Ear Candler Presents Issue of Fact

“Your Honor, don’t let stupidity create an issue of fact.”

Surely, someone, somewhere has uttered this sentence. Perhaps counsel for one of the defendants in Danaher v. Wild Oats Markets, Inc., No. 08-22930-DJW, 2011 WL 903878 (D. Kan. March 14, 2011). In a case with multiple defendants, Wild Oats Markets could not reach summary judgment on the plaintiff’s products liability claims related to ear candling. I have to admit that I was gainfully employed in the early 2000s and had not heard of the ear candling fad. Prior to reading the remainder of the post, I would recommend that you visit the Wikipedia page on ear candling, which contains such unintentionally humorous sentences as “According to medical researchers, [ear candling] is both dangerous and ineffective.”

The immediate takeaway from the case is that retailers should honestly consider whether carrying certain products is worth the risk of litigation. The basic facts of the case are as follows: Plaintiff buys an ear candle at Wild Oats in 2003. For some reason, by 2006, she still possesses the ear candle and decides that she would like to use it. She calls Wild Oats for a recommendation of an ear candler, they refer her to another store, and she eventually finds a person to perform the ear candling procedure, during which, Plaintiff inexplicably suffers a burn to her ear drum, when wax from the candle rolls into her ear. Although the manufacturer promulgated warnings about ear candles in the packaging, Plaintiff did not remember any warnings. Without reciting the entirety of the case, Plaintiff was able to survive a motion for summary judgment on warning defect and breach of implied warranty.

We may be somewhat defendant-friendly here at the blog, so let me offer potential defendants some advice. Do not sell devices designed to combust in the middle ear. It is not worth the $2 you will generate in revenue. Sell something else. In all seriousness, this product is at the very least some homeopathic harmlessness, but there should be some thought (foreseeable use) about the economics of the business. Is it reasonable to anticipate someone being injured from using the product in a reasonable way? If so, how much money can you make, taking into account the likely cost of insurance/litigation? It’s hard for me to believe that the manufacturer/distributor/retailer of the candle sat down with a lawyer at the inception of the business and the selling of this absurdity was determined to be an economically rational choice. But lawyers are good at telling entrepreneurs why things won’t work, and, if all entrepreneurs listened, we would not have such grand creations as the ear candle, Ford Pinto, or the Hindenburg. Today’s lesson is to examine the inventory that you sell for $10 or less. It might not be worth it.

Defense Verdict: Jury Finds Vehicle Defective But Driver At Fault

In a case the judge reportedly called the biggest civil trial in the history of the county, an Ohio jury on March 21 rendered a verdict in favor of the defendant, Yamaha Motor Corp., in a $20 million case involving the death of a 10 year-old girl, in spite of its conclusion that the ATV at issue was defective in its design or warnings. The machine at issue was Yamaha’s Rhino. AboutLawsuits.com reports that this was the sixth case won at trial by Yamaha over claims that its ATV is prone to rollovers; however, it reports that Yamaha settled more than 100 others.

The facts of the case were quite sad. It was reported by the local news that the 10 year-old plaintiff riding in the Rhino at a 2007 church picnic. The 21 year old driver, according to the defense, was inexperienced with the machine. He attempted to perform a high-speed “fishtail” stunt maneuver in a dark, muddy cornfield with multiple unhelmeted child passengers. The driver was not sued in the civil action but pleaded no contest to criminal charges.

It is refreshing to see that jury members, in spite of the tragic underlying facts of the case involving death of a child, seriously and thoughtfully deliberated as to what they believed was the true cause of the injury. This case is reminiscent of another case in Texas, which we covered here, involving very similar facts with a very different outcome. There, an 18 year-old Texas man was boating and swimming with friends when the driver of the boat, another 18 year-old, put the boat in reverse, striking his leg with the propeller. It eventually resulted in the loss of his leg.

The Texas plaintiff sued the makers of the boat, alleging the propeller was defectively in its design. The Texas jury did not believe that the actions of the driver, who was not named as a defendant, was a superseding cause of the injury. It attributed only 17 percent of the negligence to the driver, and ultimately awarded the plaintiff $3.8 million in damages for the loss of his leg. These cases are further proof that with a jury, it’s always a gamble.

