Massachusetts: Summary Judgment For Manufacturer due to Plaintiff’s Lack of Causation

Recently, the United States District Court for the District of Massachusetts granted summary judgment in favor of a manufacturer of an injection molding machine on plaintiff’s claim that it was defectively manufactured, for lack of causation evidence. Brown v. Husky Injection Molding Sys., Inc., — F.Supp.2d —, No. 08-11840-RGS, 2010 WL 4638761 (D. Mass. Nov. 17, 2010). This case is interesting for the Court’s analysis of a manufacturing defect claim regarding a product that was manufactured and installed in the 1970s.

Defendant, Husky Injection Molding Systems, Inc. (“Husky”) manufactured a 1525 series injection molding machine with serial number 3350 (“3350 machine”) which was sold to WNA Comet East, Inc. (“Comet”) in 1974. Plaintiff, Jimmy Brown (“Brown”), began working for Comet as an injection molding machine operator in 2003. In 2006, while trying to clean the 3350 machine, his left hand got caught in the belt and pulley, suffering “crush injuries.” It was undisputed that the 1525 series was designed with a front pulley guard, and if it had been in place, the accident would not have happened. It was also undisputed that in 2000, Comet had “rebuilt the 3350 machine, stripping it to its base, and replacing or refurbishing constituent parts as needed.”

Brown asserted a claim against Husky alleging that the 3350 machine was defectively manufactured because Husky failed to install the front pulley guard. In response, Husky asserted that Brown had no evidence that the 3350 did not have the pulley guard when it was delivered to Comet. Husky filed a motion for summary judgment. In support of Husky’s position, the technician that installed the 3350 machine in 1974 testified that it had the front pulley guard when installed. In rebuttal, Brown offered testimony of a Comet employee that testified that he had never seen a guard on the 3350 machine. However, this employee did not begin working with these machines until 1976, two years after installation.

The Court first distinguished a claim for a design defect and a manufacturing defect. To prove the first, a plaintiff must only prove that a defect in the design existed at the time the product left the manufacturer’s control. To prove the latter, a plaintiff must show that the defect was caused by a manufacturing error affecting only one particular product and that it was not caused by intermediaries. The Court concluded that while Brown had testimony that no guard was on the machine in 1976, he could not rebut Husky’s installer’s testimony that at installation, a guard was on the machine. Further, Brown did not have testimony regarding the presence or absence of guards before and after the 2000 refurbishment. Therefore, the Court found that Brown could not prove causation and granted Husky’s motion for summary judgment.

This case exemplifies the difficulties in proving a manufacturing defect case, especially when a product is in the hands of an intermediary for a long period of time. Essentially, in this type of case, a plaintiff must be armed with testimony accounting for a product’s condition and non-alteration the entire period of time from the date it left the manufacturer’s control until the injury. Sometimes this can be extremely hard. But without that testimony, a defendant will be able to raise, like here, the potentially fatal absence of evidence of causation.

Friday Links

  • Depicted above is the cover of The Incredible Hulk #153, published way back in 1972. As civil litigators, we can’t say we know in detail all the various rules of criminal procedure which govern the sentencing of defendants. However, surely there must be one that could be invoked to allow the judge to sentence The Incredible Hulk in absentia to prevent the result shown above. The shackles they elected to use didn’t seem to do the trick.
  • Jeffrey Kuntz of The Florida Legal Blog asks an interesting question: “Is It Proper To Cite To A Shortened URL in An Appellate Brief?” As Kuntz notes, there is a risk inherent in such citations, as the abbreviated link may itself expire, and if it does, there is no way to ascertain the nature or domain of the original link. Best to use the full URL, we think.
  • Oh, boy, do we have a bone to pick with Stephen J. McConnell over at the Drug and Device Law blog. Writing about a series of four related court orders, McConnell strayed into popular culture and opined that “any rock band with four letters in its name will produce wretched music. Okay, we agree about Bush, Devo, Fuel, KISS, and TOTO, but AC/DC?! (There is massive disagreement here in Dechert-ville over ABBA, Rush, and Styx.).” We are aghast and agog. Where to begin? First off, Rush is a fine band as a matter of law. There can be no reasonable disagreement as to that fact (although the closest that one may come to creating a fact issue may well be the band’s 1991 album, Roll The Bones, which includes a pseudo-rap in the title track.). But as to McConnell’s more general statement about bands with four letter names, what about Beck, INXS, Muse, Nico (whose “These Days” is sublime), Pulp, Ween, Love (led by the late, great Arthur Lee), Luna, Lush and MGMT? Blur, Cake, Ride (who would inspire a band called Radiohead), RJD2, and Fear (the immortal Los Angeles punk band)? What about glam legend T. Rex and rap star Jay-Z? Sure, we’re torn about Ratt, Asia, Toto, and Seal, but Devo is sacrosanct. Earlier this year, we here at Abnormal Use were very excited to learn that Devo was to play a gig within 60 miles of our fair city, and we were crestfallen when that show was canceled due to an injury suffered by the guitarist. Alas.
  • Funny Or Die has posted a new Jackie Chiles video titled “Jackie Chiles Knows The Internet.” You’ll recall that we here interviewed actor Phil Morris – who plays Chiles in the video and on “Seinfeld” back in the old days – here.
  • Elsewhere in online video circles, Jon Stewart of “The Daily Show” has a little bit of fun with the reaction of the Consumer Product Safety Commission to news that Shrek souvenir glasses might contain cadmium. See here for that amusing clip.
  • Don’t tell our managing partner, but we here at Abnormal Use may sneak out of the office a bit early today to see the Tron sequel. We were kids when the original came out in the early 1980s. The sequel gives us a chance to revisit that era in our minds and recall a time when we had never heard the terms “billable hours” or “document review.”

