Expert Witness Testimony: The Difference Between Testing Scientific Principles and Determining Cause

We can’t resist writing about recent judicial opinions in which a Plaintiffs’ expert is excluded, and last month, the Eighth Circuit affirmed a lower court’s decision to do just that. In Dunn v. Nexgrill Industries, Inc., —F.3d —, 2011 WL 668062 (8th Cir. Feb. 25, 2011) [PDF], the Eighth Circuit considered whether the trial court abused its discretion when excluding the testimony of an expert witness as well as the trial court’s granting of the defendant’s summary judgment motion. In so doing, the Eighth Circuit held that 1) the district court did not abuse its discretion in excluding the Plaintiffs’ expert’s testimony, and 2) that without the expert testimony, the plaintiffs could not establish that the grill was unreasonably dangerous or defective. As a result, the Court affirmed the trial court’s rulings.

Thomas and Thelma Dunn filed a complaint against Nexgrill Industries, Inc., the designer, manufacturer, and seller of a propane grill they claim caused a fire at their home. They claimed that the grill was defectively designed, such that the grease tray came into contact with the rubber regulator hose, which melted and allowed propane gas vapors to escape and ignite.

To prove their case, the Dunns presented the testimony of purported expert Randy Bicknese. He attended the initial investigation into the cause and origin of the fire, which determined that the fire originated in the bottom cabinet of the grill and was caused by the escape of propane gas from the fuel delivery system. Bicknese also conducted additional tests by using a used grill of the same make and model, since the specific grill at issue was no longer manufactured. In his affidavit, Bicknese stated that the purpose of the testing was as follows:

. . . to establish certain scientific principles: (1) to determine whether or not the propane hose can deteriorate sufficiently to leak when in contact with the grease tray during grill operation; (2) to determine if propane leaking from the deteriorated hose can be ignited by the operating burner; (3) to determine if a propane hose fire in the cabinet can be sustained after the burner controls are turned off; (4) to determine if a propane hose fire in the cabinet is readily detectable from outside the grill with the grill lid open and the cabinet door closed; (5) to document the operating characteristics of the grill’s propane distributing system; (6) to determine the consumption rate of the propane hose as a result of the ignited leak.

Bicknese also performed a subsequent round of testing, after which he reported that “the second test continued to support his theory that the fire was the result of the deterioration of the rubber propane hose caused by contact with the heated grease tray.”

Nexgrill filed a motion to exclude Bicknese’s testimony and testing, which was granted because in the opinion of the district court the testing “was done to recreate the fire at the Dunns‘ residence to determine the cause of the fire, not to test scientific principles.” The court further concluded that the test was not substantially similar to what happened during the fire at the Dunns‘ house. After the court excluded Bicknese’s evidence, Nexgrill filed a motion for summary judgment, which was also granted.

The Eighth Circuit affirmed the ruling, finding that the district court had not abused its discretion. As that court noted, “The Dunns‘ main argument is that the tests were conducted to test scientific principles and Bicknese’s hypothesis, not to show exactly how the accident occurred.” Although the line between these two testing principles is “very difficult to draw,” the Eighth Circuit determined that it was unable to say that the lower court abused its discretion.

Without expert testimony, the Dunns were in a real pickle in terms of proving that the grill was actually defective. They tried the only route they had left: they argued that they should be allowed to present circumstantial evidence of the products defect, despite the fact that they failed to plead res ipsa in their complaint. The Eighth Circuit prohibited this type of proof not only because of the improper pleading, but also because “grills are designed specifically to ignite,” and therefore, the fact that the grill actually ignited did not prove a defect. As a result, the Eighth Circuit affirmed summary judgment for Nexgrill.

Asbestos Exposure, Summary Judgment and Replacement Parts

Just this past Monday, in Massachusetts, that state’s appellate court released an asbestos causation opinion. In most states, to prove causation in an asbestos case, the plaintiff must establish (1) that the defendant’s product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant’s product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). Whether or not the plaintiff had established these three elements was the issue in Morin v. AutoZone Northeast, Inc., — N.E.2d —, 2011 WL 834160 (Mass. Ct. App. March 14, 2011).

From 1952 to 1991, Geraldina Medeiros and her husband Anthony Medeiros ran Bedford Fruit Company. Fifteen years later, Ms. Madeiros died of malignant mesothelioma. Her daughter, as the administratrix of her estate, sued approximately forty (yes, that’s 40) defendants, mostly brake manufacturers which the plaintiff asserted had exposed the decedent to asbestos fibers in the course and scope of her work around the delivery truck and trailer. Although some defendants settled with the estate, many defendants moved for summary judgment on the issue of causation. After the motions were granted, the plaintiff appealed the ruling as to three defendants: AutoZone Northeast, Inc., Great Dane Trailers, Inc., and Orleans Auto Supply, Inc.

As the Court of Appeals pointed out, the main issue before it was that of causation:

Several characteristics of the generation of disease and death by asbestos inhalation have moved courts to adapt the standard of proof of causation. Those characteristics are the prolonged latency of the induced disease, the multiple points of exposure of the victim, and the indistinguishability of contributory exposures. Because the resulting injury may not emerge for years or decades after exposure, the law does not require the plaintiff or his or her witnesses to establish the precise brand names of the asbestos-bearing products, the particular occasions of exposure, or the specific allocation of causation among multiple defendants’ products. Evidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant’s asbestos-containing product for an appreciable period of exposure.

So, the crux of any asbestos suit is this: the level of exposure to asbestos in a particular product, and the duration of the exposure. The Court of Appeals affirmed summary judgment for Great Dane Trailers, but reversed as to Orleans and AutoZone.

The case itself is pretty straightforward in terms of its analysis, but it highlights one of the hot topics in asbestos litigation right now. (Yes, apparently there are still “hot” topics in asbestos law, after more than thirty years!) The decedent’s exposure to asbestos brake pads and linings from these three defendants occurred during brake jobs where the asbestos-containing parts were replaced. What liability does an original manufacturer have for replacement parts? If we assume that the manufacturer knew that the brake parts on the truck and the trailer used to transport fruit would have to be changed, and would likely be replaced with parts containing asbestos, what liability does that manufacturer have? Watch this issue to be raised again and again in your state.

Abnormal Interviews: Robert W. Cort, Carolyn Shelby and Christopher Ames, Makers of the 1991 Film, "Class Action"

Twenty years ago today, on March 15, 1991, the film Class Action was released to theatres. Directed by Michael Apted, written by Carolyn Shelby, Christopher Ames, and Samantha Shad, and produced by Robert W. Cort, Ted Field, Scott Kroopf (as well as Shelby and Ames), the film chronicles a products liability suit involving an allegedly defective station wagon, which when struck from the rear when the left turn signal is operating, bursts into flames. Essentially, the lawsuit is a fictional version of the famous Ford Pinto litigation. However, the real conflict in the film was familial in nature: Big Law corporate defense attorney Maggie Ward (Mary Elizabeth Mastrantonio), who represents the automotive company in the suit, is the estranged daughter of Jedediah Tucker Ward (Gene Hackman), the flamboyant plaintiffs’ attorney who brought the suit. Watching the film twenty years later, it’s notable that it made a real attempt to accurately depict the legal process. There are scenes featuring a motion to compel hearing, a discovery document dump, a contentious Plaintiff’s deposition, and ethical dilemmas aplenty for both sides of the bar. Interestingly, the film uses each legal sequence to further and elaborate upon the strained relationship between the father and daughter.

We here at Abnormal Use were fortunate enough to obtain an interview with producer Robert W. Cort and writer-producers Carolyn Shelby and Christopher Ames.