"Greenwashing" Litigation in California

In November 2011, a California federal court is scheduled to preside over a significant “greenwashing” class action lawsuit which was filed against S.C. Johnson & Son, Inc. by a California resident on behalf of purchasers of various household products manufactured by the company. Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.). “Greenwashing” is a term used to describe the deceptive use of “green” marketing to promote a misleading perception among buyers that a company’s products are environmentally friendly.

In January 2008, S.C. Johnson, the maker of household cleaning products including Windex and Shout stain remover, began marketing and selling Windex with its prominently displayed, trademarked “Greenlist” labeling. It later incorporated the Greenlist label on other products, including Shout. The company devloped this system internally to rate its products in terms of their impacts on the environment. The plaintiffs alleged that the Greenlist label was deceptively designed to look like a third party’s seal of approval, which it is not. They further alleged that “among today’s environmentally-conscious consumers, products seen as ‘green,’ or environmentally friendly, often command a premium price and take market share away from similar, non-‘green’ products.” The plaintiffs claimed that had they known the Greenlist label was the result of the company’s own review process, they would not have purchased them.

Before the class-certification stage, S.C. Johnson moved to dismiss the complaint on two grounds: (1) that the plaintiff had not sufficiently alleged an injury; and (2) no reasonable consumer could have found the Greenlist label misleading. That motion to dismiss was denied by the California federal court in a five-page, unpublished order in January of 2010. Koh v. S.C. Johnson & Son, Inc., 2010 WL 94265 (N.D. Cal. Jan. 6, 2010).

This will be an important case to watch, as it could have significant implications on acceptable “green” marketing practices. In fact, the class-action suit should serve as a warning to product makers to be cautious in advertising their products as “green” or environmentally friendly, especially where that representation is not supported by a credible third party.

Abnormal Interviews: Larry D. Thompson, Author of "The Trial"

Tomorrow marks the release of Texas attorney Larry D. Thompson’s new novel, The Trial, a legal thriller which chronicles the plight of a small town attorney litigating against a fictional international pharmaceutical company. The book’s protagonist, Lucas Vaughn, is a former Houston-based trial lawyer who migrates to a small Texas town to escape the stress associated with his trial work. His plan appears to be working as his health improves and he is finally able to mend his troubled relationship with his teenage daughter, Samantha. Unfortunately, his new found peace is short-lived. After participating in a clinical trial for a drug manufactured by the fictional drug company Ceventa, Samantha contracts severe drug-induced hepatitis. With her life dwindling away, Vaughn takes the fight to the courtroom. During the litigation, he quickly learns that there are no limits to what Ceventa will do to protect its “revolutionary” new drug. You can see the novel’s “book trailer” (complete with dramatic music) here.

We here at Abnormal Use were fortunate enough to have the opportunity to interview Mr. Thompson about his new book and his inspiration for the tale.

Excerpts of that interview follow below:


FARR: The Trial’s protagonist, Lucas Vaughn is a seasoned UT [University of Texas] law grad, Houston-based trial lawyer. Did you see a little bit of yourself in Lucas?

THOMPSON: Not really. There’s more of me in my first novel, So Help Me God. The protagonist in [So Help Me God] is Todd Duncan. He’s primarily a defense lawyer, so there’s more of me in him. [With Lucas Vaughn] I just wanted a character who had been around the courthouse some. I wanted to put him in a small town, so there’s really none of me. And of course, he was a plaintiff’s lawyer and I had been primarily defense. Although, like any defense lawyer, if a good plaintiff’s case comes along and it’s not against the client, then I’m happy to take the case.


FARR: Quality of life and the challenge of balancing a successful career with a good home life are serious issues in the legal community. What does the novel say about these issues – particularly in the context of Lucas and his relationship with his daughter, Samantha?

THOMPSON: Well, I think Lucas Vaughn thought he was being a good father. He was faced with having to raise a daughter by himself and I think he thought that “I provided a roof over her head and three meals a day and see her a few hours now and then,” then that’s what a father is supposed to do. He had the rude awakening when he moved her to San Marcos and discovered that his method of fathering really wasn’t all that good. He moved, and he changed his lifestyle. He didn’t change his method in fathering until Samantha flunked out of [Texas] A&M. It was his romantic interest, Sue Ellen, who finally said you need to change it [his parenting style], and he did. That gave him about a year’s worth of a good father/daughter relationship before she took the drug. My old deceased law partner said once that the “law is a jealous mistress.” And that is, in fact, true. No matter what you’re doing, you cannot let it consume you and you’ve got to find time for family. Actually, you’ve got to make time for family. If you don’t, then you end up with problems with your kids and problems with your spouse.


