To many of non-lawyers, “preemption” is that nefarious word associated with a network’s decision to alter its television line-up with irksome breaking news. For defense attorneys, however, the term has a far more positive connotation. Preemption is a fan favorite because it can bar many types of claims. Needless to say, any time the United States Supreme Supreme Court issues a case involving preemption, we here at Abnormal Use pay close attention. Last week, the Supreme Court delivered two such rulings within a matter of days. It was a good week for express preemption, but for implied preemption, not so much. To assist you, our dear readers, in your review and analysis of this new jurisprudence, we’ve created this crib sheet.

In Bruesewitz v. Wyeth LLC, No. 09-152, 2011 WL 588789 (U.S. Feb. 22, 2011), the Court held that the National Childhood Vaccine Injury Act (NCVIA) preempts all design defect claims against vaccine manufacturers arising out of injury or death caused by vaccine side effects. In reaching this result, Justice Scalia, writing for a six justice majority, navigated through the depths of the English language, bringing to mind those halcyon grammar school days of sentence diagramming. While we needed a copy of the Cambridge Grammar of English to fully appreciate the opinion, here is a simple, though not as grammatically pleasing, synopsis:

• The Court examined whether 42 U.S.C. 300aa(b)(1) preempted all design defect claims against vaccine manufacturers. The statute reads as follows: “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” The words of this statute would be parsed thoroughly in this jurisprudential inquiry.

• The statute establishes unavoidability (given safe manufacture and adequate warning) with respect to the particular design as a complete defense.
• The use of the term “unavoidable” in the statute does not incorporate comment k to Section 402A of the Restatement (Second) of Torts. (Comment k exempts from strict liability “unavoidably unsafe products.”). According to Justice Scalia, there is no obvious intent to incorporate comment k because the statute uses the adjective “unavoidable” while the Restatement itself uses the adverb “unavoidably.”
• The statute’s “even though” clause grammatically is a concessive subordinate clause. Justice Scalia argued that the dissent’s reading of this phrase incorrectly linked proper preparation and labeling with unavoidability – the job of a coordinating conjunction.
• While seemingly admitting that the majority’s interpretation renders part of the statute superfluous, Justice Scalia contended that there is no rule indicating that a “passage which could have been more terse does not mean what it says.”
• The lack of guidance from the federal regulations for design defects compared to the plethora of guidance for proper manufacturing and warning, specifically mentioned in the NCVIA, suggests that design defects were not a basis for liability.
• While the Court has previously expressed doubt that Congress would preempt product liability claims without providing a federal substitute, Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), Justice Scalia insisted that the Court has never suggested it would be skeptical of preemption unless the congressional substitute operated like the tort system.
• Post-enactment legislative history is not a proper tool for statutory interpretation. (We all know how much Justice Scalia abhors any legislative history).
• Justice Breyer filed a concurring opinion. In so doing, he examined the legislative history and the statute’s basic purpose to reach the same result.
• Justice Sotomayor, joined by Justice Ginsburg, authored a lengthy dissent. According to her dissent, the statute does not preempt all design defect claims. Rather, Justice Sotomayor argued that where a plaintiff has proven that he was injured by a design defect, vaccine manufacturers are only protected if they demonstrate that the side effect was unavoidable and is otherwise free from manufacturing and design defects.

After all of that analysis, the Court couldn’t possibly have enough grammatical energy to decide another preemption case for some time, right? Apparently, the average preemption second-wind of a Supreme Court Justice is approximately 24 hours, because the following day, the Court rendered its second opinion of the week. In Williamson v. Mazda Motor of America, Inc. No. 08-1314 (U.S. Feb. 23, 2011), the Court held that Section 208 of the Federal Motor Vehicle Safety Act (FMVSS) does not preempt state tort suits claiming manufacturers should have installed lap-and-shoulder belts in lieu of lap belts in rear inner seats. Much to the chagrin of elementary school teachers across America, however, this decision didn’t demand such a precise stranglehold on the English language. The following is an overview of the opinion:

• Justice Breyer wrote the opinion for the seven justice majority (Justice Thomas concurred in the judgment and Justice Kagan took no part in the decision). As aforementioned, in Bruesewitz, Justice Breyer filed a concurring opinion advocating a broader approach to the preemption analysis. Williamson gave him the chance to demonstrate that approach.
• Breyer used the majority of the opinion to distinguish this case from Geier v. American Honda Motor Co., 529 U.S. 861 (2000) (holding that Section 208 of the FMVSS preempted a state tort suit against a auto manufacturer for failure to install airbags).
• In light of Geier, neither Section 208’s express preemption clause, nor its savings clause, limit the operation of conflict preemption principles. Instead, the Court must determine whether the state tort action conflicts with the federal regulation.
• According to Geier, giving auto manufacturers a choice between various passive restraint devices was a significant objective of the federal regulations. In allowing for this choice, the Department of Transportation (“DOT”) was concerned about a consumer backlash if airbags were required.
• In Williamson, the regulation gave auto manufacturers a choice between lap-and-shoulder belts and lap belts. That choice, however, was not a significant regulatory objective. The DOT enacted the regulation because it was convinced lap-and-shoulder belts would increase safety. The regulation’s history indicates that manufacturers were given a choice because lap-and-shoulder belts could cause “entry and exit problems for occupants.” Moreover, the DOT indicated it did not think a lap-and-shoulder belt requirement would be cost-effective.
• Even though the state tort suit may limit manufacturer choice, the Court held it is not an obstacle to accomplishing the purpose and objective of the federal regulation.
• Justice Sotomayor wrote a concurring opinion to emphasize the Court’s rejection of an overreading of Geier. She reiterated that the “mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied preemption.”
• Justice Thomas, concurring in the judgment, indicated that plain text of the FMVSS would lead to the same conclusion. Thomas argued that the FMVSS’s savings clause expressly preserved state tort actions.

While the advocates of preemption ended last week with only a .500 record, we here at Abnormal Use will not hang our heads. Unashamed of a moral victory, we can recognize the importance of distinguishing, rather than overruling, Geier.

You may remember our very recent Dennis Kucinich olive pit lawsuit post in which we intimated, unlike some defense counsel, that some lawsuits may actually have merit. Today, we return to the bounds of legal ridiculousness to discuss injury by chair, specifically on a booze cruise (technically a dinner cruise, but come on!). In Tillson v. Odyssey Cruises a/ka Premier Yachts, Inc., No. 08-10997-DPW, 2011 WL 309660 (D. Mass. Jan. 27, 2011), the Court tells it best:

The Court’s description of the event enables us to imagine the event in slow motion. It seems like it did occur in slow motion, as gravity acted on the Plaintiff’s body in a such a way that the best way to describe its coming to rest was through the word “eventually.” We”ve seen many falls in our day, but we were fairly certain that gravity acted on all objects equally. The Plaintiff’s body has some sort of air buoyancy. The court recited additional facts as follows:

After walking off the vessel, [Plaintiff] and his wife boarded a water taxi and then walked for about a quarter mile to their hotel. [Plaintiff] contends that the collapse of the chair caused him to endure back and leg pain, headaches, as well as episodic urinary incontinence.

Far be it from us to suggest that anyone ever fell down on a booze cruise, from a seated position, no less. Odyssey had the unfortunate circumstance of having a chair that “failed due to a cracked weld on its left rear leg.” Also, far be it from us to suggest that anyone would lose control of their bladder on a booze cruise. We will point out that episodic is not defined, and perhaps is limited to episodes where the Plaintiff participates in a booze cruise.

The Plaintiff was so confident in his liability case that he moved for summary judgment. He lost, of course, based on the court’s finding that the evidence of whether Odyssey had notice of the particular dangerous condition at issue presented a question of fact. But, if you plan to allege urinary incontinence from a fall during which you were partially supported by a deck chair, then you must be pretty confident about your case.