Excerpts of that interview follow below:


SHELBY: It was really a tribute to, well first of all, Michael Apted, the director, [who] came from the documentary world. And he was very committed to doing as honest a depiction of the legal process as you can in a movie. There just has to be some, artistic license to be taken, but he got technical advice, and I was very happy when the movie came out. For years thereafter, various and sundry legal journals would do ratings of movies, and Class Action would always be rated very highly, and the overwhelming reaction was that it did as good a job as was possible to depict the legal process. I was very proud of that because we did work very hard, and we had the luck of a documentarian as our director and the luck of time and the luxury of time to do as good a job as humanly possible when you have to make a story have a true line and you’ve got to focus on characters.


DEDMAN: Looking back twenty years, what are your thoughts on the film and how it was received as a courtroom or legal drama?

CORT: . . . [O]ne could never get this movie made today . . . Movies in which the ambiguities, the ambivalences, the grays of the world, in which character rules over plot, are almost impossible to get made. The business has changed so much, and I often say that one of the really fortunate things in my career is that I had my career at a time when I could do movies like Class Action, and I have such fond memories and [am] so proud of it. . . . Its really core idea is a relationship between a father and a daughter. It takes the kind of classic, Father of the Bride relationship between a father and a daughter and puts it into, a much darker, much more interesting context and plays out family dynamics as it affects the story.

. . . [W]e began to realize that the father/daughter dynamic was just really a fascinating thing, and then the surrogate son in the part played by Laurence Fishburne became a really interesting character [in conjunction with] the divided loyalties of the daughter. I look back and I’m struck by the ambition of the movie . . . .

SHELBY: . . . When we wrote Class Action with Robert, we went through five years of working [and] did 25 drafts. And that allowed us to go quite a while going in different directions and exploring different ways to do it. You can’t do that now. People make their decisions after one draft or so as to whether or not it’s going to get made.

. . .

CORT: [W]e were incredibly fortunate to be able to develop this in a way outside of the studio. We did develop it completely outside of the studio framework, and we sold it to Fox ,but we were not forced to go through a process. . . . Even in the eighties, even in the nineties, they kind of took the flesh off of anything. So, and I think if you want to look at that, most, many, many, many really wonderful movies were sort of developed outside the studio system.


DEDMAN: How did Gene Hackman and Mary Elizabeth Mastrantonio become involved with the project?

CORT: . . . Gene was always kind of in our mind. We wanted a very powerful character who played against the Henry Fonda of that character . . . We wanted someone who had been toughened and was tough because that’s who those people are; they’re not saints. They’re rough people even if their passions will have been shaded over into obsessiveness. And if you look at a lot of Hackman’s roles, going back to Popeye [Doyle] and The Conversation, you see a character in pursuit of what he believes is right [who] will go to any length and ignore everything else, including, in this particular case, his daughter.

. . . I had seen Mystic Pizza, and there was an enormous amount of heat about this young actress and it was, of course, Julia Roberts. We had given it to a few other major actresses and we’d been passed on . . . The character had a lot of gravitas and huge intelligence and a fair piece of alienation even though she was working very much within the system. . . . Michael Apted and I and Scott and Chris and Carolyn met with Julia, kind of saw what she was like, and she desperately wanted to do the movie. And we really believed in her. I was friendly with the people at Disney and knew that they had not released Pretty Woman yet, but that they were through the roof on the movie. They thought that she was going to be the biggest movie star around and she desperately wanted to do it, we wanted her, Joe Roth, who was the head of Fox, just didn’t believe in her, and he just kept fighting us and fighting us and he said “Well, all right maybe.” And we thought, “Oh my God, we’re going to get her.And then he called me one day, and he said, “Forget Julia Roberts.” He said, “I have just seen the biggest movie star of her generation.” And he had just come from a screening of James Cameron’s The Abyss, in which Mary Elizabeth starred. Mary Elizabeth had been in, at that time, The Color of Money, in which she was great. She’s a terrific actress, absolutely a terrific actress. We couldn’t see the movie because Cameron wouldn’t show us. We never got to see it. Joe was sure it was going to be titanic. Obviously, it turned out not to be titanic. He said, “You’ve got to go to her, and if she doesn’t do it, all right you can use Julia Roberts.So, we made the offer, she was represented by a man named Sam Cohn, who is a legendary agent in New York, and he gave it to her, and she delayed, and she hadn’t read it. I kept calling, and I said, “Sam, we need an answer ,”and he said, “Yeah, I’ll get you an answer.” I called Roth, and I said, “Look, we’re just getting jerked around, let us go with Julia.” He said, “All right, I’m calling Sam. If she doesn’t commit to it by noon on Friday, noon L.A. time, 3:00 in the afternoon in New York, go with Julia Roberts.” I absolutely kid you not, at 11:55, the phone rang in my office in L.A. and it was Sam Cohn saying “All right, Mary Elizabeth will do the movie.” So, by five minutes, we missed the part being played by Julia Roberts. And I think that it wasn’t just, in my opinion, the fact that Julia Roberts became this enormous star, and we would have been following Pretty Woman, [adding] incalculable value to that. But I think that Mary Elizabeth is a very dramatic actress, and she always went for the very dramatic and the very hard. And Julia, by nature of who she was and what she brought to it, always had that vulnerable, softer quality. And I think it would have been, opposite Hackman . . . it would have taken the movie, perhaps from a commercial standpoint, to another dimension. And the great story was that she got so mad that she went to see Joe Roth and said, “You didn’t believe in me,” and she and Joe Roth became unbelievably good friends. Basically, I didn’t talk to her again until she did Runaway Bride for us.


DEDMAN: The Maggie character is an interesting one because she is both a young lawyer who wants to make partner, but also a woman in a profession that is dominated by men ,particularly at that time. How do you think the film addresses those issues, and do you think that’s changed in the last twenty years?

AMES: We talked a lot about this in the development of the script. . . . [W]e hung a lantern on that very issue with one particular piece of dialogue between her and her lover, who was also her boss, where she said “I want to make partner on my own, it’s different for a woman in a firm.” I’m not so sure that’s the case anymore. I hope it’s not the case. But certainly in those days, particularly because she was sexually involved with her boss, there was a tremendous stain that she was trying very, very hard to stay away from.


DEDMAN: You mentioned the film does portray not just the actions of lawyers in the courtroom but also how some of what happens in the courtroom bleeds into the family life. How many of Jed’s issues with respect to how he relates to Maggie are the result of him being a lawyer as opposed to him just being who he is as a person?

AMES: Well, I don’t think you can necessarily divorce one from the other. It strikes me with Jed that his was a gigantic ego and that informed everything he did, both in his own family and in court. Jed was the kind of character who believed that he could get away with anything just because of the sheer strength of his character. One of the things that we talked to Robert about from the very first day we started developing this script was that we were going to make him a “people’s lawyer” and her a “corporate lawyer.” We had to give each of them significantly large other dimensions to their lives which is why we made him morally compromised and why we made her somebody who second guessed her own decisions.

CORT: Look at Martin Luther King and his sexual peccadilloes. People of that ego, whatever they’re doing, they’re doing it for the right reasons or they tend to believe they are. There is so much testosterone in those people, so much drive, that they need sort of eat everything in their path. I think he was a hugely compelling character in that movie. I never knew anyone who ever said anything other than he felt real.

AMES: He was patterned on some real people. There was a little of Alan Dershowitz in him. There was a little of Tony Serra in him, too. As a matter of fact, the office that you see Jed in – his “office” was Tony Serra’s office – complete with the ashes of a former drug dealer/client [which] was sitting on the desk.

SHELBY: That was put to death by order of the court. And there was artwork all over from prisoners in prison who were using their served out time to paint art.

AMES: So we did have real models out there. Bill Kunstler was a model for him, also. He probably came closer to Kunstler than anybody else.


DEDMAN: What kind of reactions have you gotten from lawyers over the years about the legal elements of the film?

SHELBY: . . . [W]e used to go to theaters that were showing it, and we would come in, all the theaters got to know us, we would come in the last ten minutes of the movie . . . follow the people out and listen to the comments. And we always gravitated toward the lawyers who would be in great debate as they left about [whether the conduct depicted was] ethical. “Could they do this ?” and it went back and forth, and it was hysterical to listen to. But this was wonderful, because there was such huge debate, and these lawyers were having the time of their lives trying to analyze the movie and mainly coming out very positively.