FARR: In the novel, Lucas represents his daughter as she’s dying of liver failure against the clinical trial physician and Ceventa, the pharmaceutical company that manufactured the clinical drug. How difficult do you think it would be for a lawyer to actually represent a loved one under these circumstances?

THOMPSON: Hugely difficult. I mean, nearly impossible. I wouldn’t recommend it to anybody that they represent a family member. I have some personal experience in that. My brother was a successful lawyer in the eighties. He died way too young. He wrote crime non-fiction. He got sued for libel for a book called Blood and Money in Texas. The first lawsuit was a nothing lawsuit when he lived in Los Angeles. I said, “I’ll handle that for you, and we’ll dispose of it pretty quickly.” Then came two other more serious lawsuits. Suddenly, I’m representing my own brother with three lawsuits, two of which were with very strong plaintiff attorneys. So I had a few sleepless nights as we went through those. We won all three of them primarily because my brother had gotten all his facts right. But to have to represent your daughter when she’s dying is something really that no lawyer in his right mind ought to do.


THOMPSON: I want to make sure that any lawyer that reads this book will think, “Okay, the guy that wrote it really knows something about trials and evidence and what goes on in a lawsuit. It’s not ‘made up.'” From that standpoint, I generally succeed. My first novel had a trial at the end. This one has a trial at the end. The one I’m starting now will end up with a trial. I want lawyers to read it and think, “Okay, this guy really does know something about trying lawsuits.”


FARR: The Trial is about far more than just those proceedings in front of the jury, the trial itself. In the book, you go through the rigors of written discovery, depositions, and pretrial motions. What were the challenges of, not only including a large part of the litigation process in a 300 page novel, but also of making it interesting to the reader?

THOMPSON: That is a challenge. I think the only way it can be done is that you have to – you can’t have talking heads for too long a period of time in any book. The reader is going to get bored when that happens. I think you have to mix in (along with the discovery and the depositions) . . . some scenes that involve a little more conflict, a little more drama, something totally apart from the discovery process itself. I think that’s the only way you can really keep a reader’s attention if you’re talking about discovery and hearings at the courthouse and that kind of thing.


FARR: One of the ways you were able to kind of condense the process, I guess, was to have the trial expedited due to the circumstances surrounding Samantha’s health. I believe that Ceventa had 90 days to prepare for trial. In practice, a case of this magnitude can be in litigation for a couple of years before it ever goes to trial, if at all. Do you think that courts should do more to expedite the process – especially in situations like Samantha’s?

THOMPSON: Absolutely. I think that – having been a trial lawyer for a long time, I think we [trial lawyers] waste far too much time in discovery. I really think that we could cut out about three quarters of it and it would not affect the outcome. I’ve actually got a plaintiff bad faith case against a disability carrier that I’m going to go to trial in September, and I’ve elected not to depose anybody from the insurance company. . . . I’ve just decided I’ve got their claim file. I know where I want to go with it. I’ve just decided that I’ve tried enough lawsuits that I’ll cross-examine them at the courthouse for the first time. . . . Of course, the big problem is that you go up against a big insurance company or a big pharmaceutical company or even a big products manufacturer, and they want to wear down the plaintiff’s lawyer and the plaintiff if they can drag it out long enough. I’ve seen it and know it happens. I’ve done it myself. It may not be the best way to achieve justice, but sometimes the money they’re willing to throw at it can just cause one delay after another.


FARR: In the novel, Ceventa, the pharmaceutical company, takes some pretty drastic measures – bribery, kidnapping, and murder – to not only have their drug approved by the FDA, but also to protect their interests during the course of the trial itself. Obviously, The Trial is a fiction novel, but were you concerned in any way as a defense attorney about the message that this may convey to readers about large corporations and corporate interests?

