Another Tomato Farm Takes on FDA, Claims $11 Million in Damages

We recently reported here that a South Carolina family-owned tomato farm had sued the United States Food and Drug Administration (FDA) in South Carolina federal court in Beaufort, alleging that the agency was negligent in its issuing of a 2008 nationwide tomato recall.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).  The FDA issued that recall over fears that tomatoes were the source of salmonella contamination, though, ultimately, the outbreak was traced to a source other than tomatoes.  Well, another tomato farm has since joined in filing suit. reports that Williams Farms Produce Sales, Inc., which grows more than 500 acres of tomatoes in South Carolina and Florida every year, filed suit alleging that it lost $11 million as a result of the recall that later proved to be unnecessary.  The latest suit, which was filed less than one month after the Seaside Farm’s complaint, was filed in federal court in Charleston.  Williams Farms Produce Sales, Inc. v. United States, C.A. No. 2:2011-cv-1399 (D.S.C. June 2011). reports hat the latest complaint includes causes of action of negligence, defamation, slander of title, product disparagement, unconstitutional taking, and violation of unfair trade practices law, for which the tomato grower seeks actual damages in excess of $11 million, special damages, compensatory damages, treble damages, attorneys’ fees, and costs.

These two lawsuits could be the firsts of many, and they certainly demonstrate that the amount of potential damages alleged against the FDA could be staggering. and have reported that Florida farmers estimated they lost $60 million as a result of the recall, and that national numbers could be $140 million or more.  They also report that previous attempts in 2008 to acquire voluntary compensation from the government to offset the losses failed, and as such, litigation was almost certain to follow.

Abnormal Interviews: Megan Erickson, Author of the Social Networking Law Blog

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to attorney and social media guru Megan Erickson of Dickinson, Mackaman Tyler & Hagen, P.C. in Des Moines, Iowa. Erickson runs the popular Social Networking Law Blog and practices in the areas of commercial litigation, appellate practice and business law. The interview is as follows:

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

I’m not sure anyone can predict how state bars will respond, but I do think one of the biggest challenges will be in the area of professional regulation/ethics.  In particular, I think we’ve already seen problems arise when the people in charge of regulating others’ online activity are people who are themselves relatively unfamiliar with the technology they want to regulate.  Although people are increasingly accepting of Facebook and online networking, there are still plenty of people out there whose attitudes range from “I’m reluctant to use Facebook” to “Facebook is Satan.”  As we get more and more interactive online tools and Web 2.0 becomes more pervasive, the division between the tech savvy and the tech not-so-savvy becomes more pronounced.   Folks who use these tools find themselves increasingly engaged online and dependent on the technology; folks who inherently distrust the online world feel more compelled to restrict it.  Of course, an unrealistically optimistic view of social media is unhealthy, and there should be some rules in place.  I just think state bars should make a more concerted effort to ensure those rules aren’t being articulated by someone who (regardless of how well-intended) is ill-informed on the very technology being regulated.

2. How can, and how should, lawyers manage their time between work, more traditional marketing and business development, and the usage of social media?

It depends.  (How’s that for a “lawyer” answer?!)  I think every attorney approaches client development and marketing initiatives differently, and attorneys also have different demands and priorities at work and at home.  To the extent you find online tools a convenient, effective, and heck – maybe even fun way to market, then by all means, use them!  Some firms may find it beneficial to experiment a bit.  For example, does it make sense to change a quarterly practice group newsletter mailing to a quarterly e-newsletter?  The answer will depend on the audience preferences, the comfort level of the attorneys in making the change, and the practical realities of whether they have an effective way to make that transition.  Does it make sense for a practice group to give up a newsletter altogether and instead focus efforts on a blog?  Again, the answer should come only after thoughtful consideration.  Some groups may welcome such a change:  it may be easier to start writing a piece when you know you can keep it shorter; it may be more useful to an audience to receive a more concise post than lengthy article; it may be more convenient for some attorneys to try this without imposing a particular schedule or deadline – which may elicit more contributions or make it more convenient for the authors.  Of course, it may be a nightmare for others:  if the group doesn’t have anyone familiar with blog platforms, learning the technology may be unduly burdensome; some groups may not be able to make a blog work without a particular schedule or deadlines; some may spend an inordinate amount of time concerned with search engine optimization, and let SEO overshadow the substance.  If you’re running into too many challenges or you feel like a new technology just isn’t your cup of tea, don’t force it!  Some of us are more comfortable with speaking engagements.  Some of us prefer lunches with clients.  Some want to network at the golf course, while others dedicate themselves to community involvement.  Just as we all have different talents and preferences for traditional forms of client development and networking, we’ll all have different approaches to how we implement or supplement our marketing with social media and other relatively new online tools.