So what did we learn? The Plaintiff should have stayed on the deck and demanded a water ambulance. Nothing smacks of a made up lawsuit more than an injury, walking around as if nothing had happened, and then having back pain after the fact. Second, there will soon be a generation of plaintiffs who will demand a water ambulance. You see, with so many law graduates being unemployed, there will be a class of plaintiff who will immediately install a litigation plan, know what to do immediately upon injury, and have a mountain of student loan debt to pay off. Perhaps cases like this, where a plaintiff sues after walking away from the injury, will become less frequent.

The Mouse takes great umbrage that someone would complain of the cheese he graciously bestows upon us. The Mouse takes great pride in his cheese. But as you can see here, here, here, and here, multiple news outlets and blogs have picked up the story of a recent lawsuit filed against Disney for the ancient tort of injury by Nacho. Unfortunately, this case features a real injury. Four-year-old Isaiah Harris became hurt when he found himself about to fall (from an unsteady chair, of course), grabbed a tray of food for balance, and suffered an encounter with a “paper cup of scalding nacho cheese.” Of course, like all hot food and beverage proceedings, this lawsuit conjures up the spirit of Stella Liebeck, her hot coffee lawsuit, and its progeny that have been well chronicled. So in light of all of that, what is the real significance of this lawsuit?

First, it’s amazing to see the public reaction to these lawsuits. Scroll down through the comments to the news stories and blogs to see thoughts from those who have absolutely no sympathy for the child and blame everything on the parents. The commenting public now automatically equates a hot food lawsuit with frivolity, which, lawyers who followed the Liebeck case know is not always the case. Ms. Liebeck probably did very well for herself, settling her case on appeal after receiving a substantial jury verdict. Nevertheless, some part of the public thinks that hot food lawsuits are frivolous and remain unafraid to air their personal grievances. Whether this is attributable to a vague conception of a litigation tax on products, or some other archaic conception of pure contributory negligence, would be a fairly boring subject for a sociology paper.

Second, not that the lawyer would need this, but it is interesting that the public can issue spot in such cases. Scroll through the comments and see the number of people that remark upon the picture of Isaiah, the probability that a paper cup of cheese would land precisely on his mouth (where it looks like he tried to drink the cheese), and posit their own version of the facts. Website comments now double as free jury research. My own personal issue-spot: Why didn’t anyone handling this paper cup of cheese notice the purported temperature?

Third, and getting to the legal matters at hand, it’s not clear to me what the reasonable expectation of the consumer would be in a case involving nacho cheese. It’s not at all clear to me that the subject nacho topping was actually cheese. Does a consumer have a reasonable expectation that his or her nacho topping is actually cheese? It would be perfectly appropriate for the plaintiff’s parents to argue that they assumed that the topping was an unnaturally viscous liquid-at-room-temperature cheese-like substance. If it was cheese, then we will likely need to look for a cheese expert from the American Cheese Society and perhaps attend the Sonoma Valley Opportunities and Challenges Cheese Conference for further education on a consumer’s reasonable expectation of cheese temperature. There is no doubt that this lawsuit will appear on the conference agenda as the public fallout from injury by cheese is a serious topic to consider.

Fourth, while we often call out plaintiffs’ lawyers on the blog, the plaintiff’s attorney in this case, one Sean Cahill, seems to be a legitimate defense lawyer, who belongs to several defense-oriented organizations, at least according to his website. Perhaps Mr. Cahill is simply trying to beef up his cheese liability practice. Who knows? We’ll see if The Mouse pays something on this suit. Anyway, next time you go to Disney World, test the nachos.

Our beautiful home state of South Carolina is no stranger to unusual lawsuits. See here, for example, for coverage of one of our inmate’s “$63,000,000,000 billion dollar” lawsuit against Michael Vick. But there are other unique suits. A South Carolina product liability lawsuit filed in late January, though far from the level of absurdity of the Vick suit, arguably qualifies as odd.

Charleston’s The Post and Courier reports that a Berkeley County woman has filed suit, just shy of the three-year statute of limitations, against Hanes Corporation and Wal-Mart Stores, in which she alleges that a black bra she purchased at her local Wal-Mart permanently discolored her skin. The story has generated some considerable discussion among South Carolinians, who have posted many, many comments to the article. The “odd product performance” complaint sets forth negligence, breach of warranty, strict liability, and failure to warn causes of action, and alleges that the plaintiff “could not appreciate the danger the Hanes bra posed to her.”