AMES: Perhaps the highest compliments I ever got about the movie was my daughter called me breathless one day from George Washington University . . . to inform me that the plot of this movie was being taught in one of her classes that day and she about fell out of the chair.


DEDMAN: . . . [T]here is sort of a debate about some of the ethical decisions made by the lawyers in the film. What Maggie does at the end is probably something she feels is right but may be something that would get her in trouble with the disciplinary authorities.

AMES: I’ve heard arguments for twenty years on both sides of the issues. There are two issues that people always raise about it. Number one is that and number two is whether a father and daughter really could go up against each other in court, and we were scrupulous in our desire to make this an accurate movie.

SHELBY: We also found it was fun during the process of researching and writing it, particularly towards latter stages. At every stage, we wrote a draft that went to the studio, got a response from the legal department who would tell us do this, do that, this isn’t [accurate], and so we would adapt appropriately. So all the way through the process we were getting notes from attorneys, and ironically, we finally hired . . . a technical adviser two weeks before we were going into production. And he was not an entertainment attorney, he was a products liability attorney, and he said, “Well, [I] really loved the script, but it’s not a class action.How could this be! We came to realize that “Oh, wow, these lawyers are very specialized in their knowledge level, and all these attorneys that we’ve been talking to have not been in the field that was appropriate.” So we then talked to three different class action attorneys who read it and promptly gave us some notes to truly make it accurately a class action. . . . [B]ut the technical advisor, who was a products liability attorney, kept saying, “No, they’re wrong, it’s not a class action.”

AMES: And I must say in the years since the release, no one has ever suggested it wasn’t a class action.


DEDMAN: There is a scene where Maggie is deposing the plaintiff who is played by Robert David Hall, and in it, she seems troubled that she has to ask him about past accidents and some pre-existing psychological issues that he has related to automobiles. Why is she troubled about that approach?

SHELBY: That that scene was rewritten to death. Every single day for five years, we rewrote that scene.

AMES: A fair amount of that deposition came to us from David Hall who was a friend of mine prior to the filming and when I got David scenes to do the part and David talked about the two-day deposition that he had had where the attorneys for, I think it was Volkswagen in that case, had grilled him over and over asking him the same questions over and over just slightly rephrased and how agonizing it had been for him. I thought always with Maggie was that there was a bit of her wanting to have her cake and eat it, too. That she wanted to be a powerful corporate lawyer, but she wanted to be a partner, but that she had perhaps too many moral qualms about what you had to do to people. There’s a scene just subsequent to that in a bar where she identifies herself as a professional killer. That’s how she saw herself behaving in there [at the deposition], and frankly, the scene that she played just before that with [the character of] Quinn, the main partner in the firm, who said, “I want him eliminated as a viable witness in this case,” she was not so much deposing him as she was destroying him.

SHELBY: . . . [W]e needed to see her be hard and be the good soldier and do what she needed to do. But we also, as the audience, we needed to have her do it in such a way that we wouldn’t hate her. We just would not hate her for the rest of the movie. And that is a balancing act that’s very difficult to write.


DEDMAN: [T]here have been a number of films since Class Action was released that address this sort of products liability complex litigation class action context. What is it about those types of lawsuits that make them a good backdrop for films?

CORT: It’s always a greedy, irresponsible, immoral force against people who can’t really defend themselves and somebody standing up to them. That’s been at the heart of movies since Mr. Smith Goes to Washington back in the thirties. There’s been this kind of war in America so to speak between the enormous kind of secret respect we give to people who travel and become famous and rich and powerful and this hatred we have for people who trample our rights and the rights of the defenseless. So, I think thematically this has been a part of our society and hence been a part of movies ever since. You don’t see that much of it in major Hollywood movies any more because I think the sense in Hollywood is that the courtroom drama has been completely taken over by television and they just don’t want to do it. . . . But it’s not a staple of Hollywood film any more because Hollywood film is so dominantly about the created world and fantasy worlds that are aimed at sort of all ages audiences and most importantly are aimed overseas. And one of the problems with doing courtroom drama or doing a class action lawsuit like this is that it doesn’t travel well because the laws of other countries are different, the things that are crimes here and not necessarily crimes abroad . . . . So, I think the foreign or the international demands of the business mitigate against anything other than the guy who kills somebody is wronged kind of thing. So I think class action kinds of stuff is, or products liability are becoming more difficult to make work.


DEDMAN: Two of the actors in your film went on the play Presidents of the United States. Donald Moffat in Clear and Present Danger and Gene Hackman in Absolute Power and Welcome to Mooseport and then Fred Thompson [who played a corporate representative in Class Action] actually ran for President. Is that a coincidence?

CORT: If I’m not mistaken, Donald Moffat also played LBJ in a movie.

DEDMAN: That was before Class Action. Is there a presidential coincidence there?

AMES: I’ll answer that question with a line from a review that I read shortly after the movie came out, where a reviewer was pontificating about the movie and actually liked it, but said “Can it be a coincidence that Maggie’s father’s first name is the same as the first name of the second in command in Citizen Kane?” And I read it and out loud I said, “Yes, it can be.”


DEDMAN: One thing that is always on the forefront of discussions in lawyer magazines and publications is the quality of life issue and how lawyers who are traditionally workaholics can achieve some type of balance between the work they need to do and their obligations to their family. What do you think that the movie says about those issues in light of the strained the relationship between Jed and Maggie?

AMES: If given his choice, Jed would always be working. Jed is a classic workaholic ,and Maggie has inherited that. I also think that the lack attention that Jed and probably Maggie to paid to their familial relationship growing up was something that was bound to bear fruit later on down the line and also put the mother in the position of being the arbiter between these two.

SHELBY: There’s no question that workaholism has worked a great deal on Maggie and Jed and really, I think, many achievers in our country, I don’t know any great thing to say about it except it’s just reality. And I think it’s worse now for attorneys than ever with the decline in opportunities for employment. I would not want to be an attorney. Of, course being a screenwriter wasn’t that far off.


DEDMAN: You mentioned that part of the appeal for some of the movies that have been released over the years depicting these types of lawsuits is the David versus Goliath angle – the powerless taking on powerful interests. Do you ever think there will be a film, or is there a way to tell a story, where the large corporate interest isn’t necessarily the bad guy in the lawsuit?

SHELBY: Well, definitely. Good drama is the gray part where you can be ambivalent about who is the good guy and who is the bad.

CORT: I’m not sure where the story is when Goliath beats David. So I don’t know, I’m not, I don’t quite see that.

AMES: What we have here, Jim, is the perfect differentiation between a producer and a writer.

AMES: I think the writer is saying, “Now, wait a minute, this could be interesting. Let’s make this dog dance.”

DEDMAN: Well, is it just that the stakes are not as high if the big company . . .

CORT: You’re suing them and you falsified your claim to make them look bad, I guess. But I don’t really see that. . . . I don’t know what I’m watching there or what I’m supposed to feel. You know, there’s again, I think “The Good Wife” does a lot of ambivalent stuff.

SHELBY: There’s always a bigger firm that is more corrupt, you know?

AMES: There’s the movie: A firm that thinks of itself as being completely corrupt and then comes up against somebody who’s more corrupt.

CORT: Yeah, but then it’s like a pox on everybody . . . Who cares?


DEDMAN: I have to ask [Chris and Carolyn] about “Hysteria – The Def Leppard Story.” How did you get involved in that and how did you prepare to write that script?

. . .

AMES: [Our agent] said “I have this strange news for you.” She said “I’ve put you up for all kinds of projects which you would have been absolutely perfect for and you haven’t gotten them. As a group, I put you up for this and they jumped through hoops to get you.”