3. What advice would you give to lawyers who are consider using blogs and Twitter to market their firms and practices?

Drawing from my prior answer, you may want to experiment, but don’t force something that isn’t working for you.  Twitter may seem like the cool, new “thing” you’re supposed to be doing – but only participate if it makes sense for you.  If you choose to participate, learn the rules of the road.  You wouldn’t take prospective clients to the golf course without understanding the basics:  teeing up, how to use a ball marker, the difference between a wood and a putter, what to do when your ball goes in the water . . .  (I’m very familiar with that last situation, myself.)  Likewise, don’t use Twitter or other online tools without learning basic etiquette and lingo.  You’ll do yourself more harm than good if you skip this step.

4. Do you believe that blogs and Twitter are successful independent means of generating business, or are they now simply a necessary part of larger contemporary marketing efforts?

As my earlier answers suggest, I think the role of social media in a lawyer’s client development efforts has to be an individualized choice.  My personal opinion is that very few lawyers would be able to – or would want to – use only blogs and Twitter to generate business . . . if for no other reason than effectively using blogs and Twitter itself generates other marketing opportunities.  If your blog is popular, you’ll be asked to speak.  If you have interesting posts, you’ll be called for interviews.  And so on.  To the extent lawyers want to use blogs and Twitter, I think most will want to use them to supplement other marketing efforts – not replace them.

BIOGRAPHY: Megan Erickson is an attorney at the Dickinson, Mackaman, Tyler & Hagen law firm in Des Moines, Iowa where she practices primarily in employment law and also maintains a general practice including but not limited to commercial litigation, appellate practice and business law.  Megan is a frequent author and speaker on legal issues related to technology and social media.  She maintains the Social Networking Law Blog, and has been interviewed and quoted on legal implications related to social media in various publications and websites across the country.

A Challenge to Reed Morgan, the McDonald’s Hot Coffee Plaintiff’s Attorney: Release the Trial Transcript!

The sinister suggestion that major corporations have conspired to use the Stella Liebeck McDonald’s hot coffee case as a tool to promote tort reform is odd, although film maker Susan Saladoff and her pals at the The Pop Tort seem to believe that business interests have spent millions in an effort to make the Plaintiff Stella Liebeck the poster plaintiff for tort reform. That’s one of the themes of Saladoff’s Hot Coffee documentary, which we reviewed yesterday. However, there really isn’t any evidence to prove such a corporate scheme, although as always, the absence of evidence of a conspiracy serves to confirm its success in some eyes.


These allegations of corporate malfeasance prompted some thinking on our part. If the Stella Liebeck case has truly been misrepresented by maleficent corporate interests for the last 17 years, is a documentary by a plaintiff’s attorney like Saladoff the best way to expose it?  Wouldn’t the best way to ensure that the public knew the truth be to place as much information in the public record, thereby permitting the public to decide the issue without spin? Saladoff herself must agree in spirit, as part of her film includes her selectively presenting citizens on the street with trial exhibits from the Liebeck case, including photographs of Liebeck’s injuries.

But why be selective in releasing those original source documents?

As we previously noted, the 1994 Liebeck verdict came at a interesting time; the communications infrastructure we rely upon today was in its most nascent stage. Although colleges and universities (as well as early adopters and huge nerds like we here at Abnormal Use) had Internet access, the general public did not, and newspapers did not publish articles online to be relied upon later by armchair researchers.  Thus, in this age of information, most of the source material we have on the case is second-hand, at best. These days, when a lawsuit makes the news, the pleadings are instantly published on news organizations’ website. Certainly, courts place many documents on-line, whether it be the federal PACER system or state court docketing systems. But not then. We were years from court records and pleadings being placed on line. In sum, the Liebeck case, filed in New Mexico state court in 1993 and tried in 1994 happened before anyone digitally preserved such things for posterity.

Where does that leave us?