According to the complaint, the plaintiff bought the black Hanes bra at Wal-Mart, wore it, and noticed a dark discoloration of the skin on her shoulders tracing exactly where the straps had been. Her local attorney, Jarrell Wigger, apparently granted an interview to The Post and Courier after filing the claim. He told the newspaper that the dyes used in the Hanes bra were defective, allowing them to “bleed out,” leaving his client with “skin discoloration [that] is permanent and persists to date.” He described the skin discoloration as “burnt” or dark in color.

We will continue to monitor the case for any interesting developments. For us, it’s the “permanent” part that doesn’t seem to make sense. Sure, it’s foreseeable that a new pair of unwashed dark jeans or unwashed bathing suit might “bleed out” onto a wearer’s skin, but to be absorbed by the skin permanently just seems unlikely. Then again, if this plaintiff still has the markings more than three years after her first wear, maybe her situation is, indeed, unique.

An interesting article published by Businessweek last month discusses what has become a growing trend in United States product liability law: a surge in big awards against companies accused of putting defective products in the marketplace. According to the article, ten of the 50 biggest jury verdicts last year came in product-defect cases, compared to five in 2009 and only one in 2008. In 2010, there were 15 jury verdicts of $25 million or more, versus seven in 2009.

We previously reported on two of these exceptionally large verdicts. The most recent of those was the $66 million verdict against exercise equipment manufacturer Cybex International, wherein a New York jury awarded the sum to a physical therapist who became paralyzed when an exercise machine fell on her at work. As we reported, the verdict, if allowed to stand, threatens to bankrupt the company. The company’s chief operating officer reportedly said of the suit that he has no idea what the company did wrong.

The second of those cases was that of the $500 million punitive damages award against Teva Pharmaceutical Industries, upon which we reported back in May as appearing to be a case of misplaced anger. There, a Nevada jury found that the company’s packaging of its anesthetic drug created a risk of contamination, thus leading to the plaintiff’s contracting of hepatitis.

So what’s the cause of these enormous, seemingly unwarranted verdicts? Legal experts consulted by Businessweek identify several factors: a stalled economy and recent flood of negative corporate news such as the BP oil spill, Toyota sudden-acceleration suits, and bank foreclosure practices. Some believe these issues have fueled public anger, and thus affected lawsuits across the country against other companies in unrelated cases. Defense attorneys consulted for the article note that it is now almost impossible to detect jurors’ prejudice and bias against corporate America, which today is “more subtle and not always conscious.”

Also quoted in the article is a comment by one of the team of attorneys who won the $500 million award against Teva. He reportedly attributes the rise in large product-defect awards to “cheap defendants and cheap insurance companies. . . . The defendants and the insurance companies are holding onto their money and they’re not settling the cases.” One can hope that his comment was taken out of context. Certainly, he doesn’t propose that company defendants and their insurers fork out huge sums of money to settle claims they believe have no merit? I don’t think this makes them “cheap.” A wise man once said that a jury trial, in spite of its shortcomings and pitfalls as discussed in the article, is one of the most distinguishing and greatest parts of the American judicial system. It sounds like there may be plenty of them this year.

The Grand Forks Herald reports that in November 2007 the plaintiff was pushing venison into a Pragotrade (the company has since changed its name to “Weston”) meat grinder as she aided her husband in his meat-processing business. Allegedly, a screw caught the tip of at least one of her gloved fingers and pulled her hand into the grinder – severing four fingers. Subsequently, the plaintiff filed suit against Pragotrade, the alleged manufacturer (Pragotrade has apparently denied that it was the manufacturer, but admitted to participating in the design of the product), and Cabela’s, the retail store in which it was purchased. The report did not specify the jurisdiction in which this suit was filed.