New Governmental Regulations Seek to Improve Vehicle Safety

Recently, the federal government proposed new rules aimed at improving rear visibility standards for vehicles. The requirements, which the Transportation Department intends to take effect by the 2014 model year, were created to address concerns about drivers unintentionally backing over children. The Associated Press reports that most car makers will comply by installing rear-mounted video cameras and in-vehicles displays, which the governments estimates will add approximately $200 to the cost of each new vehicle.

According to data kept by the National Highway Traffic Safety Administration, every year, nearly 300 people are killed and 18,000 are injured because of backovers. Nearly half of the deaths involve children under the age of five and in approximately 70 percent of the cases, it is a family member who is responsible for the death., whose website entry regarding the recent regulations calls this the biggest announcement since seatbelts and airbags, is a Kansas-based nonprofit organization that has pushed for these changes for years. Founder and president Janette Fennell reportedly said, “No one would buy a car if you couldn’t see 20-30 feet feet going forward, but we all have been buying vehicles where we can’t see 20-30 feet going backwards.” As the photo above illustrates, studies have shown that the bigger the vehicle, the bigger the blind spot. Sedans have an average blind spot of 12 feet, minivans have an average blind spot of 13 feet, SUVs have an average of blind spot of 14 feet, and pickup trucks have double that number, with a blind spot of approximately 30 feet. The shorter the driver, the bigger the blind spot.

The current changes reportedly have been in the works for a number of years, with President Bush’s 2005 signing of the Safe, Accountable, Flexible, Efficient Transportation Equity Act, and Congress’s 2008 setting in motion of safety upgrades dealing specifically with backover accidents. Look for this safety upgrade during your next new car purchase.