The only parties with access to all relevant information are the McDonald’s corporation and Liebeck’s estate. Despite the protestations of the plaintiff’s bar and Saladoff, the McDonald’s corporation has remained curiously tight-lipped about the case over the past 17 years. There’s no evidence that this major company has engaged in any public relations campaign; and if they had, it has not been very successful, as many people are unaware of the basic facts of the case.

If the plaintiff’s bar truly wishes to expose the “truth” behind the case, then they should look to one of their own: S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas, the lead plaintiff’s attorney who represented Liebeck during the original trial. Presumably, Morgan has a whole host of original material which could shed additional light on the case but which are not currently in the public record. By this, of course, we refer to deposition transcripts, discovery responses, and the trial transcript, none of which is readily available in any form. Allowing the general public, as well as legal scholars and researchers, to review this material would shed much light on the case and allow partisans of any persuasion to use the actual evidence from the actual trial to advance their agendas. (Saladoff had access to at least some of this material, although it’s unclear from whom she obtained it; she told IndieWire that she “was able to secure the transcript of the trial, and then went to Albuquerque where the case was tried, located the family, the lawyers, jurors, the doctor, and started talking to as many people as possible who would talk to me.”)

Some privacy concerns might exist. However, the heirs of Ms. Liebeck could easily address those hurdles and permit the release of any sensitive material. (They were apparently comfortable with Saladoff using photographs of Ms. Liebeck’s injuries.). If her relatives are willing to be interviewed by friendly documentarians about the case, we suspect they would have no problem with releasing these materials for the general public as a whole. If, after all, the goal is for the truth to be revealed, the release of as much information as possible would certainly serve that goal, would it not?

Sure, you ask, wasn’t there a confidential settlement in the case which occurred in December of 1994 which might prohibit the release of such material? We here at Abnormal Use have not seen the language of that agreement (why would we have?). Certainly, it has not kept Ms. Liebeck’s local counsel, New Mexico attorney Kenneth R. Wagner, from being interviewed by Ms. Saladoff in her documentary about the case. Further, the trial transcript is a public document, likely outside the scope of any confidentiality clause. It should be released to the general public, just as it was released to Saladoff for her purposes (but again, by whom, we know not).

Accordingly, we here at Abnormal Use officially challenge Morgan to release these materials to the extent he is permitted to do so under the settlement agreement. Further, we challenge Morgan to consult with Ms. Liebeck’s heirs to secure their permission to release any additional information (particularly Ms. Liebeck’s deposition transcript), to the extent that their permission is needed under relevant law. (Further, we recall something from law school about deceased persons no longer having any right to privacy, anyway.) Certainly, if a fair reading of these materials will result in one agreeing with Morgan and Saladoff, than there is no reason to conceal these materials any longer. However, if they are reluctant to release these materials, what’s all this talk about “truth” then, really?

Film Review: Susan Saladoff’s “Hot Coffee” Documentary

Tonight, at 9/8 Central on HBO, comes the long-awaited premier of Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.  We here at Abnormal Use have taken a special interest in the film since its original debut at the Sundance Film Festival in January.  We have highlighted the background and potential bias of the film’s maker and prepared a detailed (and objective as can be) FAQ file on the infamous Stella Liebeck McDonald’s hot coffee lawsuit from which the documentary derives its name.  In so doing, we have received many comments criticizing us for “reviewing” the film prior to having seen it. In fact, we were even accused of perpetrating a “dirty corporate disinformation campaign.”  Well, after months of requesting a copy of the film from Saladoff, her publicity firm, and ultimately, HBO, we here at Abnormal Use obtained an advance screener.  With that DVD in hand, we now offer our official review and commentary on this well publicized film.

Written and produced by Saladoff, the film offers four case studies to illustrate the alleged dark side of tort reform.  Beginning with the Liebeck case, Saladoff argues that corporations improperly exploited that famed case to promote massive tort reform.  Specifically, Hot Coffee alleges that the American Tort Reform Association and the United States Chamber of Commerce misrepresented the Liebeck case and duped many state legislatures into passing caps on certain recoverable damages.  Further, the film suggests that these advocacy groups devastated America’s civil justice system by funding the judicial campaigns of candidates willing to serve corporate interests at the expense of consumers and sympathetic Plaintiffs. (The film points to three other cases, as well, though they are less famous than the Liebeck case.).