THOMPSON: Not really. The reason is because I did do a lot of research. Now, short of murder and kidnapping, well, maybe not even that because where I got interested in this subject was I had a doctor who was on the periphery of the VIOXX litigation and that got me interested in it. There’s a whistle blower named David Graham, who still works for the FDA. He’s a medical doctor and he was interviewed when he blew the whistle on VIOXX and all the problems that it was causing with the heart. He was interviewed by CNN and a question was specifically asked to him, “Because you have come forward and taken this position against Merck [manufacturer of VIOXX], are you in fear for your life?” He [Graham] just said, “Well, I try not to think about that. I am going to do what I think is right.” So far nothing has happened. . . . I’m stretching it a little bit when I tie in kidnapping and murder. As far as bribery , there’s evidence that the FDA has – some people on the FDA have taken bribes. It’s not too big a leap to say that a drug company might commit something like that. But, obviously, that’s fiction.


FARR: If you were standing in Audrey Metcalf’s shoes representing Ceventa, would you have handled the case any differently? Are there any things that you may have done that Audrey did not do during the course of the litigation?

THOMPSON: Good question. I don’t think anybody has posed that question to me. . . . What could she have done differently that might have impacted on the trial itself? I think things got out of her hands. I think she was doing a good job as a defense lawyer. She was throwing up obstacles. She had actually kept the clinical trial results out of evidence with a very innovative theory that the results didn’t make any difference because Samantha was participating in the trial itself. I think that she was on the right track until the results of the clinical trial, including the falsified data, came to light through Ryan Sinclair. I think that once that was done the die was probably cast. But I think if that had not come to light, then I think she was on track to win the case. I don’t think she ever – she, herself, did not know that there was fraud involved in the trial itself. So I really think she did a good job. It was her client who was the one that really torpedoed the case.


THOMPSON: . . . [J]ust a matter of desire and self discipline. If once you decide you want to write, if you’re still a full time lawyer, then you have to get up a little earlier in the morning and write a couple of hours in the morning and then go to the office. That’s assuming you’re not in trial. If you’re in trial or getting ready for trial, then you’ve got to set the book aside and you’ve got to focus on your trial. . . . I couldn’t do it when I was in your stage in life [young associate] and I was too busy with . . . trial and family and . . . all the other stuff that was part of the world then. That took up all my time and I couldn’t have possibly written a book then. But, when my youngest [child] graduated from college and I said okay, I think I’ll give it a try.


THOMPSON: I think David versus Goliath always has an appeal. So if you’re going to write a David versus big old Goliath story, you want to make David the protagonist. So – actually, I’ll give credit to John Grisham who’s the master of this genre in that he usually has, at least in some of his early novels, . . . some little guy against a big establishment company industry figure or something of that sort. And they succeeded. So I decided, well, if it’s good enough for Grisham, then I think I will. Nobody’s done one on the pharmaceutical companies really, so if I’m going to do one on the pharmaceutical companies, I don’t want to make the drug companies the good guys. I want them to be the bad guys.


FARR: Do you think it’s possible to tell a story, at least a story that people would actually want to read, where the corporate defendant is the good guy?

THOMPSON: Yes. Actually, I’ll direct you back to my first novel, So Help Me God. It’s not really about a corporate defendant, but I decided that for my first novel I took on a noncontroversial subject. I took on the abortion controversy. I decided I wanted to write a novel that would tell both sides of that without taking sides. I wrote it and I submitted it to a bunch of publishers and agents and, not surprisingly, got rejected by everybody – every single one of them. . . In that I actually presented both sides as evenly as I could. I had two really good, different personalities – lawyers on each side. I wanted to show that the – that lawyers can be professional adversaries, but still not take it personally as we so often see in what we do. . . and that there could be a trial where both sides could have really good lawyers. Both sides could have really good cases to present. Then I thought of a way so that I could end the story without taking a side as far as pro-life or pro-choice, which I did. But that doesn’t quite answer your question about the corporation. Can a corporation be a good guy and a protagonist? I would think probably the best way a corporation could do that is if you made the antagonist the federal government. Most people do not personally align themselves with big corporations. I’ve represented too many in my time, and you have, too. I know you haven’t been practicing very long. Juries usually don’t like big corporations. That’s one of our problems when we defend them.

BIOGRAPHY: Larry D. Thompson is a graduate of the University of Texas School of Law and is a member of Houston’s Lorance & Thompson, PC. While he has tried numerous cases involving products liability, medical malpractice, insurance coverage, and health care throughout his career, in recent years, over seventy percent of his practice has been in the defense of physicians and health care providers.