SHELBY: We had done a movie that was a TV movie that had not been made on, was it Marge Schott or was it – we had become kind of pigeon-holed in doing autobiographical stories or real stories about people and doing them in a way that, generally, most of the people were proved despicable but we did them giving them the benefit of doubt and depicting their background so that people could understand how the Marge Schotts of the world could happen and characters like that. And so they had read Marge Schott and they had read a project for Proctor & Gamble and they loved that we were able to take [on a] very complex context. We also did a thing on the Olympics bid in Utah and how it was achieved . . . . And they loved how we were able to take very big concepts and compress them into something with a story like that we could do in an economic amount of time. But we were so wrong on every other level . . . we were just too old and you wouldn’t think of us to write this and I had a classical music background. . . . I think one of the things that they did like about us was that we weren’t huge Def Leppard fans . . . . We were going to ask the hard questions and we were going to do our best to make it a compelling story without making it too syrupy.

[EDITOR’S NOTE: Mary Elizabeth Mastrantonio, through her agent, declined a request for an interview. Samantha Shad, one of the writers, also declined our request for an interview.]

Gallivan, White, & Boyd, P.A. Opens Charlotte, North Carolina Office

Big news today from GWB headquarters. We are opening an office in Charlotte, North Carolina. Here’s the text of our preliminary press release on the matter:


Greenville, S.C. – Gallivan, White and Boyd, P.A., headquartered in Greenville, S.C., is pleased to announce that it is opening an office in Charlotte, N.C. The firm was founded more than six decades ago in Greenville, S.C. and is one of the Southeast’s leading litigation and business law firms. C. William McGee, the firm’s Managing Shareholder, stated, “We have seen a significant increase in the demand for our services in North Carolina. Our new Charlotte office will allow the firm to serve our clients more effectively and efficiently throughout the region. We look forward to providing our clients with a full array of business and litigation services throughout the state.”

With 44 attorneys and 56 support staff, Gallivan, White & Boyd was ranked by Chambers USA in 2010 as a leading law firm for business. The firm was also ranked by U.S. News and Best Lawyers as a Best Law Firm. Its new office, located in SouthPark at 5960 Fairview Road, opened in March, 2011.
More details to come shortly.

Songs about Lawyers, Judges, and Attorneys

Over the last few months, we here at Abnormal Use have corresponded regularly with our friends at the Drug and Device Law blog, most notably Steve McConnell and Jim Beck, about both the law and popular culture. The subject of our conversations inevitably turned to music, a topic held dear by us all. Although our two blogs have previously quibbled on musical issues, we were elated to hear that Steve is a big fan of Bruce Springsteen and the late, great Arthur Lee. We have also learned that Jim Beck has a keen knowledge of The Rolling Stones. Over the course of these many discussions, we decided we would combine our two topics of interest – the law and music – and cobble together a list of songs, both popular and obscure, about the law and lawyers.

Steve and Jim took the first stab at a list, and they were kind enough to give us a sneak preview. Accordingly, armed with the knowledge of the songs they selected, we here decided that we would attempt to expand that list, rather than repeat what they listed. So, we won’t be including tunes like Warren Zevon’s “Lawyers, Guns, and Money” or Jackson Browne’s “Lawyers in Love,” because Steve and Jim beat us to those and several others that come to mind. See here for their thorough and entertaining list that they posted this morning (at the very same moment our post went live), and couple that with our list below. You can then fill your own iTunes library until it’s full with tunes about attorneys, jurisprudence, and the hallowed halls of courthouses.

We’ll start with a list of songs which happen to mention the law or lawyers

AC/DC – “Rock ‘N’ Roll Singer” (“My Daddy was workin‘ 9 to 5 when my Momma was havin‘ me / By the time I was half alive I knew what I was gonna be / I left school and grew my hair / They didn’t understand / They wanted me to be respected as a doctor or a lawyer man/ But I had other plans”)

The Auteurs – “Underground Movies” (“She’s got a credo in underground movies / Her father is a lawyer / Who paid for the fitting and fixtures /And a house with bay windows.”)

B.B. King – “She’s My Baby” (“Hey, she’s my lawyer when I’m in trouble.”)

Beastie Boys – “Car Thief” (“Said good-bye to my girl, my lawyers, and accountants.”)

Belle and Sebastian – “Legal Man” (“Not withstanding provisions of clauses 1, 2, 3, and 4 / Extend contractual period, me and you for evermore.”)

Bob Dylan – “Cry A While” (“I might need a good lawyer, could be a funeral mad trial.”)

Bob Dylan – “Walls of Red Wing” (“Oh, some of us will wind up in St. Cloud prison / And some of us’ll end up to be lawyers and things / And some of us’ll stand to meet you on your crossroads / From inside the grounds of the walls of Red Wing.”)

Bon Jovi – “Blood on Blood” (“Now Bobby, an uptown lawyer Danny, a medicine man / And me, I’m just the singer in a long haired rock ‘n’ roll band / Through the years and miles between us it’s been a long and lonely ride / But if I got that call in the dead of the night, I’d be right by your side.”)

Bruce Springsteen – “Atlantic City” (“The D.A. can’t get no relief.”)

Bryan Adams – “Not Guilty” (“Do I have to prove my innocence? / Don’t need a lawyer with a fat degree / Cause if lovin‘ you is against the law / Then you better lock me up and throw away the key.”)

Camper Van Beethoven – “Good Guys and Bad Guys” (“Well there are good guys and there are bad guys / And there are crooks and criminals / There are doctors and there are lawyers / And there are folks like you and me.”)

Carly Simon – “Coming to Get You” (“Lovers and lawyers in Arkansas / Laid down the law.”)

Chuck Berry – “Brown Eyed Handsome Man” (“Arrested on charges of unemployment / He was sitting in the witness stand / The judge’s wife called up the district attorney / Said you free that brown eyed man / You want your job you better free that brown eyed man.”)

Chuck Brodsky – “Talk to My Lawyer” (“I was walking outside of City Hall – I slipped and I had a terrible fall / It was negligence on the part of I don’t care who / I fell so hard I was seeing stars / Dollar signs and men from Mars / And the man who helped me up said I ought to sue / He was a lawyer, he was all out of breath.”)

The Clash – “Guns on the Roof” (“Sue the lawyers and burn all the papers / Unlock the key of the legal papers / A jury of a billion faces / Shouted out condemned out of hand.”)

The Clash – “Midnight Log” (“Cooking up the books / A respected occupation / The anchor and foundation of multi-corporations / They don’t believe in crime / They don’t know that it exists / But to understand / What’s right and wrong / The lawyers work in shifts.”)

The Coral – “Liezah” (“So, lawyers doctors please beware of that girl with wavy hair / She will cut you down to size / Reveal the truth behind your disguise.”)

Creed – “My Own Prison” (“A court is in session / A verdict is in / No appeal on the docket today / Just my own sin.”)

Dance Hall Crashers – “Sue Us” (“I heard you had a mind to sue / Why I don’t know? / I guess your lawyers will tell us.”)

Dave Frishberg – “My Attorney Bernie” (“I’m impressed with my attorney Bernie / I’m impressed with his influential friends.”)

David Bowie – “I Have Not Been to Oxford” (“And the prison priests are decent / My attorney seems sincere / I fear my days are numbered / Lord, get me out of here.”)

Dead Kennedys – “When Ya Get Drafted” (“If you can’t afford a slick attorney we might make you a spy.”)

Dire Straits – “Telegraph Road” (“Then came the lawyers, then came the rules.”)

Don Henley – “The End of the Innocence” (“The lawyers clean up all details / since daddy had to lie.”)

Don Henley – “Garden of Allah” (“Today I made and appearance downtown / I am an expert witness, because I say I am / And I said, “Gentleman, and I use that word loosely, I will testify for you, I’m a gun for hire, I’m a saint, I’m a liar Because there are no facts, no truth, just data to be manipulated, I can get you any result you like / What’s it worth to you?”)

The Eagles – “Get Over It” (“Let’s kill all the lawyers, kill ’em tonight.”)