Those who see the documentary may likely be persuaded of the “evils of tort reform.”  Saladoff brilliantly selects cases that tug on the emotional heart strings of even the most stoic of viewers.  After witnessing the struggle of parents attempting to provide for a brain damaged child or hearing a woman explain her unsuccessful quest for a jury trial after being brutally raped by co-workers, uninformed viewers may leave the film with a distaste for tort reform – at least as Saladoff presents it.  As a filmmaker and “documentarian,” Saladoff is persuasive, and she has garnered much attention from Hollywood for her efforts. (Indeed, non lawyer film critics  are falling for her propaganda). Cynical as we are, and willing to dig deeper than casual viewers, we here at Abnormal Use are not so easily persuaded.  Once one cuts through Hot Coffee‘s emotionalism, we see a film that exploits the McDonald’s case and other sympathetic litigants to promote Saladoff’s own personal agenda.

Call us crazy, but we thought a film entitled, Hot Coffee, would mostly be about, well, the hot coffee case.  After all, the film’s website heralds: “Hot Coffee reveals what really happened to [famed McDonald’s hot coffee Plaintiff] Stella Liebeck . . .” and that “[a]fter seeing the film, you will decide who really profited from spilling hot coffee.”  Saladoff told IndieWire: “The McDonald’s coffee case is the most famous case in the world, and yet almost everyone has it wrong.”  Those are bold statements.  Yet the 88 minute film dedicates only ten minutes to the Liebeck case.  If the Liebeck litigation has become the “most famous case in the world” and misunderstood by the American public, Saladoff could have dedicated the entire film to debunking any purported misperceptions.  Certainly, that’s what the title suggests she planned to do. But that’s not what she’s done. In reality, the McDonald’s case is nothing more than a cinematic hook to bring viewers to Saladoff’s more general propaganda.

Despite the short shrift the Liebeck case receives in the film, Saladoff argues that there are certain facts of the Liebeck case that were either somehow concealed from the public or never brought to light which, if known, would change the perception of the case from frivolous to somehow meritorious. Those facts are these:

(1) Liebeck spilled coffee while a passenger in a parked car, not as a driver in a moving vehicle;

(2) Liebeck was actually injured; she suffered second- and third-degree burns;

(3) McDonald’s policy was to serve coffee between 180-190 degrees;

(4) McDonald’s had been notified of 700 prior burnings;

(5) McDonald’s only offered Liebeck $800 to settle the litigation; and

(6) The jury’s punitive damages award was reduced to $800,000.

In selectively presenting these facts in this fashion, Saladoff contends Liebeck’s lawsuit was meritorious simply because she suffered actual damages and failed to show any desire to get-rich-quick.  Unfortunately, it is not the presence of actual damages and a noble spirit which keeps a case from being frivolous.  In fact, Saladoff neglects to address the point often made here at Abnormal Use:  coffee is meant to be served hot and does not become “unreasonably dangerous” until negligently spilled by the consumer.  This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot.  Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Although the film makes much ado about corporate attempts to influence the process, the role of trial lawyer and civil justice groups is surprisingly omitted.  (Apparently, it is only corporations that fund promotional campaigns to influence the judiciary and the electorate.). Nevertheless, the film criticizes corporations for hiring PR firms and hiding behind benevolent sounding front groups like the American Tort Reform Association, the U.S. Chamber of Commerce, or the Citizens Against Lawsuit Abuse.  Saladoff herself, however, has a long history of being involved in opposing groups, such as the Trial Lawyers for Public Justice and the American Association for Justice.  Of course, Saladoff would have you believe that these groups are noble entities formed to protect our citizens which would never participate in such conduct.  Right.

Hot Coffee also documents the story of Oliver Diaz, a former Mississippi Supreme Court Justice, to accuse the U.S. Chamber of Commerce of funneling money into the judicial campaigns of pro-tort reform candidates.  The film suggests that Diaz found himself running against a candidate hand picked and funded by the Chamber.  But here’s the catch: the film concedes that trial lawyers often donate to their own judicial candidates. But the film attempts to minimize this fact by noting that trial lawyers are limited by law in the amount of money they can donate.  This seems a bit unfair, right?  Big corporations are buying seats for judges while trial lawyers must sit idly by due to unfair, oppressive campaign finance laws?  Is the story truly so bleak for trial lawyers and their own advocacy groups? Not really.