The Case of the Reconditioned Lawnmower and Implications on Strict Liability

As we all know, a finding by a jury that a product is unreasonably dangerous will cause the manufacturer to be held strictly liable for any injuries the product causes. But what happens when the product itself has been used, “reconditioned,” and sold to someone else?
This was the question considered by the Seventh Circuit in Malen v. MTD Products, et al., No. 08-3855, 2010 WL 4670176 (7th Cir. 2010). Malen bought a Yard-Man riding lawnmower from Home Depot which was manufactured by MTD Products. The lawnmower was marketed by Home Depot as having been “reconditioned,” and the product came with a warranty. Malen took the lawnmower home and used it between 30 and 50 times without incident. One day, while mulching leaves, the lawnmower became wedged up against a curb and Malen couldn’t dislodge it. So, he stood up and tried to get off the lawnmower. There was conflicting information about the exact sequence of events, but it is undisputed that the blade of the lawnmower cut Malen’s foot, and he suffered permanent injuries.
According to industry standards, the lawnmower should have been equipped with two separate safety features–one that stopped the lawnmower blade if the operator stood up from the seat, and another that stopped the blade if the lawnmower was put into reverse. It was undisputed that at the time Malen test drove the lawnmower at Home Depot, the reverse safety function was not operational. Furthermore, it was uncontested that the blade did not stop when Malen stood up from the seat on the day of the accident.
As the Seventh Circuit pointed out, “Manufacturers and sellers are strictly liable for injuries caused by unreasonably dangerous products unless an unforeseen alteration by a third party introduced the unsafe condition.” Second, the court acknowledged that when products are used and sold “as is,” any unforeseen defects introduced by prior owners cannot be attributed to manufacturers and sellers. Both Home Depot and MTD attempted to show that the product had been altered by the first owner of the mower, by Malen, or by some other “nefarious person.” The court was not convinced.
It was, however, a case of first impression as to how Illinois courts would treat products that had been “reconditioned.” By reconditioning a product, the Seventh Circuit reasoned, is different than simply repairing a product, and in its opinion “extends the useful life beyond what was contemplated at the point of manufacture and effectively creates a new product.” The Seventh Circuit surmised that, as they have before, Illinois courts would follow the Restatement (Third) of Torts and apply strict liability in the case of re-manufactured products. On this basis, the Seventh Circuit found that the lawnmower, by failing to have the requisite safety measures in place, could be found unreasonably dangerous.
The court also concluded that a jury could find that the lawnmower was defectively designed, and the proximate cause of Malen’s injury on negligence theories. It reversed the grant of summary judgment for MTD and Home Depot, and remanded the whole case.
In this case, there was evidence that the safety measures were not properly connected or installed before the lawnmower was sold to its first owner. However, the decision has serious implications for manufacturers of products which are then “reconditioned” by someone else, and perhaps warranted by the retailer. If the reconditioned product later causes injury, the manufacturer may eventually be released from liability, but it obviously won’t prevent the manufacturer from being sued and forced to engage in expensive discovery as to the original condition and/or design of the product, and as to what modifications and/or repairs were performed on the product prior to resale, without the manufacturer’s knowledge and without compliance to the specifications of the manufacturer. All for the re-sale of a product for which the manufacturer saw no profits.

Views of 2011 From 1931

1931 was a long time ago, and few who live today can claim to remember it all too well. Just two years after the stock market crash of 1929, 1931 claimed Herbert Hoover as the President of the United States (which that year had 48 states). Movie monsters were the rage; Bela Lugosi starred in Tod Browning’s Dracula film and Boris Karloff did his star turn in Frankenstein. Cab Calloway recorded the classic “Minnie The Moocher” (and he was 49 years from performing it again in 1980’s The Blues Brothers). James Dean was born that year; so were William Shatner and Leonard Nimoy. That December, the first Christmas tree was placed at the construction site that would later become Rockefeller Center. The Lindbergh kidnapping was a year in the future, and the attack on Pearl Harbor – precipitating the country’s entry into World War II – was a full decade away.

It was a far different time culturally, socially, politically. The issue: What did the great minds of 1931 predict the rapidly approaching 2011 would be like?

There is actually an answer to that question.

Way back on September 13, 1931, The New York Times, founded in 1851, decided to celebrate its 80th anniversary by asking a few of the day’s visionaries about their predictions of 2011 – 80 years in their future. Those assembled were big names for 1931: physician and Mayo Clinic co-founder W. J. Mayo, famed industrialist Henry Ford, anatomist and anthropologist Arthur Keith, physicist and Nobel laureate Arthur Compton, chemist Willis R. Whitney, physicist and Nobel laureate Robert Millikan, physicist and chemist Michael Pupin, and sociologist William F. Ogburn. Since these guys all have their own Wikipedia entries so many decades later, they had to have been important for their time, right? Perhaps not a diverse lot, but it was 1931.

Ford, perhaps the most recognizable name to modern readers, set the tone of the project in his own editorial of prognostication:

To make an eighty-year forecast may be an interesting exercise, first of the imagination and then of our sense of humility, but its principal interest will probably be for the people eighty years on, who will measure our estimates against the accomplished fact. No doubt the seeds of 1931 were planted and possibly germinating in 1851, but did anyone forecast the harvest? And likewise the seeds of 2011 are with us now, but who discerns them?

We’re not certain why The Times chose to celebrate an arbitrary 80 years of existence. Whatever the case, the predictions are full of gems, so we encourage you to read the original articles (which, hopefully, The New York Times will unlock from its paywall as 2011 approaches). Today, we are just two weeks shy of 2011, so we must ask, how did some of these men fare in their predictions? Let us do as Ford suspected we would and measure their estimates against accomplished fact (at least as much as a humble products liability blog can do).

Dr. Mayo had this to say:

Contagious and infectious diseases have been largely overcome, and the average length of life of man has increased to fifty-eight years. The great causes of death in middle and later life are diseases of heart, blood vessels and kidneys, diseases of the nervous system, and cancer. The progress that is being made would suggest that within the measure of time for this forecast the average life time of civilized man would be raised to the biblical term of three-score and ten.