Friday Links

  • The comic book cover above, that of Green Lantern # 80, published way back in 1970, depicts a newspaper cover alerting the world to the death sentence of Green Lantern, Green Arrow, and an unidentified third conspirator. According to one of the sub-headlines, the judge says the trial was “fair and impartial.” Well, at least there’s that. If you read the excerpt of the article at the bottom of the cover, you’ll see that the charge at issue was “crimes against humanity” and that Green Lantern “protested the evidence and moved for a retrial,” which was denied. It appears the court in question was the Intergalactic Court, Genocide Division. Think they appealed? Let’s hope so.
  • One of our readers writes in to remind us of the late Elizabeth Taylor’s connection to legal history on film. In 1951, following a successful career as a child actress, she appeared in A Place in the Sun, based on the novel “An American Tragedy” by Theodore Dreiser, itself inspired by the criminal case of People v. Gillette, 191 NY 107 (1908). In the film, Taylor played the chief love interest of the defendant, based on Chester Gillette (played by Montgomery Clift), who killed his other love interest (played by Shelley Winters). The prosecutor was played by Raymond Burr, who went on to become far more famous as television lawyer Perry Mason. One notable footnote: In the movie, the death was accidental; in real life, Gillette was executed for the murder.
  • David Post of The Volokh Conspiracy has a pretty interesting blog piece about a federal judge’s rejection this week of the Google Books settlement agreement.
  • If you haven’t heard, legendary bluesman Pinetop Perkins died this week at 97 years old. He was still recording and touring well into his 1990s. Back in the day, he was a member of Muddy Waters’ band. We here at Abnormal Use were fortunate enough to see him in concert just a few years ago in nearby Asheville, North Carolina. It was a good show.
  • The Cleveland Plain Dealer publishes excerpts from a ten page deposition in an open records dispute over the definition of the term “photocopying machine.” It’s got to be read to believe, so we’d advise that you head over there for a chuckle or two.

    Our favorite parts:

    Marburger: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

    Patterson: I just want to make sure I answer your question correctly.

    Cavanagh: Dave, the word “photocopying” is at issue in this case, and you’re asking him whether something is or isn’t a photocopy machine, which is a legal conclusion —

    Marburger: This isn’t a patent case. There’s no statute that defines — where I’m asking him to define technology for me. I’m asking — I want to find out from a layperson’s perspective, not an engineer’s perspective, not a technician’s perspective, but from — I have an idea.

    Patterson: If you’re referring to a type of machine where you place a piece of paper on the top and press a button and out comes copies of it, they usually refer to it as a Xerox.

    Marburger: Have you ever heard it referred to as photocopying?

    Patterson: Not with my generation, no.

    (Hat tip: Overlawyered).

Hall v. Sunjoy Industries and Kmart: How NOT to litigate a products liability case

Growing up, we here at Abnormal Use were told more than once that one can learn more from failures than successes. If that’s the case, the perpetrators of one recent Florida lawsuit may have learned a great deal recently. See Hall v. Sunjoy Indus. Group Inc., No. 8:09-cv-2032-T-30MAP, 2011 WL 589830 (M.D. Fla. Feb. 18, 2011).

The facts are simple. Plaintiff Dorothy Hall sat on a patio chair displayed in the garden center at her local Kmart. The chair collapsed, causing her to allegedly suffer “various injuries, including a painful back condition.” Hall and her husband sued Kmart as the retailer, and Sunjoy as the alleged manufacturer on theories of strict liability for a manufacturing defect, negligence for failing to inspect and test the chair, and negligent failure to warn. They also sued Kmart on a fourth count, res ipsa loquitur for displaying the chair. Both defendants filed summary judgment motions on all counts, as well as a motion to dismiss based on the plaintiffs’ dishonesty during their depositions. The plaintiffs also filed a motion to establish a rebuttable presumption of negligence based on the fact that the chair was not preserved.

Here are the lessons that we can take from this case:

Lesson #1: Make Sure You Sue the Correct Manufacturer. This may be obvious advice, but these plaintiffs could have used it before facing the court on this issue. Apparently, Sunjoy was not the chair manufacturer. In fact, the record was undisputed as to that fact. In order to avoid Sunjoy’s motion for summary judgment, the plaintiffs filed a motion to voluntarily dismiss Sunjoy without prejudice. The court wasn’t buying their trick and remarked:

When the parties have expended considerable resources to fully develop a case, a court may infer that a plaintiff seeks a voluntary dismissal solely to avoid a pending motion for summary judgment.

