In what now seems like an everyday occurrence, scientists continue to discover more and more items that allegedly cause cancer.  Even items such as deodorant, Vitamin E supplements, sun screen, and mouthwash, which are only in the stream of commerce to provide some benefit to consumers, have been linked to the dreadful disease.  Recently, when the World Health Organization issued a report that radiation from cell phones can cause cancer, we here at Abnormal Use were not surprised.

Before you start trading in your cell phones and returning to the rotary phones of yesteryear, we suggest taking a closer look at the WHO study.  The study indicates that cell phones can possibly cause cancer, not that cell phones do cause cancer.  The study is an indicator that some evidence suggests that there may be a link between cell phones and cancer.  While we are not research scientists, it is our understanding that cancer can develop over long periods of time and be caused by a number of factors (including deodorant and mouthwash, apparently).  In order to definitively state that cell phones cause cancer, the WHO would need to conduct a series of longitudinal studies, rule out the plethora of other environmental factors, and attempt to replicate its findings.  The WHO, comprised of scientists from 14 countries, understands the art of valid research and has not leaped to the typical conclusory allegations of third-rate operations.  The WHO has simply recognized that there is at least some evidence of a link, and it would be in the best interest of all to at least warn the public.

The much more pressing question at this time is the effect of the WHO study on potential litigation.  The WHO study came just days before the U.S. Supreme Court was set to decide whether the plaintiffs’ claims in a proposed class action against 19 defendants, mostly cell phone manufacturers, were preempted by federal law.  The plaintiffs’ have claimed that cell phone manufacturers misrepresented the safety of cell phones when they knew of the safety risks.

Even if the Supreme Court holds that the plaintiffs’ claims were not preempted by federal law, it is difficult to see how potential plaintiffs can prevail against cell phone manufacturers.  Despite the WHO’s findings, plaintiffs will have a difficult time proving that cell phones are the cause of their cancer.  With the extensive list of things researchers have suggested may cause cancer, questions of whether plaintiffs would not have developed cancer “but for” the use of cell phones are difficult to determine.  Did the plaintiff ever have an x-ray?  A cold?  Did the plaintiff use tooth whitener?  These are only a few things that studies have indicated may cause cancer.  If the plaintiffs wish to use the WHO study as evidence, we suggest they be forced to rule out all the other reports, as well.

We do not know whether or not cell phones actually cause cancer.  Only time will tell.  In the meantime, we here at Abnormal Use will continue to use our cell phones and add them to the never-ending list of things that are going to one day give us cancer.  If you wish to be a little more cautious, please don’t just throw your phone away.  Certainly that radiation can be put to good use.  Defrost frozen food?  Pop popcorn?  There has to be an app for that.

Did you know that in one of the character’s earliest incarnations, Captain America was a district attorney by day? That’s right. In the 1944 Republic film serial Captain America (a promotional poster for which appears above), actor Dick Purcell played Cap, whose secret identity was prosecutor Grant Gardner. (This is a bit different than the modern version of Captain America, whose alter ego is non-lawyer Steve Rogers.).  Cap and Gardner primarily battled the nefarious villain known as The Scarab. The serial, which was apparently popular, was the first and only time Purcell would play the character, as Wikipedia tells us that he died before its official release. This information is relevant, of course, is relevant as this July will see the release of a new Captain America film with actor Chris Evans as Cap.

Headline of the week: “Studying for the Bar Exam? Despair May Stalk You.” Thanks for that, Lawyerist.

We here at Abnormal Use sometimes kind of dig the archaic complexities of the Blue Book book, but we are certainly agree with David S. Cohen of The Faculty Lounge, and his post “Complete Nonsense: The Blue Book’s Requirement for The Year of a Statute.” That particular rule we’ve never really understood (or followed much, for that matter).

After our own Nick Farr’s piece earlier this week on the new Dunkin’ Donuts sweet coffee lawsuit, how could we not link this story from Findlaw’s Legal Grounds blog about a group of Massachusetts robbers who inadvertently stole a bag of donuts instead of a bag of cash? Please submit your own donut or coffee related robbery puns for our review.

Big news today from GWB headquarters. We have opened an office in Columbia, South Carolina, bringing our total number of offices to three in two states. Here’s the text of our recent e-blast newsletter on the new enterprise:

Gallivan, White & Boyd, P.A., has established a Columbia law office which opened this week in the Capitol Center, staffed by a team of skilled litigators. We are happy to welcome to the GWB family John T. Lay Jr., Johnston Cox, John Hudson and Shelley Montague, who will be partners in the Columbia office, and James Brogdon, Childs Thrasher and Breon Walker, who will serve as associates.<

Our firm is known for having a deep bench of experienced litigators who can try complex cases. This group is cut from the same cloth. They have tried numerous cases and they are leaders in their profession and in the community, which is something we at GWB value greatly.The Columbia team has 77 years of combined legal experience and is led by Lay. They will continue to serve clients with whom they have established relationships over the years while also assisting current GWB clients and working to grow the firm as a whole.