Dr. Mayo predicted the average life span in 2011 would be 70. He wasn’t far off. According to this post at the Centers for Disease Control and Prevention, it’s currently 77.9 years.

Interestingly, Keith warned of the coming perils of overspecialization in medicine:

Eighty years ago medicine was divided among three orders of specialists – physicians, surgeons, and midwives. Now there are more than fifty distinct special branches for the treatment of human ailments. It is this aspect of life – its ever growing specialization – which frightens me. Applying this law to The New York Times, I tremble when I think what its readers will find on their doorsteps every Sunday morning.

Any litigator who has ever attempted to secure a medical expert in an obscure field certainly understands the concerns espoused by Keith. All we can say is that Keith would probably not be pleased to see all the various branches of medicine that have arisen in the past eight decades. (But we here at Abnormal Use, as consumers of medicine, are pretty pleased about all the smart folks out there who know lots and lots about important fields and sub-fields of medicine.).

Ford, writing in 1931, just two years after the stock market crash, predicted that we as a nation might focus more on the intangibles of life than the bottom line:

We shall go over our economic machine and redesign it, not for the purpose of making something different than what we have, but to make the present machine do what we have said it could do. After all, the only profit of life is life itself, and I believe that the coming eighty years will see us more successful in passing around the real profit of life. The newest thing in the world is the human being. And the greatest changes are to be looked for in him.

Uh, okay. In these troubling economic times of ours today, we’ll just say, “No comment.”

Millikan observed:

Among the natural sciences it is rather in the field of biology than in physics that I myself look for the big changes in the coming century. Also, the spread of the scientific method, which has been so profoundly significant for physics, to the solution of our social problems is almost certain to come. The enormous possibilities inherent in the extension of that method, especially to governmental problems, has already apparently been grasped by Mr. Hoover as by no man who has heretofore presided over our national destinies, and I anticipate great advances for moving in the directions in which he is now leading.

Certainly, the scientific method has not solved all of our social problems (and Millikan would likely be displeased to learn how history now views President Herbert Hoover.).

Pupin was optimistic that workers would come to share in the profits of that they produced:

The great inventions which laid the foundation of our modern industries and of the resulting industrial civilization were all born during the last eighty years, the life time of The New York Times. This civilization is the greatest material achievement of applied science during this memorable period. Its power for creating wealth was never equaled in human history. But it lacks the wisdom of distributing equitably the wealth which it creates. One can safely prophesy that during the next eighty years this civilization will correct this deficiency by creating an industrial democracy which will guarantee to the worker an equitable share in the work produced by his work.

Er, not quite.

Compton predicted:

With better communication national boundaries will gradually cease to have their present importance. Because of racial differences a world union cannot be expected within eighty years. The best adjustment that we can hope for to this certain change would seem to be the voluntary union of neighboring nations under a centralized government of continental size.

Well, national boundaries are just as important as they were back in 1931. (And in fact, there have been a ton of wars in the past 80 years over just that issue). The United Nations would be formed fourteen years after Compton’s call for a “voluntary union of neighboring nations,” but its efforts and successes over the past 65 years have been, at best, a mixed bag. (Interestingly, Compton also predicted that China, “with its virile manhood and great nature resources,” would take “a more prominent part in world affairs.”).

Our favorite set of predictions, though, comes from Ogburn, who actually went out on a limb and made some bold predictions (some of which were dead on, other of which were not so much):

The population of the United States eighty years hence will be 160,000,000 and either stationary or declining, and will have a larger percentage of old people than there is today. Technological progress, with its exponential law of increase, holds the key to the future. Labor displacement will proceed even to automatic factories. The magic of remote control will be commonplace. Humanity’s most versatile servant will be the electron tube. The communication and transportation inventions will smooth out regional differences and level us in some respects to uniformity. But the heterogeneity of material culture will mean specialists and languages that only specialists can understand. The countryside will be transformed by technology and farmers will be more like city folk. There will be fewer farmers, more wooded land with wild life. Personal property in mechanical conveniences will be greatly extended. Some of these will be needed to prop up the weak who will survive.

Inevitable technological progress and abundant natural resources yield a higher standard of living. Poverty will be eliminated and hunger as a driving force of revolution will not be a danger. Inequality of income and problems of social justice will remain. Crises of life will be met by insurance.

The role of government is bound to grow. Technicians and special interest groups will leave only a shell of democracy. The family cannot be destroyed but will be less stable in the early years of married life, divorce being greater than now. The lives of woman will be more like those of men, spent more outside the home. The principle of expediency will be the dominating one in law and ethics.