The Eurythmics – “Sisters Are Doin‘ It For Themselves” (“We got doctors, lawyers, and politicians, too.”)

Fishbone – “Ma and Pa” (“Well, there’s a lot of money / For all the attorneys.”)

Fountains of Wayne – “California Sex Lawyer” (“I’ve got a license to love.”)

Frank Zappa – “Brown Shoes Don’t Make It” (“Gotta meet the Guerneys and a dozen gray attorneys.”)

Frank Zappa – “Heavenly Bank Account” (“He says the grace while the lawyers chew.”)

Geoff Berner – “My Dad’s A Lawyer” (“It’s a privilege to announce my dad’s a lawyer.”)

George Harrison – “Sue Me, Sue You Blues” (“Bring your lawyer, and I’ll bring mine / Get together, we could have a bad time.”)

George Harrison – “Wreck of the Hesperus” (“I’m not a power of attorney / But I can rock as good as Gibraltar.”)

Guns N’ Roses – “You Could Be Mine” (“Don’t forget to call my lawyers with ridiculous demands.”)

Jewel – “Who Will Save Your Soul” (” . . . [A]nother lawyer’s bill . . .”)

Kitty Wells – “Will your Lawyer Talk to God” (“Your lawyer called and said he had the papers all prepared / To sign my name was all I had to do / He saw the judge, now he seen me, there’s only one thing left / Will your lawyer talk to God for you?”)

Lou Reed – “Dirty Blvd.” (“Where’s the proof, man? Let me speak to my attorney.”)

Mojo Nixon – “Destroy All Lawyers” (There’s a plague on the planet, and they went to law school.”)

Neil Young – “Sixty to Zero” (“There’s a judge in the city / He goes to work every day / Spends his life in the courthouse / Keeps his perspective that way.”)

Neil Young – “Drivin‘ Thunder” (“I stopped into the courthouse / I had to pay some bills / Got talking with the judge / About the finer points of my driving skills.”)

Panic at the Disco – “Build God, Then We’ll Talk” (“The missus will stay with the cheating attorney.”)

Pink Floyd – “The Trial” (“The evidence before the court is incontrovertible / There’s no need for the jury to retire / In all my years of judging I have never heard before / Of someone more deserving the full penalty of law.”)

The Pogues – “Repeal of the Licensing Laws” (Instrumental)

R.E.M. – “Can’t Get There From Here” (“Lawyer Jeff he knows the lowdown.”)

The Roots – “Table of Contents (Parts 1 & 2)” (“Cutting through like attorneys at law that’s car chasin‘.”)

Todd Rundgren – “Lord Chancellor’s Nightmare Song” (“And bound on that journey you find your attorney.”)

Tom Paxton – “One Million Lawyers” (“In ten years we’re gonna have one million lawyers / How much can a poor nation stand?”)

A Tribe Called Quest – “Show Business” (“Get a good lawyer, so problems won’t pile.”)Tom Petty – “Accused of Love” (“Well, the attorney grins / The witness is drug in / With his face half hid in the shadow / Sworn to God and state, the truth arrives too late / and defense goes out the window”)

Warren Zevon – “Mr. Bad Example” (“Of course I went to law school and took a law degree / and counseled all my clients to plead insanity.”)

Weezer – “Jamie” (“Jamie, believe me, I won’t let you down / Cuz you are the best lawyer in town.”)

Willie Nelson – “Mama, Don’t Let Your Babies Grow Up To Be Cowboys” (“Make ’em be doctors and lawyers and such.”)

As noted in the Drug and Device Law blog’s post, many law songs mention the criminal process. Here’s a brief list of some other such songs we identified:

10 CC – “Good Morning, Judge” (“Well, good morning Judge / How are you today ? / I’m in trouble please put me away.”)

Black Flag – “Police Story” (“I go to court for my crime / Stand in line, pay bail / I may serve time.”)

Bruce Springsteen – “Johnny 99” (“Well your honor I do believe I’d be better off dead / And if you can take a man’s life for the thoughts that’s in his head / Then won’t you sit back in that chair and think it over judge one more time / And let ’em shave off my hair and put me on that execution line.”)

Bruce Springsteen – “Highway Patrolmen” (“My name is Joe Roberts I work for the state / I’m a sergeant out of Perrineville barracks number 8.”)

Bruce Springsteen – “State Trooper” (“Mister state trooper, please don’t stop me . . . .”)

Bukka White – “District Attorney Blues” (“A District Attorney sho‘ is hard on a man / He taken me from my woman / Cause her to love some other man / District Attorney sho‘ is hard on a man / He will take a woman’s man and leave her cold in hand.”)

The Clash – “Know Your Rights” (“You have the right to remain silent / You are warned that anything you say can and will be taken down and used as evidence against you.”)

Elvis Costello – “I Stand Accused” (“Girl, I stand accused / People say I love you / Yeah, I stand accused / Oh, but what can I do? / You belong to some other guy / Hope I never have to testify / If loving you is a big crime / I’ve been guilty a long time.”)

Fiona Apple – “Criminal” (“What I need is a good defense ’cause I’m feeling like a criminal.”)

Furry Lewis – “Judge Boushay Blues” (“Good morning judge, what may be my fine?”)

Joe Perry Project – “Never Wanna Stop” (“Judge and the jury and the district attorney / Gonna try to put my ass in jail.”)

Johnny Cash – “Hung My Head” (“Here in the court house / The whole town was there / I see the judge / High up in the chair / Explain to the court room / What went through your mind / And we’ll ask the jury / What verdict they find.”)

The Kingston Trio – “Bad Man’s Blunder” (“The judge and the jury, they did agree. They all said murder in the first degree. The judge said, saying: I don’t know whether to hang you or not, but this here killin‘ of deputy sheriffs, just naturally got to stop!” (“You’ve got a point there, judge!”)

The Kingston Trio – “Tom Dooley” (“This time tomorrow / Reckon where I’ll be Down in some lonesome valley / Hangin‘ from a white oak tree.”)

LL Cool J – “Illegal Search” (“I got cash and real attorneys on the case.”)

Metallica – “And Justice for All” (“Halls of justice, painted green / Money talking, Power wolves beset your door / Hear them stalking.”)

Morrissey – “I’ve Changed My Plea To Guilty” (“I’ve changed my plea to guilty / Because freedom is wasted on me.”)

The Specials – “Stupid Marriage” (“Court in session. What do you mean ‘Oy, oy, oy‘? Must have court in session. Order. My name is Judge Roughneck, And I will not tolerate any disobedience in my courtroom. Rude boy, you have been brought in Front of me and charged with smashing this woman’s window. Before I sentence you, What have you got to say in your defense?”)

Was Not Was – “Dad, I’m in Jail” (“Say hi to mom / From jail!”)

We also located a few songs about family law (although we suspect there are many more):

Tammy Wynette – “D-I-V-O-R-C-E” (“Our D-I-V-O-R-C-E becomes final today.”).

Steely Dan – “Haitian Divorce” (“This is your Haitian divorce.”).

Weird Al Yankovic – “Alimony” (“Lawyer’s callin‘ me on the telephony / Tryin‘ to squeeze some blood from a stony, stony.”)

There aren’t too many songs about products liability. However, we did manage to come up with a few songs that at least sound like they might be about that type of litigation:

Alice in Chains – “Angry Chair”

Beck – “Broken Drum”

Belle X1 – “The Ribs of A Broken Umbrella

Built to Spill – “Broken Chairs”

As for bands that just might have named themselves after products liability issues, what about Dangerous Toys?