In those cases, it is appropriate to do as this court did: deny the motion for voluntary dismissal without prejudice and grant the summary judgment motion.

Lesson #2: Hire the Necessary Experts. The plaintiffs’ first count against both defendants was a strict liability claim for a manufacturing defect. Step one in building such a case is to establish that there is, in fact, a defect. Expert testimony is necessary on this issue if the defect is latent, i.e., not obvious, as in this case. In fact, the plaintiffs needed to establish, through expert testimony, that the chair malfunctioned when it collapsed. While this may appear to be an easy question because the chair in fact collapsed, the court explained that “While the chair may have broken after Plaintiff sat on it, this does not automatically mean the chair ‘malfunctioned.'” The plaintiffs also sacrificed their design defect claim by failing to hire an expert who could provide expert testimony about whether or not testing or an inspection could have revealed a design defect. Finally, the plaintiffs’ negligent failure to warn claim failed because of a lack of expert testimony. “A claim that a warning is necessary and that the failure to warn rendered a product unreasonably dangerous and defective requires a warnings expert,” the court noted.

Lesson #3: Vet Your Clients Properly. The plaintiffs also filed a claim of res ipsa against Kmart. The court granted summary judgment on this claim for two reasons: First, the plaintiffs could not prove that the chair was in the store’s exclusive control because it was in the garden department where people, like Ms. Hall, could sit in it. Second, the court held that the plaintiffs had not presented “any evidence that the reason for the chair’s collapse was some act of the Defendants as opposed to Ms. Hall’s excessive weight” of over 350 lbs.

Even more on this point. The court’s opinion in this case included several footnotes alluding to the fact that both Mr. and Mrs. Hall appear to have perjured themselves, in either their depositions or in affidavits, or both. Not only is that a problem for them, but it could be a problem for their lawyers. It appears that the court did not find the legal theories any more admirable than the Plaintiffs, as evidenced by the reference to the Rule 11 motion which was filed by Sunjoy, based on the fact that Sunjoy was not the manufacturer of the chair.

Lesson #4: Keep the Evidence. The plaintiffs also filed a motion asking the court to grant them a rebuttable presumption of negligence based on the fact that Kmart didn’t preserve the chair at issue in the case even after a preservation letter was sent. Apparently, Kmart kept it initially, but discarded it after seven months, thinking the case was “old.” Because the court found no evidence of bad faith by Kmart, it denied the plaintiffs’ motion. Still, this is one of the cardinal rules of defending a products case: keep track of the evidence, or it may lead to a presumption of negligence later.

The McDonald’s Broken Toilet Case

Plaintiffs certainly have high expectations for what McDonald’s should “know” in civil litigation these days. Back in the early 1990s, in the infamous Stella Liebeck McDonald’s hot coffee case, the plaintiff asserted that the fast food chain should have known that the beverage could cause serious harm to a person who did not appreciate the dangers that steaming hot drinks perched in laps could inflict. Now, just last week, an Illinois woman sued McDonald’s based on her claim that the restaurant should have known that a toilet located in its restroom was dangerous.

The Chicago Sun-Times reports that Plaintiff Cherry Hardie has filed a lawsuit against a Chicago-area McDonald’s after allegedly suffering injuries to her left arm and shoulder after the toilet upon which she sat broke underneath her. She has asked for damages exceeding $30,000.00 and claims to have suffered a “shock to her nervous system” and become disabled.

Now, if we were the lawyers taking this Plaintiff’s deposition, we would have a few interesting questions for her. First, we might ask why she thought it was okay to sit down in the first place, given the cleanliness of most fast food chain restaurant restrooms we’ve seen of late. Assumption of the risk, indeed. Next, we might ask what kind of notice she believed the restaurant may have had that a solid piece of commercial-grade porcelain might collapse. Finally, since Ms. Hardie claims she suffered severe, disabling personal injuries as a result of the mishap, we would ask about any prior personal injury suits. In fact, during our cursory online search for a copy of her complaint in this matter, we stumbled across this prior suit. Is it possible that the pro se Cherry Hardie in that prior Illinois lawsuit is the same woman now claiming to be victimized by the McDonald’s toilet? And what injuries was she claiming in this prior suit?

Cynical? Perhaps. But an important issue to explore nonetheless.