With the opening of an office in Charlotte earlier this year led by Chris Kelly, we now have three offices in two states. Our goal is to be the best business and complex litigation firm in the Southeast, and this takes us another step toward achieving our goal. It also allows us to serve you more efficiently and effectively throughout the Carolinas.

For those of you visiting or doing business in the Midlands, our Columbia office can be reached as follows:

P.O. Box 7368
Columbia, SC 29202

Capitol Center, Suite 1110
1201 Main Street
Columbia, SC 29201

(803) 779-1833 (effective Friday, June 17)

Click here to see our earlier post on the opening of our Charlotte, North Carolina office earlier this year.

If you haven’t already, you will likely hear about some accidents involving Napa Firelite Fire Gel, which has ignited a firestorm of controversy, pictured here (h/t TortsProf Blog).  The New York Times published a story about the accidents, using some fairly inflammatory quotes, even comparing the Fuel Gel to a Molotov Cocktail.  The Fuel Gel remains the hottest gift of the summer, though, providing a lot of bang for the buck.

Lest you think my introduction replete with fire references was somewhat crass, let me suggest it was no more incendiary than the piece in the Times that, using the quotes of witnesses to the accidents, compares Firelite to the following: napalm, Molotov Cocktail, lethal weapon, and gasoline in a bottle.  Plaintiff’s lawyers are already linking to the Times piece, to legitimize their opinion that the Firegel contains a “blatant defect.”  Yikes.  I understand that completely neutral stories would not sell newspapers, but there has to be some concern about the potential impact of stories such as these on the venire.  Put between a rock and a hard place, Napa pulled the product from shelves, until a different warning could be put on the label.

While the New York Times goes out of its way to roast Napa, there is relatively little overt discussion of what probably happened.  From the descriptions in the Times, it seems that both cases of explosions were caused when an individual added more fire gel to an already ignited or hot firepot.  Now, there was a warning not to do this, but the jury question will be whether this warning was adequate.  While you and I may not put a flammable jelly-like substance into a hot container, not all are as cautious.  Did the inadequate warning cause the injuries?  Who knows?  But The New York Times is doing its part to fan the flame, and to ensure that any possible juror knows that Napa products are defective before any factfinding has taken place.

Noted Plaintiff’s attorney turned filmmaker Susan Saladoff has created quite a buzz with her documentary, Hot Coffee. The anti-tort reform film, which derives its title from the infamous McDonald’s hot coffee case, premiered at the prestigious Sundance film festival and will air on HBO later this month.  As if Sundance and HBO were not enough, Hot Coffee has even been given its own feature role here on Abnormal Use.  With all of this success, how will Saladoff ever be able to find another frivolous misunderstood case  to use to cash-in document?  Thankfully, we know that Saladoff reads Abnormal Use, and we have discovered the subject-matter for the perfect Hot Coffee sequel. Here’s our free advice.

A Pennsylvania woman has sued Dunkin’ Donuts for personal injuries after drinking a cup of coffee purchased from one of the chain’s Philadelphia locations.  According to the complaint, the woman ordered coffee with artificial sweetener, but the Dunkin’ Donuts employee mistakenly used sugar.  The sugar mix-up allegedly caused the lady to enter into diabetic shock.  As a result, she has had to alter her diabetes medication and has “sustained a loss of enjoyment of life.”

With Hot Coffee, Saladoff formulated the perfect equation for the anti-tort reform documentary:  sympathetic plaintiff + big corporation + morning beverage = success.  This recent action fits perfectly within the criteria.

Sympathetic Plaintiff

The first rule of film-making is that audiences can be hypnotized by conflict faced by marginalized characters.  Instead of an elderly woman as in the McDonald’s case, this case features a medication-dependent diabetic.  Similar to their reaction to children and the elderly, audiences will naturally sympathize with people having pre-existing conditions.  Certainly each of Dunkin’ Donuts employees should have known the medical history of each patron prior to filling an order.  At the very least, they should have been instructed that each customer is a potential egg shell plaintiff and that the substitution of sugar for artificial sweetener could result in the “loss of enjoyment of life.”