Keeping in mind their beat, the folks at the Drug and Device Law blog also came up with a list of songs about drugs. Well, as they note, way too many rock songs are about drugs, but there are some at least that sound like they might be about the the prescription medication industry:

Candlebox – “Happy Pills”

Eels – “Novocaine for the Soul”

Entrance – “Valium Blues”

Fugazi – “Give Me The Cure”

Morphine – “Cure for Pain”

Neil Young – “The Needle and the Damage Done”

New York Dolls – “Pills”

Pink Floyd – “Comfortably Numb”

Ramones – “I Wanna Be Sedated”

U2 – “Miracle Drug”

The Velvet Underground – “I’m Waiting for the Man”

The Verve – “The Drugs Don’t Work”

Let’s not forget the Alanis Morissette’s album Jagged Little Pill, either, or the rock groups named Codeine and Ted Leo and the Pharmacists. And, of course, if you’re looking for band names that sounds related to the pharmaceutical industry, what about The Cure?

Back in the halcyon days of the 1980s, we encountered one cassette tape of popular music actually produced by a major pharmaceutical company. We had to dig through our forlorn box of old cassettes, but we did manage to find it, and here’s an image of the cassette’s cover:

A joint production of Smith, Kline, and French (now a part of GlaxoSmithKline) and Capitol Records, the 1985 cassette celebrated the twentieth anniversary of the release of the prescription drug Dyazide. In so doing, the release included a number of songs from 1965. We’ve scoured the Internet for information on this release and found little, if anything. So, in the interests of posterity, we present you the track list of songs from 1965 included thereon:


1. Beach Boys – “California Girls”
2. Cher – “All I Really Want to Do”
3. The Seekers – “Another You”
4. Mel Carter – “Hold Me, Thrill Me, Kiss Me”
5. Gary Lewis and the Playboys – “This Diamond Ring”


1. Jackie DeShannon – “What The World Needs Now”
2. The Beach Boys – “Help Me, Rhonda”
3. The Lettermen – “Theme from ‘A Summer Place'”
4. Freddie and the Dreamers – “I’m Telling You Now”
5. Al Martino – “Spanish Eyes”

While on the subject of lawyers and music, we would be quite remiss if we did not mention The Honorable Stephen S. Trott, a justice of the U.S. Court of Appeals for the Ninth Circuit, who was a member of the folk group The Highwaymen in the late 50s early 60s.

Further, we must note that although our friends at the Drug and Device Law blog did include “I Fought The Law” (originally by the Bobby Fuller Four, later covered by The Clash) on their list, they neglected to mention the subsequent covers by The Dead Kennedys, Green Day, Unknown Hinson, and Bell X1 (only some of which are worth a listen). We’ll forgive them that.

Finally, dear readers, if you’ve noticed that a song is missing from either our list or that of the Drug and Device Law blog, please feel free to leave us a comment with the omitted song(s). We’re sure we’ve missed many, many others. Also, if you happen to be a law blogger yourself, we encourage you to write your own post with your own list of songs we missed (or even a Top 10 list of your all time favorite songs that mention the law or lawyers).

Friday Links

  • Superman is identified as a murderer by a child witness on the cover of Superman Supacomic #115, depicted above and published way back in 1969. There are a few problems with this scene, of course, including the fact that the child witness cannot be testifying if Superman is in the witness stand himself. Further, aren’t there all sorts of laws that seek to protect child witnesses? The inconsistencies may be explained by the fact that this series – containing reprints of American Superman titles – was actually published in Australia. But, in the end, this is a fun cover, as we see not only the judge and members of the jury, but also the court reporter dutifully transcribing the proceedings.
  • As you know, we here at Abnormal Use love Twitter, and we follow many, many legal personalities thereon. However, we must direct your attention to @SCBarrister, a brand new legal parody account which emerged last week. It’s quite funny. Think of it as the South Carolina Twitter version of the old Anonymous Lawyer blog.
  • Best legal headline of the week? It’s got to be “Zoo sea lions face legal hurdle” from last Saturday’s issue of The State. Let’s hope the sea lions aren’t pro se.
  • Earlier this week, we interviewed the two authors of the funny and clever Law and the Multiverse blog. Friend of the blog Alberto Bernabe, who runs the Professional Responsibility blog, recently commented upon one of their posts in his own piece, entitled “Did She-Hulk violate the rules against solicitation of clients?” Of course, Bernabe didn’t do a post when we mentioned She-Hulk’s legal career. Alas.
  • You’ve got to give Colin Miller of the EvidenceProf Blog some props for his Radiohead reference in his post entitled “(Not) OK Computer: Supreme Court of Georgia Finds Computer Printout Not an Original or Duplicate for Best Evidence Purposes.” We’ve been trying to work Radiohead references into our posts for the past fourteen months, but as of yet, we’ve been unsuccessful.

King of Torts Dethroned

Stanley Chesley, a class-action plaintiffs’ lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career, is now facing disbarment, the possibility of paying back $7.5 million in fees, and, arguably worse, a “professional death sentence.” The so-called “Master of Disaster” reportedly built his career around a simple strategy: swoop in after a disaster, round up as many clients as possible, and launch a “legal assault” against as many of the deep-pocketed bad guys as possible. How might one who follows such a business model go astray? He allegedly got greedy, with conduct his hearing officer called “shocking and reprehensible” behavior related his keeping far more than his share of a $200 million product liability settlement in Kentucky.

The case at issue was a 1998 class-action lawsuit involving the now withdrawn anti-obesity drug fen-phen, which consisted of more than 400 plaintiffs and was pending in Kentucky’s Boone County. The Wall Street Journal Law Blog reports that Chesley was not initially involved in the litigation, but at some point “muscled” his way into the case and strong-armed the attorneys into sharing fees with him in exchange for his “expertise” in handling class actions. Apparently, though, those attorneys did not notify the plaintiffs of the new arrangement.

The suit eventually resulted in a $200 million settlement with the maker of fen-phen, of which the plaintiffs’ lawyers reportedly kept tens of millions of dollars more than permitted. Of the total settlement, Chesley reportedly received a $20 million fee for his helping settle the case, including a reported additional $4 million for convincing the sitting judge to increase the attorneys’ take on the settlement to 49 percent. That judge later resigned from the bench when it was discovered he allegedly took financial benefit from the settlement in a secret deal.

Of the four plaintiffs’ attorneys involved in that case, three faced criminal charges of fraud and conspiracy. Two were sentenced to 25 and to 20 years in federal prison. As reported at Overlawyered, at the time of those guilty verdicts, it was a mystery as to why Chesley was not similarly charged. Despite that omission, Kentucky’s trial commissioner recently issued his opinion that Chesley should lose his Kentucky law license permanently and return more than $7.5 million in fees collected in the settlement.

Hot Coffee: Take Two (In Florida)