According to our research into the matter, the plaintiff alleges that the grinder’s 2 3/4 inch chute was too large and that it lacked sufficient safety warnings. The plaintiff admits that she declined to use the manufacturer-supplied plastic plunger to push the meat into the grinder. Unfortunately, because meat stuck to the plunger, she opted to use her hands.

In addition, the plaintiff admits that the grinder contained a warning, along with a diagram, to keep fingers out of the chute. However, she alleges that the warning was inadequate because it was not visible during the normal use of the grinder. While her allegations may be correct, the plaintiff omits one obvious piece of evidence – she was using a meat grinder. Admittedly, we here at Abnormal Use have not been privy to the meat grinding process. We assume, however, that the process of grinding meat involves sharp objects and the potential for serious injury. No diagrams are necessary.

In this most litigious of eras, it should come as no surprise that the she has attempted to shift the blame for her loss. There are not enough facts in the record to gauge the merits of any design defect claim, but it is interesting that the Plaintiff has elected to allege that the warning was inadequate. Apparently, there are no allegations that the warning was unclear – only that it wasn’t visible during the grinder’s operation. Given that the grinder’s chute was only 2 3/4 inches large and covered in meat during its operation, we are curious as to where the plaintiff would propose the warning be placed. Moreover, there must come some point at which the dangers of using a product become open and obvious. If a machine is sufficient to grind meat, it should surprise no one that it is also sufficient to damage inserted body parts.

The plaintiffs’ bar rallies around the cry that they are the only ones fighting for justice. Evil insurance companies further victimize already injured parties, blah, blah, blah. It’s unfortunate that so many plaintiffs’ lawyers seem unwilling or incapable of acknowledging that their lawsuits are involuntary transactions and legal strategies are, for the most part, economic choices.

Take for example, McCall v. Genentech, No. 3:10-CV-1747-B, 2011 WL 111440 (N.D. Tex. Jan. 12, 2011). In that suit, the Plaintiff claimed she was injured by the prescription drug Raptiva. In attempting to treat her psoriasis, she purportedly took the drug and then spent 25 days in a hospital and experienced continuing injuries. She filed a lawsuit in Texas state court naming Genentech (not Initech) and XOMA, who aided in the manufacture of Raptiva, as well as her physician, who prescribed the drug (who happened to be a clinical researcher of Raptiva), and two entities for which her physician worked. The latter three defendants were non-manufacturing defendants who just happened to be nondiverse from the Plaintiff. Accordingly, the defendants removed the suit to federal court, alleging improper joinder, and the Plaintiff predictably responded with her own motion to remand the case back to state court.

Perhaps the suit was originally filed in state court, rather than federal, because there is no mandatory scheduling order, no early disclosure of experts (meaning less upfront costs in expert reports), and all those things that can make litigation expensive. However, the Plaintiff has a problem because Texas has a limitation on damages as well as some mandatory expert disclosures in medical malpractice actions that make litigating in state court a lot like litigating in federal court. Since the plaintiff’s attorney’s job is (apparently) to maximize the return on an investment, the Plaintiff’s lawyer decided to disclaim any causes of action based on the physician-patient relationship in the original state court petition. Thus, the Plaintiff could still hope to squeeze some settlement value out of the case without costly expert discovery.

The strategy failed. By disclaiming the physician-patient relationship, the Plaintiff had no relationship on which to base a cause of action against the non-manufacturing defendants because a clinical researcher owes no duty to the public. Without viable causes of action against those defendants, the Plaintiff lost on the motion to remand and remained in federal court.

We’re glad that the federal rules monetize “justice” in the way that they do. Plaintiffs and their lawyers should bear some meaningful cost of the litigation up front as a means of speeding the litigation towards its end. There’s nothing wrong with trying to level the playing field as far as fees and costs go, as there should be economic pressures on both sides to resolve cases. Shouldn’t all sides be able to say that the Plaintiff’s case should be resolved quickly so that she can move forward with her life? Too many times, cases languish because there is no pressure to move the case forward. Whatever the case, it’s always nice for defense counsel to prevail because an opponent cannot or did not properly strategize.