First, Diaz actually won his election thanks to a hefty donation from prominent trial lawyer, Paul Minor (whose well-publicized 2007 conviction for judicial bribery six counts of honest services mail fraud, two counts of judicial bribery, one count of honest services wire fraud, and one count of racketeering you might recall (though in full disclosure, the Fifth Circuit  reversed the feberal bribery convictions in 2009, though, Minor was recently re-sentenced to eight years in prison in connection with the other charges.).  Second, famous plaintiff’s attorney Richard Scruggs, referred to certain Mississippi counties as “magic jurisdictions,” which he defined as:

[W]here the judiciary is elected with verdict money.  The trial lawyers have established relationships with the judges that are elected. . . .They’ve got large populations of voters who are in on the deal, their getting their [piece] in many cases.  And so, its a political force in their jurisdiction, and its almost impossible to get a fair trial if you are a defendant in some of these places. . . .  These cases are not won in the courtroom.

For some reason, Saladoff neglected to include that information.  And, we thought it was tort reform which was trying to close the courtroom doors?

The film also chronicles the cases of Colin Gourley, a boy who sustained brain damage as the result of medical malpractice during his mother’s pregnancy and delivery, and Jamie Leigh Jones, a woman raped and imprisoned while working for Halliburton subsidiary KBR in Iraq.  By using these tragic and sympathetic stories, Hot Coffee garners sympathy for the anti-tort reform movement while deflecting attention away from the fact that it is not just plaintiffs who benefit by opposing tort reform.  Of course, trial lawyers like Saladoff benefit in the best of ways: financially.  The larger the verdict for the plaintiff, the larger the payday for the trial lawyer.  It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.

Our original piece chronicling Saladoff’s history as a plaintiff’s lawyer and longtime affiliation with the Association of Trial Lawyers of America rang truer than we even realized.  In fact, it was cited just yesterday in The New York Times by its legal correspondent John Schwartz who, however, downplayed Saladoff’s possible lack of objectivity.  (We wonder what Schwartz would think about an environmental film produced by an oil company.). Schwartz did concede, though, that Saladoff is an “advocate.”  As editorialists ourselves, we would never object to someone simply expressing a point of view; we love the vast marketplace of ideas (though we find Saladoff’s background highly relevant to the message she offers). In this case, our goal is, and has always been, to expose potential bias and inconsistency, especially in light of the film’s presentation as an objective documentary peddling in previously unknown “truths.”  Just as Saladoff accuses the media of exploiting an allegedly meritorious hot coffee case, Hot Coffee is guilty of the same offense.  Saladoff preys on the emotions of viewers to advance her profession’s own special interests.

Saladoff declined multiple requests from Abnormal  Use for interviews, both in January and this week prior to the film’s HBO premier. (Actually, she initially accepted an interview request in January, then canceled at the last minute after the interview had been scheduled, and we never heard from her again.).

The film premiers tonight on HBO at 9/8 Central.

Abnormal Use Cited in Today’s New York Times on “Hot Coffee” Documentary

With all the talk about Plaintiff’s attorney Susan Saladoff’s new documentary, “Hot Coffee” and the Stella Liebeck McDonald’s hot coffee case, we here at Abnormal Use are also making the media rounds.  Today, a New York Times write-up on Saladoff’s documentary – which premieres on HBO tomorrow  – quotes one of our earlier posts noting would be documentarian Saladoff’s decades-long background as a prominent Plaintiff’s attorney.  Here’s the excerpt in question from the piece by Times legal correspondent John Schwartz:

With a subject this fought-over it’s not surprising that the documentary itself has been controversial. A legal affairs blog that covers product liability law, Abnormal Use, criticized the film for having come from the hands of a trial lawyer, stating, “We’re thinking that this might not be the most objective documentary on the subject.”

Of course that wasn’t really the filmmaker’s goal. Ms. Saladoff is, as a lawyer and now a director, an advocate. One of several strands in the film, Ms. Liebeck’s story shows how tort reformers deftly spun her case and others to nudge public opinion and argue for the need to shut down what industry advocates called “jackpot justice.” The film also lays out facts of the case that are rarely heard.

Schwartz quotes directly from this prior blog post of ours, which we ran back in January. Of course, The Times, being The Times, attempts to cover for the anti-tort reform filmmaker against our charges of potential bias. (Maybe The Times is still miffed at us for scooping them on our “Views of 2011 from 1931” story last December.).  As always, if you’re looking for more information on the Liebeck case, please see our comprehensive FAQ.