We here at Abnormal Use garnered a bit of buzz with our recent comments on Susan Saladoff’s Hot Coffee documentary and the Stella Liebeck litigation. Some of our critics have interpreted our remarks as an attempt to re-litigate that infamous McDonald’s case. Those critics scolded us and purported that “it’s over.” They advised us to simply “move on” and write on other topics. Perhaps those critics were right. Certainly, the details of a 1994 lawsuit must be irrelevant in today’s legal landscape. However, someone forgot to tell Florida’s Cynthia Gamrot.
According to the local ABC news affiliate, Ms. Gamrot recently ordered a cup of coffee at a Chick-Fil-A drive-thru in St. Petersburg, Florida. She allegedly spilled coffee in her lap and sustained second- and third-degree burns after the cup’s lid “popped off.” The coffee was served at a temperature somewhere between 170 and 200 degrees which was reportedly in accordance with Chick-Fil-A corporate policy. As a result, she sued the owner of the St. Petersburg Chick-Fil-A. (The report did not specify the jurisdiction in which the case was filed). Sound familiar?
In response to Ms. Gamrot’s lawsuit, Tampa’s ABC Action News tested the serving temperature of 33 cups of coffee from 10 national restaurant chains – a task reminiscent of law clerk Danny Jarrett’s work in the Liebeck case. The station’s study indicated that the majority of the coffee was served between 150 and 180 degrees. It should be noted, however, that the coffee served in the 150-degree temperature range came primarily from Arby’s and Wendy’s – two restaurants that do not serve breakfast and are not historically known for their coffee. Starbucks, Dunkin Donuts, Krispy Kreme, and McDonalds all tested in the 168 to 180 degree range.
Back in 1994, Plaintiff’s expert Dr. Charles Baxter opined during the Liebeck trial that the optimal temperature to serve coffee was between 155 and 160 degrees. Defense expert Dr. Turner Osler indicated that coffee served at a temperature as low as 130 degrees could result in burns similar to those sustained by Ms. Liebeck. Further, Reed Morgan, Ms. Liebeck’s counsel, theorized that any coffee served over 140 degrees was “unreasonably dangerous.” If this testimony from the Liebeck trial is true, why do top fast food chains continue to serve an allegedly “dangerous product?” Either restaurants have a diabolical agenda to harm their patrons or they have recognized that people enjoy their coffee piping hot.
The ABC affiliate’s study demonstrates that the Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee. Further, it reveals that the conduct of McDonald’s in the early 1990s conformed to industry standards – both then and now. Critics of the restaurant chain – and those who attempt to use the Liebeck case to advance the agenda of the Plaintiffs’ bar – simply fail to acknowledge the fact that coffee, by its very nature, is meant to be served hot. No one wants to consume a lukewarm cup of sub-140 degree coffee. Restaurants recognize this fact, as do consumers of coffee. Why can’t the trial bar? If Mr. Morgan honestly believes that any coffee served at a temperature greater than 140 degrees is “unreasonably dangerous,” then he essentially argues that coffee should be taken off of restaurant menus. Starbucks did not become a morning staple because of its iced coffee selections.
In no way are we here at Abnormal Use intending to trivialize the injuries of coffee burn victims.
No one is disputing the severity of Ms. Liebeck or Ms. Gamrot’s burns. We do, however, question the need for attributing liability for those burns to the producer or seller of the coffee. There is no evidence that either Ms. Liebeck or Ms. Gamrot expressed any concerns with their fast food-produced coffee prior to their accidents. In fact, we imagine they probably enjoyed the hot product, which is why they ordered it in the first place. They might have even complained had they been served coffee cooler than the industry standard temperature. Simply put, hot coffee does not become “unreasonably dangerous” until it is negligently spilled by the consumer.

Abnormal Interviews: James Daily and Ryan Davidson of the Law and the Multiverse Blog

Today, Abnormal Use once again 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 lawyer bloggers James Daily and Ryan Davidson of The Law and the Multiverse blog, an incredibly fun site in which the authors apply the laws of the real world to the exploits of comic book superheros. In so doing, they’ve earned much press, including a New York Times profile and a Mother Jones interview, and they’ve even have their own Wikipedia entry. That’s not bad for a blog which only came into being in November 2010. The site’s two authors were kind enough to submit to a brief interview with Abnormal Use:

1. How did you get the idea for the blog, and what prompted you to bring it to fruition?

JAMES: My wife and I were having dinner with some friends and the subject turned to Superman’s X-ray vision and whether privacy rights on Krypton might be very different. One of our friends suggested that this kind of thing might make for a good blog, which I was a bit skeptical of at first. I thought about it for a few days and wrote up the first few articles, then I posted about the blog on the personal projects section of MetaFilter, a kind of shared blog that Ryan and I are members of. I’ve been a member of MetaFilter since 2005, and it’s a fairly close community with a strong emphasis on member contributions. So I think what really prompted me to start the blog was a desire to contribute something interesting to that community, although I had no idea it would be so well received.
After the post to MetaFilter, Ryan immediately responded with an offer of collaboration, and so he was involved almost from the very beginning. We’ve both been pleasantly surprised by the positive reception the blog has received every step of the way.
2) Your site focuses on the application of real world legal concepts to comic book superheroes. How well do comic books depict the legal process?
JAMES AND RYAN: Relatively few comic books depict the legal process beyond villains being arrested by police after the superheroes do their thing. But what depictions there are hold up pretty well, especially considering most (if not all) comics are written by non-lawyers. The stories that have courtroom scenes usually don’t have any glaring technical errors, even if they don’t show a lot of detail. On the whole, most modern comic book courtroom scenes are on par with the depiction of court scenes in TV shows and movies.
That being said, comic book stories containing plot elements that are significantly legally problematic show up with some regularity, e.g. nobody ever seems to pay taxes or get audited. Some of that is excusable given the common genre trope of not showing boring details—no one ever seems to go to the bathroom either—and warrantless searches and arrests are so commonplace in comic books that it would be kind of surprising if they *didn’t* show up.
But we do occasionally see things that simply don’t work. For example, the criminal law definition of “insanity” isn’t represented in comic books very well. The Joker may be emotionally unbalanced, even to the point of meriting involuntary commitment, but he does not appear to be insane in a way that would excuse him from criminal liability. Similarly, maintaining a secret identity without government support is reasonably difficult even over the short term, and the problems get even worse for abnormally long-lived characters like Wolverine or R’as al Ghul. But again, the few times that comic books do explicitly deal with legal situations, they do fairly well.
3) What is your favorite depiction of a legal issue in a comic book?
JAMES: In one of the Manhunter comics, Manhunter’s alter ego, Kate Spencer, who is a criminal defense attorney, is at a grand jury hearing. The comic book mentions that the proceedings are sealed and that as a representative for the defense Kate is only there as a courtesy and can’t object to anything. I was very pleasantly surprised by the mention of those technical but important details. So that stands out in my mind.
RYAN: I find that the very early Iron Man comics (i.e. the mid-1960s), Tony Stark actually ran into significant difficulties switching between the Iron Man and Stark personae. It’s one of the few times that a superhero seems to have been bothered by the masquerade beyond mere fear of discovery; Stark started to have money problems. It’s one of the reasons he took off the mask, as it were: maintaining the double life was simply too difficult given the highly public life of Tony Stark.
4) What has been the reaction of the legal field to your site?

JAMES AND RYAN: The response has been consistently positive. We’ve heard good things from attorneys, law students, and law professors, some of whom have mentioned using ideas from the blog in their courses. No one’s really called us out on getting anything completely wrong either, so that’s good. We’ve also been mentioned on several law blogs, including The Volokh Conspiracy.

5) There are, as you may know, real life citizens out there donning costumes in an effort to fight crime, just like comic book superheroes. Are these potential clients for you now, in light of your work?

JAMES AND RYAN: We’re pretty careful about trying not to give legal advice on the blog. If the exposure directs people to us in our day jobs neither of us would complain, but for legal ethics reasons the blog and related projects are strictly literary. We certainly do not intend or want any real-life superheroes to rely on anything we post, which they would be crazy to do anyway, since we tend to write about general legal principles and broad factual examples rather than focusing on the specific law applicable to particular facts the way one would for a client.

6) What has been your favorite legal issue that you have discussed on the site?
JAMES: My favorite issues have been the ones closest to my day job, which is focused on intellectual property. Posts like “Batman and Patents” and the “Superpowered Merchandising” series are my favorites. I did really enjoy writing the recent post on legal ethics, though, since I don’t think the writer realized that the character was committing an ethical breach (improper in-person solicitation), and I don’t think many readers would realize it either. I enjoyed the opportunity to inform people about the ethical standards for attorneys, especially since this is an issue that they might encounter in their own lives.
RYAN: I’ve enjoyed the more historical topics, so outlawry, the non-human intelligence series, and the posts touching on immortality have been especially fun to write.
BIOGRAPHIES: James Daily is an attorney licensed in Missouri and a graduate of the Washington University in St. Louis School of Law. He is also registered to practice before the United States Patent and Trademark Office. By day, he works for the Stanford University Hoover Institution’s Project on Commercializing Innovation and represents clients in intellectual property matters. Ryan Davidson is an attorney licensed in Indiana and a graduate of Notre Dame Law School. He practices in Fort Wayne, Indiana, mostly in insurance law. The two of them started the Law and the Multiverse blog in November of 2010. You can follow them on Twitter here.