Big Corporation

The second rule of film-making is that when given the choice between David and Goliath, audiences choose David.  In Hot Coffee, Saladoff was able to garner greater sympathy for Stella Liebeck by suggesting that McDonald’s flexed its billion-dollar muscles and engaged in a public disinformation campaign to alter the public perception of the lawsuit.  While McDonald’s has not meaningfully commented on the hot coffee case since the 1990’s, Dunkin’ Donuts has already made a public statement.  According to the report, Dunkin’ Donuts’ legal liaison in the Philadelphia-region said:

[W]e encounter thousands and thousands of customers on a daily basis.  We don’t provide a customer with anything they don’t request.  If they request a medium coffee, they will get a medium coffee.  If you fail to request a sugar substitute , we can’t read your mind.  We sell doughnuts, not crystal balls.

It is so much easier to mischaracterize the statements of a corporate representative when he or she has the nerve to suggest the plaintiff was contributorily negligent.  By using this case, Saladoff wouldn’t even have to undertake her own disinformation campaign in response.

Morning Beverage

The final rule of film-making must be the inclusion of a standard morning beverage, preferably one which is consumed without incident every day for years before causing a problem. Unfortunately, after Saladoff’s documentary, hot coffee cases have now run their course.  Those suits now happen all the time because restaurants still haven’t learned that their patrons prefer their coffee to be served cold.  But people have now grown tired of these stories.

Saladoff needs something new, something that will really get an audience fired up.  Since we here at Abnormal Use are unaware of any defective orange juice cases, sweet coffee will have to do the trick.  Like the dangers of hot coffee, it is obviously foreseeable that the substitution of one teaspoon of sugar in a cup of coffee can have dire consequences.  We suggest ignoring any evidence that the plaintiff negligently forgot to request artificial sweetener.  These types of omissions happen all the time in documentary editing.  After all, you can only put so much information in a film before it becomes the next War and Peace.

After a careful review of the recent Dunkin’ Donuts action, we find that with a little exaggeration careful editing, the foundation for a successful documentary has been laid.  Because we here at Abnormal Use have so enjoyed Saladoff’s contributions to our blawg, we would like to return the favor and name her next great documentary – Sweet Coffee:  Why Didn’t I Just Mix It Myself?

Earlier this month, the State of South Carolina was awarded $327 million in damages from drugmaker Janssen Pharmaceutica, Inc., a Johnson & Johnson subsidiary, under the state’s Unfair Trade Practices Act for deceptive marketing of its anti-psychotic drug, Risperdal.  The suit alleged that the company had, for years, sent deceptive letters to doctors in which the company downplayed the links between Risperdal and diabetes.  As we previously reported here, South Carolina could have received upwards of $3 billion dollars from the suit, as the State Attorney General argued that every single prescription, sample box or “Dear Doctor” letter written since the 1990s could constitute a violation of the law worthy of a $5,000 penalty.

It was in April that the South Carolina jury found the drugmaker to be responsible.  Only recently did Spartanburg County’s Judge Roger Couch determine the amount that the company would be responsible for paying the state.  Charleston’s The Post and Courier reported that Judge Couch, in his order, wrote that Janssen knew that its drug was associated with health problems and that it intentionally hid those studies.  He said the company “systematically set about in a concerted effort to conceal that information and to manipulate the information available to the public for the purpose of protecting or improving its market share.”

The award reportedly marks the largest penalty for breaking the South Carolina Unfair Trade Practices Act and also represents the state’s largest award in a drug marketing case.  Bloomberg.com reports that on June 3, Janssen officially announced that it will appeal Judge Couch’s order.  It maintains that  company fully disclosed Risperdal’s health risks and that it properly marketed the anti-psychotic medicine.

As we previously reported, this South Carolina case is not the first of its kind.  A Pennsylvania case was dismissed in June, and another case in West Virginia was dropped in December.  A case in Pennsylvania, however, ended with a jury’s awarding of $257.7 million to the state for the drug company’s alleged offenses similar to those addressed in Judge Couch’s recent order.  As with the recent South Carolina verdict, Janssen has appealed the Pennsylvania verdict and maintains it acted properly.

Sometimes we here at Abnormal Use find ourselves nostalgic for the 1980s, and no wistful fondness for that long gone era is complete without reference to Berke Breathed’s “Bloom County” comic strip. It’s been years since we’ve seen or read the exploits of Opus the Penguin and Steve Dallas, so we were pleasantly surprised when friend of the blog Ryan Steans forwarded along a link to the comic strip above, originally published way, way back in 1986 and dedicated to the American legal landscape of the time. Enjoy.