The Regulation of Electronic Cigarettes

If you are a fan of Bravo’sReal Housewives of Beverly Hills” series, you will undoubtedly recall the episode featuring the appearance of psychic Allison DuBois at a dinner party hosted by Camille Grammer. DuBois was quite irksome, but surprisingly, not due to the cigarette she puffed at the dinner table. While DuBois’s cigarette caused little conflict at the party, the product has been at the forefront of some intense litigation and proposed legislation in recent months.

DuBois’s “cigarette” was an electronic cigarette or “e-cigarette.” As such, it was a battery-powered device that allows users to inhale vaporized nicotine, minus the tobacco, tar, and carbon monoxide. E-cigarette advertisements claim that the product is “the smarter and safer alternative to smoking” which looks, tastes, and feels like a real cigarette. If true, the e-cigarette could dramatically impact the nation’s health. Apparently, though, the Food and Drug Administration (“FDA”) has its doubts.

The emergence of the e-cigarette presented the FDA with a new opportunity to extend its regulatory reach. However, over a decade ago, the FDA lost its initial bid to regulate cigarettes and smokeless tobacco under the Federal Food, Drug, and Cosmetic Act (“the Act”) via the U.S. Supreme Court’s decision in FDA v. Brown & Williamson Tobacco Corp., 539 U.S. 120 (2000) (holding that Congress had not vested the FDA with the power to regulate cigarettes and smokeless tobacco products). Despite that loss, the FDA has made other attempts to regulate e-cigarettes, and we’ve created the handy list below to summarize those attempts:

  • In 2009, the FDA warned that e-cigarettes contain carcinogens and toxic chemicals such as diethyline glycol (an ingredient used in antifreeze). According to its statement, the FDA was concerned that e-cigarettes would increase nicotine addiction and tobacco use in young people. The FDA began detaining shipments of e-cigarettes at the border. Following the examination of the seized goods, it determined that the product meets the Act’s definition of a combination drug-device product and, accordingly, was subject to FDA regulation. E-cigarette distributors challenged the FDA’s jurisdiction.
  • In January 2010, the U.S. District Court for the District of Columbia granted a preliminary injunction to allow e-cigarette distributors to continue to import their products into the country. Judge Richard Leon agreed with the distributors that Brown prevented the FDA from regulating e-cigarettes. The FDA appealed the ruling, and the D.C. Circuit Court of Appeals issued a stay on Judge Leon’s injunction. (For a more thorough examination of the Court’s decision, see our earlier discussion of that matter here.)
  • In September 2010, the FDA notified five e-cigarette distributors that it was taking enforcement actions against the companies for violations of the Act. The list of violations included “violations of good manufacturing practices, making unsubstantiated drug claims, and using the devices as delivery mechanisms for active pharmaceutical ingredients like rimonabant and tadalafil.” In addition, the FDA announced its decision to regulate e-cigarettes as combination drug-device products. As a consequence of regulation, e-cigarette manufacturers would be required to comply with the FDA’s drug-approval process.
  • On December 7, 2010, the D.C. Court of Appeals affirmed the district court decision and held that the FDA lacked the authority to regulate e-cigarettes under the Act as drugs or devices. In addition, the D.C. Court of Appeals held that the FDA may only regulate the marketing of e-cigarettes pursuant to the Tobacco Act.

While the FDA may have been unsuccessful in its legal battles thus far (the FDA is considering an appeal), several states are considering regulating, or in some instances banning, e-cigarettes. Recently, New York took the first steps to becoming the first state to ban e-cigarettes, passing a proposed bill through the Health Committee of the New York Assembly. The bill’s sponsor, Assemblywoman Linda Rosenthal, indicated she wanted to proscribe e-cigarettes until they undergo more investigation and regulation. Assembly Health Committee Chairman Richard Gottfried has urged e-cigarette manufacturers to prove to the FDA the legitimacy of their “smoking cessation” claims.

Rosenthal and Gottfried may have a point: e-cigarettes may pose some yet-to-be-determined health hazards. It is interesting that the FDA and state legislatures have become so adamant at this stage about banning a cigarette alternative. While we may not know the ill-effects, if any, of vaporized nicotine, we do know the risks associated with tar, tobacco, and carbon monoxide. There is always a risk that e-cigarettes can lead to hazards more significant than cancer and emphysema. However, it seems counter-intuitive to protect consumers by banning a product which may have risks in favor of one we know poses the threat of serious illness.