Abnormal Use Makes Its Radio Debut

Yesterday, Abnormal Use became more than an awarding-winning legal blog.  We became an award-winning legal blog that was quoted on the radio.  That’s right, the radio!

On NPR’s “Here & Now,” the host used two of our former blog posts on the Stella Liebeck McDonald’s hot coffee case in an interview with Susan Saladoff.   Saladoff, as you might recall, is the former plaintiff’s attorney who has created the anti-tort reform documentary, Hot Coffee. You can listen to that interview here (Abnormal Use comes in around the 10:35 mark).

You can re-read the posts cited by the host here and here.

Friday Links

We here at Abnormal Use are huge fans of Bruce Springsteen and the E Street Band, so of course, we were saddened to learn of the death last weekend of Springsteen’s long time friend and saxophone player, Clarence Clemons.  Our firm boasts many Springsteen fans, from newly minted admirers to some who saw the Boss and Clemons back in the 1970s.  Whenever Springsteen and the E Street Band play the Southeast, our firm sends a contingent of folks to bear witness. In light of our great fondness for Springsteen and Clemons, we thought we would share a few memories of Clemons.

Shareholder and Blog Author Phil Reeves:  “My second concert with Bruce was in Atlanta in 1978 at the Fox Theatre in Atlanta. I had tickets on the fifth row, and he had rescheduled because he was sick, and it was broadcast on the radio. He played four hours, and he and Clarence did the best version of “Backstreets/ Sad Eyes” ever.  He has never repeated it.  I remember being blown away and understanding that this was music at its most powerful level. I have never forgotten a single note and can not imagine a better show ever. Clarence was amazing. This was he and Bruce at their best, and it was obvious that they were not only fellow musicians, they were also best friends. It was quite a show.  When it was over, we just sat there in awe. I still have the tapes and they are among my most precious possessions.”

Thanks to the power of the Internet, we were able to locate the setlist to that September 30, 1978 show.

Paralegal Stephanie Ayers:  “My memory would be the concert in Greenville in September ’09 when Phil Reeves’ daughter, Michelle, made the huge poster which said ‘Welcome to Greensteen.’  We were only a couple of rows from Clarence and when he spotted the poster, he smiled his big smile and pointed it out to Bruce. They both keep pointing to the poster and smiling our way and then they motioned for Little Stevie to get the poster and bring it to them. Then they held it up and it was on the big screen behind the band for their last song.  What a great moment.”

If we here at Abnormal Use are anything, we are quick with our iPhones, and we caught a quick picture of the very moment Stephanie is describing, with Little Stevie holding the sign in question while Clarence sits in the foreground. See below for that photo.  The set list for that September 16, 2009 show at Greenville’s Bilo Center can be found here.

TV Review: USA’s “Suits”

Tonight at 10/9 Central, the USA Network premieres its new legal drama, “Suits,”  which centers around high-powered corporate attorney Harvey Spector (Gabriel Macht) and his “pseudo-associate” Mike Ross (Patrick J. Adams).  We here at Abnormal Use obtained an advance screener of tonight’s pilot, and we enjoyed some of what we saw.   At its outset, “Suits” appears to be like every other legal drama past and present.  Mega-profile attorney, thousand dollar suit, big city firm – you get the picture.  However, “Suits” quickly adds a new – albeit unethical – twist to the genre.

With only a few minor, minor spoilers, the basic premise is as follows:  After achieving the position of Senior Partner, Spector is given the opportunity to hire his own associate.  Bored with the blandness of each “Harvard douche” applicant, Spector encounters good guy with tough luck Ross, who enters the interview room to hide from the police after a drug deal gone bad.  Spector is intrigued by Ross, who shares his same charisma and possesses an unparalleled photographic memory.  There is only one problem – despite acing the LSAT on numerous occasions, Ross has never attended law school.   Not one to to let a simple thing like a law license get in his way, Spector hires Ross as his new associate.

From this brief synopsis, it is readily apparent to any attorney what is wrong with “Suits.”  The show is an ethical conundrum.  Even beyond the unauthorized practice of law, the “finding good in an unethical situation” theme is persistent.  For example, in one scene we see Spector lying to a client who threatens to fire the firm while simultaneously accusing the client of acting in bad faith.  Lies and deceit do little to aid the already negative perception of lawyers in our society.  To make matters worse, it is this deceit which lands Spector the Senior Partner-gig and the opportunity to hire Ross.  Apparently Spector was wrong – bad faith does pay.