Not too bad for a man born in 1886 who didn’t live to see 1960. Sure, he was off by about 150 million on the United States population for 2011. Sure, he didn’t predict the microchip or the Internet. Oh, and yeah, poverty hasn’t been eliminated and hunger is still a problem worldwide. But he generally seemed to understand the coming material leisure culture, the rise of big government, and the differences in the family unit in the world eight decades from his prediction.

Oh, and for the record, we here at Abnormal Use do not plan to use this occasion to make predictions about 2091, save for the lone augury that we here will still be toiling away at our desks in an effort to bring you fresh and insightful commentary each business day.


All of the articles listed below are linked and available online, but they’re also all behind The New York Times paywall archive. Unless you have access, all you’ll get is the abstract.

Compton, A.H. “Whole of the earth will be but one great neighborhood; Dr. Compton envisions the great development of our communications,” The New York Times, September 13, 1931.

Ford, Henry “The promise of the future makes the present seem drab; Mr. Ford foresees a better division of the profits to be found in life,” The New York Times, September 13, 1931.

Keith, Sir Arthur. “World we hope for runs away with the pen of the prophet; Sir Arthur Keith doubts if his individualist longings can be realized,” The New York Times, September 13, 1931.

Mayo, W.J. “The average life time of man may rise to the biblical 70; Dr. Mayo says also that a proper use of our leisure will be evolved,” The New York Times, September 13, 1931.

Millikan, Robert A. “Biology rather than physics will bring the big changes; Also, says Dr. Millikan, the scientific method will aid in government,” The New York Times, September 13, 1931.

Ogburn, William F. “The rapidity of social change will be greater than it is now; and hunger, says Dr. Ogburn, will not be a danger as a revolutionary force,” The New York Times, September 13, 1931.

Pupin, Michael. “Our civilization will create a new industrial democracy; it will give the workers a fair share in wealth, says Michael Pupin,” The New York Times, September 13, 1931.

Whitney, W.R. “Better world-wide education will serve our experiments, self-improvement is viewed by Dr. Whitney as the great task set for mankind,” The New York Times, September 13, 1931.

Abnormal Interviews: Law Professor Jill Wieber Lens

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 torts professor Jill Wieber Lens of the Baylor Law School in Waco, Texas. The interview, which mostly concerns punitive damages, is as follows:

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

I think one of the most significant developments of the last year was the government’s involvement in creating an alternative to tort law – the BP Oil Spill Fund. The Fund is advertised as a superior alternative — no attorneys taking a portion of the compensation received and the compensation should be paid out faster than in a lawsuit. The Fund may also allow claimants to avoid otherwise troublesome legal arguments like the economic loss doctrine, which if applicable, would preclude BP’s liability in negligence for causing pure economic losses.

At the same time, the BP Fund is very different than the 9/11 Fund. BP is funding it and compensating Kenneth Feinberg for his work. BP benefits directly if claimants apply to the Fund instead of heading to the courtroom. At a minimum, BP saves in legal fees and BP won’t pay any punitive damages within the Fund disbursements. I don’t mean to imply that any of this is necessarily inappropriate, but these are issues that were not present with the 9/11 Fund.

2. What component of punitive damages law do you believe is the least understood by civil litigators? Why?

Between the Supreme Court’s recent decisions in Philip Morris USA v. Williams, 549 U.S. 346 (2007) and Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), there’s a lot about punitive damages to misunderstand. And it’s not just that litigators are confused; it’s the lower courts, too.

In Exxon, the Court expressed its concern that punitive damages are unpredictable. Numerous lower courts are now integrating the concern for predictability into their constitutional analyses. This is understandable because if the Supreme Court is concerned about predictability, then the lower courts should be concerned also. But Exxon was a common law-based challenge to a punitive damage award. Predictability does not appear to be a constitutional issue. Otherwise, an excessive award would be permissible as long as it was predictably excessive. At the same time, the Supreme Court relied very heavily on its constitutional guideposts — mostly the reprehensibility and ratio between compensatory and punitive damage guideposts — in Exxon, so the guideposts and predictability analyses may not differ all that much. The constitutional relevance of predictability is unknown at this point.

3. Generally, how would you characterize the media coverage of punitive damages issues?

The media coverage of punitive damage issues focuses on the outliers — only the excessive punitive damage awards garner attention. This media coverage, of course, fuels tort reform advocates and has likely contributed to states’ adoption of punitive damage caps or statutes requiring payment of a portion of the award to the state.

