would you characterize the media coverage of products liability lawsuits and issues?

Inconsistent or incomplete. The typical media coverage tends to focus on generalities rather than the details and it is the details that matter most. Also, in many instances the media is interested in the extreme cases to exploit the “shock value” of the stories. My impression is that the coverage of those types of stories is almost always incomplete. There is little attention given to the argument that litigation can have a positive role to play that often results in more safety for consumers.

4. You also teach ethics. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

I am glad to hear you refer to the use of the Internet “to communicate” because my impression is that a lot of people still think that lawyering over the Internet only relates to “advertising,” which is a mistake. The fact of the matter is that there are a lot more issues that lawyers need to be aware of when it comes to the Internet. Participating in social media, for example, can lead to problems related to the inadvertent establishment of an attorney-client relationship, to the disclosure of confidential information and to duties to prospective clients, all of which can also result in conflicts of interests, disqualification and discipline. State bars will have to find better ways to inform attorneys of the risks they take when using modern technology and of the skills they need to do so safely. Earlier this year, the ABA took a good first step in this direction by issuing a new Ethics Opinion (No. 10-457) that summarizes the state of the law as it relates to the use of websites, but more needs to be done. In particular, state bars need to address the issues that arise when lawyers send metadata within electronic files. A number of jurisdictions have addressed the question, but the opinions are not in agreement. As more and more lawyers exchange documents by e-mail and other electronic means this is going to become a major issue. Many lawyers do not know the kinds of “hidden information” they are sending out in their electronic documents that someone with computer skills can access relatively easily.

5. You maintain a law blog. What is the biggest challenge for you in that enterprise, and how do you confront that challenge?

The biggest challenge is finding the time to do it well. I run two separate blogs – one on Torts and one on Professional Responsibility. It takes a lot of time because I am almost constantly checking other sources for the latest news and information. But it is very rewarding when I get encouraging messages from students, lawyers or other bloggers and when I see other bloggers mentioning my stuff in their blogs.

BONUS QUESTION: What do you think is the most interesting depiction of a products liability lawsuit in popular culture, and why?

In contrast to what I said about media coverage, which often tends to favor defendants, my impression is that movies with product liability themes tend to go the other way. Many portray defendants as villains who don’t care about the risks they create. Two movies come to mind quickly: Class Action (with Gene Hackman) and Thank You For Smoking. Class Action, which is very loosely based on the Ford Pinto case, provides a lot of material for discussion both in terms of products liability and professional ethics. It is also one of the few movies I have seen that illustrates that the most important part of litigation is the process of discovery rather than the trial itself. Thank You for Smoking is a very sarcastic look at the tobacco industry.

BIOGRAPHY: Alberto Bernabe is a Professor of Law at The John Marshall Law School where he teaches Torts and Professional Responsibility. After graduating from law school, Professor Bernabe clerked at the Supreme Court of Puerto Rico and later entered private practice, specializing in personal injury, mass disaster litigation, and media law. Before joining The John Marshall Law School, Professor Bernabe was a teaching fellow at Temple University, where he collaborated in teaching Torts, Products Liability and Legal Ethics. He has also taught Torts, Products Liability, Professional Responsibility and Media Law as a visiting professor at the University of Puerto Rico Law School.