As bad as Spector’s interactions with clients might be, it is the prominence of an unlicensed attorney which pushes “Suits” into an ethical chasm.  As much as Spector makes any respectable attorney cringe, Ross is equally as enjoyable.  For starters, he’s brilliant.  He memorized BarBri’s bar review materials word-for-word and displayed legal knowledge far superior to any first-year associate we have encountered.  In addition, Ross displays a concern for clients visibly lacking in Spector.  Ross certainly has the potential to be an effective lawyer.  Unfortunately, however, someone forgot to remind the writers that the days of the apprenticeship have long been abandoned in the legal profession.  We can buy the smart guy wanting to be lawyer concept, but Spector’s decision to hire Ross knowing that, if caught, he undoubtedly would lose his license seems a bit absurd.  Of course, absurdity often makes for the best television.

We shouldn’t be surprised that a legal drama would depict lawyers in unethical situations.  Unfortunately, it is what people have come to expect.  The problem is that the show’s most noble character is the one rooted in the deepest ethical paradox.  Is “Suits” suggesting that law school is what strips us of all morality?  Are we not as smart as we think we are?  Are we replaceble by any person off the street with a photographic memory?  We here at Abnormal Use would like to think we are worth a little more than that.

The show’s ethical problems are so prevalent that they overshadow its legal inaccuracies.  Who cares that depositions can be scheduled on one day’s notice when it is an unlicensed lawyer signing the subpoenas?  We were hardly surprised to see Ross electing to move to sanction opposing counsel for failure to comply with the discovery requests he served only one day prior.  “Suits” is hardly an exhibition on civil procedure.

With all of its problems, however, “Suits” is a rather enjoyable show.  Everything that makes “Suits” bad from a legal standpoint makes it great for viewers.   We can appreciate Ross as the unexpected David competing against his Goliath Harvard-law co-workers.  As bad as Spector’s tactics may be, they are much more entertaining than watching some nice guy who refuses to push the bounds of civility.  While we do not condone the replication of Spector’s conduct in real life, Macht plays the part well and adds some excitement to the bland world of settlement negotiation.  If nothing else, Spector and Ross are well cast and believable, albeit in unbelievable situations.

After viewing only the pilot episode, we have no idea what direction “Suits” may take.  We anticipate Spector will develop morally through his relationship with his noble apprentice, while Ross continues to find himself in weekly shenanigans to hide his qualifications.  To be honest, as attorneys, we here at Abnormal Use are most anxious to see what happens after Ross graduates from the rank of first-year associate and actually has to sign his own pleadings and appear solo in court.  How long can this charade last before someone checks Ross’ bar number in the system?

Like South Park, we suggest attorneys check their ethical standards at the door before watching the program.  By doing so, “Suits” becomes less like an administration of the MPRE and more like a drama worth staying up until 10:00 to watch.  Spector and Ross are brilliantly cast and the show has great potential to break the David E. Kelley stranglehold on successful legal shows.  Don’t expect to see a microcosm of the true-to-life legal profession, but expect an entertaining 90-minutes which will leave you calendaring the show for the next week.

Political Question Doctrine Bars Relief in Products Liability Action

As lawyers practicing in the neat little world of products liability, we sometimes become complacent with our narrow world, which is more often than not populated by familiar concepts like strict liability, state of the art, and warranty disclaimers.  We’re comfortable with these concepts.  We use them every day, and we can recite by name and sometimes even citation the cases that stand for those fabled and familiar principles. But every once in a while, a case comes along that requires us to leave our comfort zone and do what our law school professors challenged us to do: think outside the realm of the class in which we were sitting at that moment, and reach into concepts we (at least arguably) learned from other classes.

This was the situation facing the defense lawyers in the case Armedi v. BAE Sys., Inc., 1:10-CV-01557-JOF, 2011 WL 1707251 (N.D. Ga. Apr. 22, 2011).  The case involved the unfortunate death of Rebar Amedi, a civilian contractor working as a translator for the U.S. Army in Iraq.  Mr. Amedi was killed when the Mine Resistant Ambush Protected (“MRAP”) vehicle called a Caiman in which he was riding was struck by an improvised explosive device, commonly known as an IED.  According to the facts agreed to by the parties:

There were eight occupants in the passenger compartment of the Caiman which was designed to hold only six people. None of the occupants wore a seat belt and the doors to the compartment were not combat locked. The equipment stored in the MRAP was secured only by bungee cords and parachute cord, instead of ratcheting straps. Even though the passenger compartment was intact, the rear doors came off and it appears that Mr. Amedi was thrown from the vehicle and he sustained fatal injuries.