It’s also interesting to watch whether the media coverage has influenced the Court. In Exxon, the Court noted that studies undercut the thought of mass runaway awards and show that most punitive damage awards do not greatly exceed the accompanying compensatory damage award. Thus, maybe the Court isn’t so influenced. But after discussing these studies, the Court still suggested reform — pegging punitive damages to the amount of compensatory damages.

4. What do you believe is a defense attorney’s best constitutional argument against the imposition of punitive damages?

The best argument will always depend on the circumstances of the case. If the defendant’s conduct is not that bad, then the degree of reprehensibility guidepost probably provides a strong argument. Still though, the argument is a bit abstract because courts have never really been able to explain the “degree” part of this guidepost. How much more should an award be if the conduct is more reprehensible?

From a litigator’s perspective, the best argument is likely based on the ratio guidepost. It’s relatively easy to compare the amount of compensatory damages to the amount of punitive damages. This is also the same reason that courts have latched onto this guidepost and may explain why the Supreme Court’s ultimate suggestion for reform of punitive damages in Exxon was to peg them to the amount of compensatory damages.

5. What federal or state court opinion has been the biggest surprise for you of late, and why?

I don’t know if I’m surprised by the result of the opinion, but an opinion that interested me lately was an Oregon Supreme Court decision entitled Patton v. Target Corporation, — P.3d —-, 2010 WL 4539445 (Or. Nov. 12, 2010) It limited the effect of Oregon’s statute mandating that 60 percent of any punitive damage award be paid to the State.

After trial, the jury awarded the plaintiff $900,000 in punitive damages. Before judgment was entered, the parties settled for an unknown amount and jointly requested dismissal. The State intervened, claiming it was entitled to 60 percent of the punitive damage verdict. Based on the language of the statute, making the state a “judgment creditor,” the Oregon Supreme Court determined that the State is not entitled to anything until the judgment was actually entered. And the parties settled before the court entered judgment.

Unless the legislature changes the language of the statute, this decision creates a huge incentive for parties to settle before judgment is entered. And even if the legislature changes the language of the statute enabling the State to recover, this will present interesting questions regarding whether the parties are limited in their ability to settle late in the proceedings if punitive damages are sought.

BONUS QUESTION: What do you think is the most interesting depiction of tort litigation in popular culture, and why?

Honestly, I try to avoid any depictions of the law in popular culture. I have difficulty enjoying them while knowing that they’re unrealistic. But honest depictions of tort litigation would not be too interesting. Can you imagine a show about document review? It wasn’t pure tort litigation, but “The Deposition” episode of “The Office” is one of my favorites. When the attorney asks to ask Michael [Scott] another question, and Michael responds, “I’ll allow it,” as if he’s the judge – that was a great episode.

BIOGRAPHY: Jill Wieber Lens joined the Baylor University School of Law faculty in 2010 as Assistant Professor. In 2009, Professor Lens was a Visiting Assistant Professor at the University of Louisville School of Law. Before entering academia, Professor Lens practiced commercial and appellate litigation in St. Louis, Missouri. She teaches Torts and Appellate Procedure. Her current research interests include tort reform generally and punitive damages.

Friday Links

  • The cover of Wonder Woman #260, published way back in 1979, depicts the title heroine, in handcuffs, being ushered out of the courtroom by two bailiffs. The judge sternly pronounces: “Wonder Woman is a menace to society! Put Her Away!”, to which she replies, “Impudent Fools! No prison can hold me! I will return and DESTROY YOU ALL!” This is not good courtroom etiquette. (And, in fact, we’re not certain that Wonder Woman’s costume is appropriate courtroom attire.). However, we must admire Wonder Woman’s restraint in respecting the authority of the bailiffs escorting her out of the courtroom in handcuffs while simultaneously vowing to return and erase them from existence.
  • Do you dig independent films? Greenville, South Carolina based writer and director Chris White this week released Good Life, a twelve minute movie shot at Ristorante Bergamo, an Italian restaurant just a few short blocks from our law firm’s offices. How about that? White describes the plot as follows: “The Girl’s tenth birthday. A perfectly lovely dinner at a downtown restaurant with her father. Presents, candles, cake. Tonight though, it is she who will take care of him.” There are some tender emotional moments in the film, so we expect that some hard hearted litigators may be confused. But most others will enjoy its the simple joy depicted therein. To watch his new film online, click here.
  • Ken Shigley of the Atlanta Injury and Civil Litigation blog shares his remarks from the Bar Admission Ceremony at the Fulton County Courthouse last week. He offers some good tips to the newly minted Georgia lawyers (despite the fact that he’s a Plaintiff’s attorney).
  • We believe that any court in the land would find that 1980’s The Empire Strikes Back is the best film of the Star Wars series as a matter of law. No fact issues there, your honor. Thus, we here at Abnormal Use were saddened to learn of the recent death of Irvin Kershner, that austere film’s director. May he rest in peace.
  • Professor Mark Osler of the University of St. Thomas Law School (who this site interviewed here back in October) recently blogged about his last day of class for his first semester at that institution, which he joined earlier this year. In so doing, he relates that he found the seating chart for his very first class as a professor at Baylor Law School way back in the fall of 2000. Fun fact: One of the contributors to this blog was in that class.
  • We love “Seinfeld,” and we love Twitter. Since Monday, when we published our interview with actor Phil Morris (who played the character “Jackie Chiles” on “Seinfeld,” we’ve learned that Morris is on Twitter. You can find his account here, as well as the one he has set up for the Chiles character here. Finally, Whit Hertford, the writer and actor who is helping Morris with the resurrection of the Chiles character, can be found on Twitter here.
  • Last week’s “Question of the Week” at the ABA Journal was “Which law blogger would you most like to meet, and why?” After his interview with Phil Morris was posted this past week, surely everyone would request Kevin Couch from right here at Abnormal Use?