We can all relate to the fear of the unknown. On the one hand, we may discover in the future that the conservative approach of the FDA and the various state legislatures was proper. On the other hand, we may discover Allison DuBois knew what was safe all along. After all, she is a psychic.

Juror’s Failure to Disclose Family Member’s Similar Injury Involving Similar Product Did Not Warrant New Trial

Last month, a New York federal court ruled that a prospective juror’s alleged failure to disclose in a products liability suit that a family member of his had been injured under circumstances similar to the plaintiff’s, while using the same product, did not warrant a new trial. Leibstein v. LaFarge North America, Inc., — F. Supp. 2d—, No. CV-06-6460, 2011 WL 499952 (E.D.N.Y. Feb. 14, 2011). The case involved a plaintiff who allegedly suffered third-degree burns to his knees while laying a portland cement product in his basement. He filed suit on theories of strict liability and negligence, and his wife joined the suit with a claim for loss of consortium.

The jury returned a verdict in favor of the plaintiffs in the amount of $125,400. Interestingly, it was the plaintiffs who alleged that a new trial was warranted based on the juror’s alleged failure to disclose during voir dire a similar injury to a family member. The Court noted that the request “presumably was triggered by plaintiffs’ disappointment as to the size of the award.”

The plaintiffs’ motion for a new trial was based largely on information supplied in an affidavit authored by the injured plaintiff’s wife. According to her submission, she spoke with several jurors following the trial during which time she became aware of facts previously undisclosed. Specifically, she learned from these jurors that another juror, “juror number four,” had disclosed during deliberations that a member of his family similarly had been burned while using a portland cement product. The juror failed to disclose this information, in spite of the fact that this information was responsive to questions asked of the jury panel on voir dire.

One might initially wonder on what theory the plaintiffs would hang their hat. It certainly seems as though the defendant would be most prejudiced by the fact that a juror’s family member was injured in the same way as the plaintiff allegedly was. The plaintiffs’ theory was this: “Most probably, this person did not bring a lawsuit or receive any compensation” and, accordingly, the juror was unsympathetic to plaintiffs’ claims. Although it is unclear what damages were submitted by the plaintiffs to the jury, it certainly doesn’t seem that $125,400 was entirely “unsympathetic.” In any event, the court disagreed with the plaintiffs’ allegation that had this information been disclosed by the juror, there would have been valid basis for a challenge for cause.

Thus, the court held that a new trial was not warranted, and the verdict should stand. The court based its ruling on the fact that there was no dispute at trial that an improper use of portland cement could cause burns. This was therefore not an issue at trial. Rather, the “crux of the liability dispute” was whether the packages of cement purchased by the plaintiff contained adequate warnings of that hazard. Accordingly, the information was not sufficient to warrant a new trial. Furthermore, the court held the “sketchy, second- and third-hand information” provided by the plaintiffs did not warrant a post-verdict inquiry into the juror. The court concluded instead that the $125,400 “verdict fits comfortably within the realm of reasonableness.”

Friday Links

Wonder Woman is arrested by a police officer in the comic book cover above, that of Super Friends # 40, published back in early 1981. We think we know how this story will end, as we previously wrote about a Wonder Woman encounter with the judicial process when she was forcibly removed from a courtroom for disruptive outbursts. In this altercation, Wonder Woman exclaims that she has “done nothing wrong,” although Superman’s response is puzzling. He remarks “We know Wonder Woman is innocent – but we can’t prove it!” Does the Man of Steel not know of the presumption of innocence?

Speaking of which, friend of the blog and law professor Mark Osler (who we once interviewed here for our Abnormal Interviews series) recently claimed on his own blog that Batman went to Yale Law School. We’re not so sure about that, but okay.

How can you not read this post by John A. Day, of the Day on Torts blog, which begins with the following sentence: “A plaintiff in a slip and fall case in New York was permitted to testify as an expert on pigeon droppings.” There’s a Daubert joke in that tale, but we can’t quite get there.

We’re crestfallen that we neglected to include Husker Du’s “Sorry Somehow” in the list of rock songs about lawyers and the law we posted this past Monday. That 1980s college rock classic includes the immortal line, “Send me a subpoena, baby, tell me what to do.”

In light of our love of the character, we direct you to a post at the Legal Profession Blog entitled “Calling Jackie Chiles.” The post is not about “Seinfeld,” but rather the dismissal of a personal injury suit arising from an accident at a Starbuck’s.