Mr. Armedi’s widow brought suit against BAE Systems, Inc., BAE Systems Land & Armaments L.P.; and BAE Systems Tactical Vehicle Systems LP, on April 16, 2010, in the Superior Court of Fulton County, alleging product defect, negligence, and breach of warranty claims arising out of the death of Mr. Amedi.  The case was removed by the defendants, and they immediately filed a motion to dismiss not based on defenses they learned in products class, but based on the political question doctrine and the combatant activities exception to the Federal Tort Claims Act.

We will spare your digging through your home library for that dusty Con Law book, and remind you about the factors relevant to determining if a dispute raises a “non-justiciable political question.”  If only one of the factors is present, the court dismisses the case.  Those factors are:

1. a textually demonstrable constitutional commitment of the issue to a coordinate political department;
2. a lack of judicially discoverable and manageable standards for resolving it;
3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
5. an unusual need for unquestioning adherence to a political decision already made; or
6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Likening the case to a prior 11th Cicuit Court of Appeals case on the same issue, the Court held that because the events which led up to Mr. Armedi’s death resulted directly from miltary decisions, including the use of MRAP vehicles, the timing of the convoy, and, as a prior-decided case articulated, “at the broadest level . . . the military’s decision to utilize civilian contractors in conducting the war in Iraq,” the case involved a non-justiciable political question, “because to evaluate Plaintiff’s complaint would require the court to re-examine military decisions.”  After reaching this conclusion and dismissing the case on those grounds, it did not reach the question regarding the Federal Tort Claims Act.
To us, the most interesting part of the case was the use of a defense found outside the realm of products liability.  The product itself never became the issue in the case, despite the allegations levied against them by the plaintiff on products theories.  We are used to making procedural arguments that operate the same way, but we wonder if there are other long-forgotten classes we are under-utilizing in our products cases.   Who knows?  Maybe that third-year “law in movies” class could provide some novel defenses for cases in the future.

South Carolina Tomato Farmer Sues Feds Over Recall

A South Carolina family-owned tomato farm recently sued the United States Food and Drug Administration under the Federal Tort Claims Act  seeking to recoup damages it suffered from the 2008 nationwide tomato recall over fears of salmonella contamination.  Seaside Farm, Inc. of St. Helena Island filed suit in federal court in the U.S. District Court for the District of South Carolina.   The complaint alleges causes of action of negligence, violation of the takings clause, violations of the South Carolina Unfair Trade Practices Act, and defamation.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).

According to the complaint, Seaside Farm cooperated with and and assisted in all audits and inspections of its operation prior to the start of the tomato season in 2008 and passed all inspections.  Then, in June of 2008, “at the precise time when South Carolina tomatoes are coming to market, the FDA announced a national recall of all tomatoes in the U.S.” (See South Carolina news coverage of the 2008 recall here ).  The complaint goes on to say that the FDA “improperly assumed” that tomatoes were the source of the curent salmonella outbreak, though following the recall, the FDA ultimately conceded that tomatoes were not the source the salmonella contamination.  At that point, however, Seaside Farm says the damage was done.  It seeks compensation for loss of its property, in the form of its 2008 tomato crop, as well as other general and special damages.

The FDA Law Blog reports that though the FDA issued a nationwide warning in June of 2008 for consumers to refrain from eating tomatoes, later, certain types of peppers were identified as the likely culprit of the salmonella outbreak.  The FDA thus lifted its tomato ban, but not before significant damage was done.  There was significant fallout, with some predicting that litigation likely would most certainly ensue.   According to FDA Law Blog, statutory law directs the Government Accountability Office to submit a report to Congress that reviews “new or existing mechanisms available to compensate persons for general and specific recall-related costs when a recall is subsequently determined by the relevant agency to have been an error,” and that “considers models for farmer restitution implemented in other nations in cases of erroneous recalls.”  Such provisions may fall short of the expectations of small businesses like Seaside Farm, who took the brunt of the error.