Beware Jury Instructions (or At Least, Pay Attention to Them)

I have a really long list of really important things that no one taught me in law school. One lesson that always finds itself at or near the top is this: PAY ATTENTION TO JURY INSTRUCTIONS. The smallest error or inconsistency can provide the basis for an appeal, or in some cases an entirely new trial. Never mind whether the jury actually listens to them or not.

Jury instructions served as the basis for appeal in Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir. 2010) (PDF). This suit arose out of an accident involving a city park ranger, who was thrown from a boat after the boat’s steering cable snapped and sustained a permanent injury to her ankle. She sued the manufacturer of the steering cable, alleging that it was defectively designed and unreasonably dangerous. During discovery, the parties determined and agreed that the reason the cable snapped was because water had somehow entered the core of the cable and caused it to rust. The parties could not agree on how the water got there. The plaintiff alleged that the cable was defectively designed and that a simple fix to the design could have prevented the water from entering into the cable’s core. Teleflex, however, provided evidence at trial that the cable was improperly installed, and had not undergone routine maintenance.

The jury entered a verdict for Teleflex, and the plaintiff appealed, taking issue with two aspects of the jury charges. First, as the Court points out:

Colorado law provides two different tests. Under the “consumer expectation” test, the jury is instructed to find defectiveness if the plaintiff proves that a product is dangerous “to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” Under the “risk-benefit” test, the jury is instructed to conclude that a product is unreasonably dangerous if the plaintiff proves that the risks of a challenged design outweigh its benefits. Appellants submitted instructions proposing that the district court instruct the jury under both tests, but the district court gave only the risk-benefit instruction.

The second dispute focused on Colorado Revised Statute 13-21-403(2), which creates a presumption that a product is not defective once it has been on the market for ten years. Over the plaintiff’s objection that the statute was procedural, not substantive, the Court instructed the jury on the statute.

The Tenth Circuit affirmed the verdict for Teleflex. First, it held that there was no error by the trial court in providing only the “risk-benefit” test to the jury because the case involved primarily technical and scientific information, rejecting the plaintiff’s argument that the jury should also have been instructed on the consumer expectation test because “rust is not rocket science.”

Second, the Court held that the trial court did not err by instructing the jury about the statutory presumption, because the presumption was substantive, rather than procedural, state law.

Although the plaintiff ultimately failed to persuade the Tenth Circuit to reverse the trial court, she successfully convinced the appellate court to consider her arguments, solely on the basis of jury instructions. It’s a good lesson to learn and, as I pointed out, not one you’ll necessarily learn sitting in the typical law school class.

Lawsuit Alleging False Advertising and Misrepresented Prices Comes Week Before Black Friday

Think you’re outsmarting the system by avoiding the hoards of Christmas shoppers and choosing instead to order gifts this year online? Perhaps not always the case, according to a complaint recently filed by seven northern California district attorneys against online retail giant, which is headquartered in Salt Lake City. Just as Christmas shopping reaches its peak, the discount retailer has been forced to defend its advertising and pricing practices, both of which have come under fire in the wake of allegations raised by the lawsuit.