Abnormal Interviews: Law Professor Catherine Sharkey

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to New York University law professor Catherine Sharkey, who has dedicated a great amount of study to federal preemption. With the U.S. Supreme Court recent preemption jurisprudence, we thought the best person to interview was Professor Sharkey, who was kind enough to give us her thoughts on those new cases. The interview, beginning with a preliminary summary of the opinions authored by Professor Sharkey, is as follows:

The last full week of February was a big week for federal preemption at the U.S. Supreme Court. On Tuesday of that week, the Court handed down Bruesewitz v. Wyeth, a 6-2 pro-preemption decision holding that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs seeking compensation for injury or death caused by vaccine side effects. And the next day, on Wednesday, the Court followed with Williamson v. Mazda Motor of America, Inc., an 8-0 anti-preemption decision holding that the National Traffic and Motor Vehicle Safety Act of 1966 and Federal Motor Vehicle Safety Standard 208, which gave manufacturers a choice of installing either lap belts or lap-and-shoulder belts on rear inner seats of passenger vehicles, do not preempt state tort lawsuits premised on the manufacturer’s failure to install lap-and-shoulder belts.

1. Were the results in these cases a surprise to you?

No, I predicted both the pro-preemption result in Bruesewitz and the anti-preemption result in Williamson. This Supreme Court tends to interpret express preemption provisions, such as the one at issue in Bruesewitz, broadly, whereas the Court has narrowed the scope of implied preemption, as was at issue in Williamson. However, the Court’s 8-0 line-up in Williamson came as a complete surprise. Not only do the Court’s implied preemption cases tend to be hotly contested (such as the 6-3 decision in 2009 in Wyeth v. Levine, the case holding that FDA approval of a pharmaceutical drug did not preempt state tort lawsuits), but Chief Justice Roberts and Justices Scalia and Alito (dissenters in the Levine case) had signaled their embrace of a broad interpretation of implied preemption, at least in highly regulated areas such as pharmaceuticals (and by extension, automobiles). One might have reasonably predicted these three to have dissented in Williamson. (In hindsight, a key difference may be the presence of an express savings clause in the Motor Vehicle Safety Act, which is absent in the Food Drug and Cosmetic Act).

2. In a previous 2000 case, Geier v. American Honda Motor Co., the Court held that the very same statute and federal regulation at issue in Williamson did preempt a state tort lawsuit that would effectively remove a manufacturer option, in that case airbags as opposed to other passive restraints. Can Williamson be reconciled with Geier?

Justice Breyer wrote the majority opinions in both Geier and Williamson (although Geier divided the Court 5 to 4). There are some striking similarities between the two cases. First, the same statute and federal regulation were at issue. Second, the federal regulation provided manufacturers with options in each case: the choice to install airbags or other restraints in Geier; the choice to install a lap or lap-and-shoulder belt in Williamson. And, in each, plaintiffs brought a state tort lawsuit premised on the manufacturer’s failure to install a particular option: airbags in Geier and lap-and-shoulder belt in Williamson. Justice Breyer in fact conceded “the history of the regulation before us [in Williamson] resembles the history or airbags to some degree.” So, what was different? According to Justice Breyer, “unlike Geier, we do not believe here that choice is a significant regulatory objective.” He based this conclusion on “the agency’s contemporaneous explanation, and its consistently held interpretive views.” The majority, in other words, interrogated the reasons behind the agency action to probe whether providing manufacturers with options was a “significant regulatory objective.”

Justice Thomas, however, was not convinced. Not mincing words, he charged: “That the Court in Geier reached an opposite conclusion reveals the utterly unconstrained nature of purposes-and-objectives preemption.”

3. Going forward, how might courts discern whether a particular federal regulation embodies a “significant regulatory objective” that conflicts with a state tort lawsuit?

Following Williamson, courts will closely examine the federal regulation, including its history, the promulgating agency’s contemporaneous explanation of its objectives, and the agency’s current views of the regulation’s preemptive effect.

Here, again, Justice Thomas was highly skeptical. He dismisses the majority’s approach as resting, at its core, on some form of “‘psychoanalysis’ of the regulators.” And he notes with chagrin that courts must henceforth “sift[] through the Federal Register, examin[e] agency ruminations, and ask[] the Government what it currently thinks.”

4. What about the presumption against preemption?

Surprisingly, the presumption was never discussed in Williamson and it surfaced only in a single footnote of Justice Sotomayor’s dissent in Bruesewitz, more as an aside. The presumption hardly lives up to its reputation as a pillar of the Court’s preemption framework. To my mind, all along, the presumption has been deployed by the Court in a haphazard way—rearing its head in some cases, while remaining utterly silent in others (including the majority in Geier, as pointed out with vitriol by the dissent). While many scholars continue to see it as the linchpin of an analytic preemption framework, I have long argued that it rests on extremely weak empirical and theoretical foundations.

5. In light of all of the new opinions, what is the analytic framework for preemption decisionmaking?

The role played by the underlying regulatory agency has been underappreciated in preemption cases. Even in Bruesewitz, an express preemption case authored by Justice Scalia, the most loyal adherent to textualist statutory interpretation, the majority nonetheless looks to the regulatory framework for vaccines for additional support for its holding that the Vaccine Act preempts design defect claims. The majority points to the role of the Secretary of Health and Human Services (HHS) in prompting the development of improved vaccine design and post-approval monitoring by various federal agencies. Justice Breyer, who places even more weight on the views of HHS (as expressed through the government’s amicus brief), was convinced that the “rigorous administrative safety review” of vaccines and HHS’s thorough understanding of vaccine production and safety was sufficient to read the Vaccine Act as preempting state tort design defect claims.

Williamson brings this approach front and center, with its emphasis on the regulating agency’s views both at the time the regulation is promulgated and at the time the case is before the Court. The majority reiterated its statement in Geier that “the agency’s own views should make a difference.” But, at the same time, the Court does not simply defer to the agency’s obiter dictum. For example, “the fact that DOT [Department of Transportation] made a negative judgment about cost effectiveness . . . cannot by itself show that DOT sought to forbid common-law tort suits in which a judge or jury might reach a different conclusion.” More would be needed form the rulemaking record to substantiate the agency’s intent to preempt. The agency’s views, moreover, will be deemed worthy of consideration only to the extent that they are “consistently held interpretive views.”

In my own work, I have proposed an “agency reference model” to guide judicial preemption decisions. Williamson is a significant step in this direction. And it is particularly momentous in that seven Justices seem to have signed on to this approach. (Again, Justice Thomas notes his strong objection to what he views as “[t]he Court wad[ing] into a sea of agency musings and Government litigating positions and fish[ing] for what the agency may have been thinking 20 years ago when it drafted the relevant provision.”) But more is needed to guard against agency political flip-flop with each Administration’s change of view on implied preemption and state tort law. The next step is to articulate the level of deference to accord to agency positions on preemption and to specify the heightened judicial scrutiny of the agency’s regulatory record that supports its position.

BIOGRAPHY: Catherine Sharkey is Professor of Law at New York University School of Law. She is one of the nation’s leading authorities on federal preemption in the realm of products liability. Professor Sharkey has published more than twenty-five law review articles, essays, reviews, and book chapters in the fields of preemption, punitive damages, administrative law, mass torts, class actions, and empirical legal studies. Her scholarship has been cited by numerous federal appellate and trial courts. Professor Sharkey will join Professor Richard Epstein as co-author of one of the leading torts casebooks and is co-editor with Professor Saul Levmore of the second edition of Foundations of Tort Law. She also serves as a consultant to the Administrative Conference of the United States. Professor Sharkey earned a bachelor’s degree in economics, summa cum laude, from Yale University. A Rhodes Scholar, she received a master of science in economics for development, with distinction, from Oxford University (Magdalen College), and her J.D. from Yale Law School, where she was Executive Editor of the Yale Law Journal. She clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Justice David Souter of the U.S. Supreme Court.