Remember the John Grisham novel, “The Firm,” which ultimately became a big budget Hollywood flick starring Tom Cruise and directed by the late, great Sydney Pollack back in the early 1990s? Well, it’s coming to television, folks, and not as a simple remake of the book. Instead, actor Josh Lucas will pick up where Cruise left off and star as Mitchell McDeere, the lawyer who discovered that his perfect law firm job was actually a mob law firm. Reports indicate that the series will be set more than a decade after the events depicted in the film. (Incidentally, we noted back in February that 2011 marks the 20th anniversary of the publication of Grisham’s book.).

Okay, so Chuck Norris had an editorial in last week’s Wall Street Journal about lawsuit abuse? How did we miss that? Read it here. (Hat Tip: Overlawyered).

Kudos to Mike Frisch at the Legal Profession Blog for working in an Ingmar Bergman reference into the title of this post about the New Jersey Supreme Court’s recent censure of an attorney. If you didn’t know already, we here are big Bergman fans. It makes sense that lawyers would like bleak, existential films, right?

Landlord tenant law can be very interesting sometimes. Get this: The Letters of Note blog recently published this 1975 letter from Bruce Springsteen to his landlord in which The Boss apologizes for his late rent. This letter was written just a short time before the release of his epic album, Born to Run. Check it out.

Ah, the smell of diacetyl in the morning.  The mere sight of this buttery-flavored chemical makes our mouths water.

As we blogged about previously here and here, the wonderful smell this delectable combination of molecules creates has an unfortunate medical side effect – bronciolitis obliterans – otherwise now known as “popcorn lung.”  According to this piece at AboutLawsuits.com, a Baltimore County, Maryland jury recently awarded Brian Hallock, an employee of a popcorn plant owned by McCormick & Co., $5.4 million in a case he brought against Polarome International Inc. for failing to warn of the dangers of inhaling diacetyl.  That award was reduced to $814,500 pursuant to Maryland’s cap on non-economic damages. (Hat tip: Thanks to Professor Bernabe for alerting us to the verdict.).

Speaking of non-economic damages, several states have undergone debates about caps on damages in various tort reform bills in the last legislative year.  Our beloved South Carolina recently passed a tort reform bill which focused on instituting a cap on punitive damages.  You can read more about the Herculean efforts to get this passed, as well as the results, from our friend Brian Comer of South Carolina Product Liability Blog, both here and here.  Tennessee has also sent a new tort reform bill to its governor for signing.  Read about the ins and outs of that soon-to-be-law here.  Hopefully, these new laws will result in more court-instituted reductions on plaintiff-happy jury awards.  To be continued.

On some level, we miss law school.  Mostly the extended breaks between semesters, and that  cachet has been replaced by the tenth-of-the-hour.  But we thank the TortsProf Blog for providing some stimulation on the academic side, and most recently providing this link where we were able to glance an interesting paper entitled “The Taxpayer’s Burden from Product-Related Harm,” a collaboration among Ruth Ruttenberg, Jonathan Cardi, and Estye Fenton.   You can find the abstract and download it from SSRN here.  We get really excited when we get to talk about “externalities,” a word and concept far too often left out of memoranda in support of summary judgment.

So, the flavor of the paper is that tort recovery is often insufficient for individuals who suffer product-related harms, and that the economic results of the insufficiencies is the injured person being on the government dole or somehow passing along medical bills or other costs to the taxpaying public, which apparently is an ever-declining population.  The paper looks at two methodologies for tracking the externalities.  The thrust of the paper is that the externalities due to product-related harm may be as high as $1 trillion, and that the cost of products are artificially low, and the taxpayers are getting hosed.  While we agree that taxpayers generally get hosed, externalities or not, we now take a minute to explore some other issues necessarily related.

While we agree that as a general principle externalities should be internalized, we have allocated risk in a certain way that is best for society.  There is a certain systemic logic that runs through the law.  For instance, part of the paper discusses barriers to court and compensation, which contributes to the externality problem.  I would say that we need to reframe the argument.  What we have said is that if a plaintiff can’t prove a product defect, then he shouldn’t recover, or, in a sense, society would rather have the product as-is and pay for the injury.  In this sense, society perhaps has taken on the externality of the injury, but only after making a jurisprudential choice that product innovation may be worth more than that injury.  If the authors of “Burden” make the argument that externalities include one individual’s lost wages, lost taxes paid, and value of benefits paid, then certainly there is a counterargument that the designers and manufacturers produce a benefit in taxes and wages paid, and the legal burden for determining whether society or the manufacturer subsidizes innovation is whether the product is unreasonably dangerous.  If there is a systemic cost, then there should be a systemic benefit.  I think it could just as easily be argued that if the injured party is always compensated, then the systemic cost is the lost opportunity of innovation or ideas.  While externalities may be internalized, that does not necessarily mean that the cost imposed on society is necessarily lessened.  But it is impossible to measure empirically the business ideas or products that are not brought to bear or are made economically infeasible (hence less taxes or wages paid and perhaps a different set of people on the government dole).  We say all this to ask, what’s so wrong with a bit of externalities?  Isn’t inefficiency a value judgment?  But perhaps this doesn’t make any sense, as we are litigators and not professors.  After all, no matter injury or innovation, there is some kind of insurance pool, and we all end up paying.