According to the 33-page complaint, filed on November 17 in California’s Alameda County, Overstock has for several years “routinely and systematically made untrue and misleading comparative advertising claims about the prices of its products.” The suit alleges that Overstock used misleading measures to inflate its comparative prices and thus artificially increase the discounts that it claimed to be offering consumers. According to the suit, these misleading statements accompanied virtually every product listing on the Overstock site. Essentially, the complaint alleges that instead of comparing its prices with other merchants’ prices as claimed, Overstock often would make up “list prices” and “compare at” prices based on arbitrary markups over its costs for the products. The complaint seeks $15 in restitution and penalties.

As reported by, the complaint cites by way of example one buyer’s purchase of a patio set that Overstock advertised as having a “list price” of $999. The website offered the set for a seemingly huge discount at $449. The buyer who purchased the set, however, found a WalMart sticker on the set listing the sale price as $247, about $200 less than Overstock’s sale price. Vice president and general counsel for Overstock reportedly explained that this particular instance was simply the result of a misunderstanding between Overstock and its vendor. He said that Overstock strives to be as accurate as possible with its pricing because customers can easily check prices that are available elsewhere.

Overstock’s official statement regarding the lawsuit fires back, explaining that it had been in discussions over a period of several years with the California representatives who ultimately filed suit, and that Overstock had been under the impression that “great progress” had been made toward resolution. It thus “profoundly regret[ed]” that these officials chose to file a lawsuit “at what appears to us to be a strategically-timed moment” — i.e. about one week before “Black Friday” and “Cyber Monday.”

It certainly does seem suspicious, if Overstock’s representations are true, that California officials decided after years of discussions, to file suit on the eve of the height of Christmas shopping. Time will tell if media coverage of the suit is enough to turn shoppers away from Overstock this season.

Ohio: Duty to Warn that Football Helmet and Pads Could Cause Heat Stroke

In July 2009, the Southern District of Ohio decided, on the defendant-manufacturers’ motion for summary judgment, that a manufacturer of football equipment has a duty to warn that wearing full pads and a helmet could cause heat stroke. That case followed the well-publicized death of Korey Stringer of the Minnesota Vikings in 2001. Stringer v. National Football League, et al., No. 2:03-cv-665, 2009 WL 6885869 (S.D. Ohio Jul. 10, 2009).

Following Stringer’s death, his widow brought suit. After the summary judgment ruling, the defendant-manufacturers asked the Court to reconsider its decision denying the motion for summary judgment on plaintiff’s failure to warn claim. The defendants asserted that “this court committed clear error in holding that [defendant], as a matter of law, had a duty to warn of the risk of heat exhaustion and heat stroke, and in extending the duty to non-injured, non-users of the products, i.e. the Vikings’ trainers and coaches.” The court found no clear error in its July 2009 decision and denied the defendants’ motion for partial reconsideration.

The Court’s underlying July 2009 decision was brought to our attention as a result of this recent denial of the defendants’ motion for partial reconsideration. While this decision is more than a year old, it provides an interesting set of facts. In 2001, Minnesota Vikings player Korey Stringer died from complications of a heat stroke while practicing at training camp. Stringer was over 300 pounds, and he suffered heat stroke on a hot and humid day while wearing full pads and helmet. Stringer’s widow filed a lawsuit against the equipment manufacturers for failure to warn, design defect, breach of implied warranty and breach of express warranty.

The Court had granted the defendants’ summary judgment on all of the Plaintiffs’ claims except for her failure to warn claim. First, the court found that since the plaintiff could not show an alternative design for the equipment, it was not unreasonably dangerous and the plaintiff’s defective design claim failed. Second, the court found that “strict products liability has effectively preempted implied warranty claims where personal injury is involved.” Third, the court found no evidence that the defendants expressly warranted that the helmet and pads were safe for their intended use.

On plaintiff’s failure to warn claim, the court denied summary judgment because it found that “[d]efendants had a duty to warn of the specific risk of developing heat stroke because it was not an obvious risk, and because the connection between Stringer’s heat stroke and Defendants’ failure to warn was not remote enough to preclude liability as a matter of law.” Further, the court found issues of material fact about whether a warning would have changed the conduct of Viking trainers and prevented Stringer’s injuries.

The aspect of the court’s decision most intriguing to us is the court’s finding that the danger presented by the helmet and shoulder pads was not obvious. Stringer was a 300+ pound football player that was not new to the game and had likely practiced in full gear in the heat for many years prior. How could the danger not be obvious? In determining that the danger was not obvious, the court distinguished the general risk of becoming hotter when wearing a helmet and shoulder pads and the specific risk of developing heat stroke. The court stated that the first was obvious but the specific risk was not. We are still not convinced there is much a difference.