Remember a few months ago when we – along with our pals at the Drug and Device Law blog – compiled a list of all of the rock songs mentioning lawyers? It was during that time that we discovered Chuck Brodsky’s song, “Talk To My Lawyer,” which we enjoyed and included on our list. Brodsky‘s “Talk To My Lawyer” chronicles a series of relatively minor events and their potential as lawsuits if presented to the proper lawyer.  While we have grown weary of lawyer jokes over the years, we couldn’t help but chuckle when he heard Brodsky’s tune and its reference to the infamous Stella Liebeck McDonald’s hot coffee case. We soon learned that Mr. Brodsky lives in nearby Asheville, North Carolina, so we felt we had to contact him and request an interview about the genesis of the song. So, today, Abnormal Use once again continues its series, “Abnormal Interviews,” in which the site will conduct brief interviews with law professors, practitioners, and makers of legal themed popular culture.  Note: Brodsky will be performing live this Friday night at a CD release party at The Grey Eagle rock club in Asheville, North Carolina, and we suspect he may play “Talk To My Lawyer” at that show. Finally, for those who’ve not heard the song, though, here is a video of him singing that wonderful ode to litigiousness at the Shrewsbury Folk Festival. Watch it, and then read the interview which follows.

1)  What was your inspiration to write “Talk To My Lawyer”?

Well, at the time I wrote it many years ago, probably, if I had to guess, I’d say around 1990, give or take a couple of years. I think there were just a lot of frivolous lawsuits flying around at the time.  Maybe even the McDonald’s coffee case.  I can’t remember exactly because it was so long ago, but I think it was a way to have a laugh at it, treat it with irony.

2)  Did you ever want to be a lawyer?

I joke that I do.  When I’m on stage I often tell people that I wanted to be a lawyer but my parents talked me into being a folk singer.

3)  [Besides the McDonald’s case] were there any other cases in the news that inspired any of the verses?

Not any one that I can recall after all these years but you know . . . frivolous cases come up all the time.  There probably were several that were in the news at the time, maybe a couple.  Why not have a little bit of fun writing about them?

4)  Have you had any comments from lawyers about the song?

Yeah.  Lots, and they tend to really get a laugh out of it.  It’s pretty popular.  I’ve had law firms that have bought a copy of the CD with the song on it for all their partners and employees.  I’ve never had any lawyers that didn’t laugh.  Nobody has came up to me and has taken offense.  Never meant to be offensive.  Just a little bit of irony, little way we can laugh at ourselves.

5)  How would you describe your music both stylistically and lyrically?

Well, I think I pay a lot of attention to detail.  I think my music is rooted in traditional music. . . or Americana type singer-songwriter.  I think my lyrics all have something to say.  I don’t ever write a song that’s meaningless in my opinion.  I like to tell stories, but not all of my songs are story songs.  The ones that are tend to be about real people that inspire me to words that I feel are touching and might touch other people.  But I also have commentary in my songs about the world as it is and my feelings about it.  I feel like my songs are honest.  I try to be honest.  I try to address real issues, but not in a way that makes anybody feel excluded.  That’s really not what it’s about.  It’s about making everybody feel welcome and part of it.

6)  Are you excited about playing the Gray Eagle?

I’m very excited.  I live in Asheville, and I only play there a couple of times a year and this particular show will be a CD release for a brand new album [Subtotal Eclipse].  I’m very excited.

BONUS QUESTION:  What is your favorite song about lawyers or legal themes?

Mine.  I don’t really know of any others to be honest.  I said that half jokingly.  I really am not aware of any other songs.  Oh, Warren Zevon has a song, “Lawyers, Guns and Money.”

BIOGRAPHY: Chuck Brodsky is a singer-songwriter whose music has been influenced by the mountains of Western North Carolina and traditional folk.  His song, “Radio,” appeared in the feature film of the same name.  Brodsky, born in Philadelphia, Pennsylvania, now resides in Asheville, North Carolina.