To be a good expert witness, a person should be extremely knowledgeable about the subject upon which he or she is opining.  The expert should preferably have a nice balance of practical and academic experience in his or her field, be good looking, well spoken, and able to articulate complex theories into easy to understand, layman’s terms. Oh, and one more thing.  The expert should probably wait until after he or she conducts testing on the product at issue in a case to draft his or her expert report.

In Cannioto v. Louisville Ladder, No. 8:09-CV-1892-T-30TBM, 2011 WL 2014260 (M.D. Fla. May 20, 2011), the plaintiff Robert Cannioto was allegedly injured when the 24-foot ladder he was standing on performing roofing work failed, causing him to plummet 16 to 18 feet to the ground.  The ladder was manufactured by LL. Cannioto and Home Depot, and Mr. Cannioto and his wife Bonnie Cannioto sued these two companies on theories of (1) strict liability against Louisville Ladder; (2) negligence of Louisville Ladder; (3) strict liability against Home Depot; (4) negligence of Home Depot; and (5) loss of consortium against Louisville Ladder.  The defendants filed a motion to exclude the testimony of the plaintiffs’ expert, Dr. Charles Benedict, and for summary judgment.

The plaintiffs hired Dr. Bendedict to render an opinion for them about the design and condition of the ladder at issue in the case.  Obviously, the plaintiffs wanted him to say there was something wrong with the ladder.  So, he did, writing a report in which he opined that the ladder was defectively designed.

Unfortunately, Dr. Benedict couldn’t quite get his tests, conducted after he wrote the report, to match his “findings” that the ladder was defectively designed:

In an attempt to prove his theory that the ladder failed as a result of the effect of torsional forces on a defectively designed foot, Benedict had one of his engineers set up a 24–foot extension ladder . . . in a manner similar to the one used by Plaintiff. He then had the engineer stand on the tenth rung of the fly or extended section of the ladder and violently jerk the left rail for almost 10 minutes in an effort to get the ladder to fail. The engineer also set the ladder on uneven ground and placed large weights near one of the feet in an effort to get the rail to fracture. Benedict’s assistants were unable to get the ladder rail to bend or break during the tests.

Don’t you hate when that happens?  So, the expert changed his theory from design defect to manufacturing defect.  In the middle of his deposition.  Without conducting any testing at all on the theory.

During his deposition, Benedict offered a new theory, one about a manufacturing defect rather than a design defect, as to why the subject ladder failed. He testified that the rungs were not properly or adequately attached to the rail and that the rung pulled out. This theory was not in Benedict’s expert report and Benedict admitted that he had not performed any testing to support this theory.

Prior to this week, we were unaware that there is a Capcom video game called “Phoenix Wright Ace Attorney.” (Despite our obvious nerdiness, our video game knowledge is actually fairly limited, and the last video game cartridge we recall purchasing was “Mike Tyson’s Super Punch-Out!!” back in ’88). Whatever the case, the “Phoenix Wright” game has its own comic book spin-off.  Depicted above is the second issue of Phoenix Wright Ace Attorney, published not too long ago in 2009. We must thank one of our dear readers for alerting us to this title, which is in the news this week because of a live action movie in development to be directed by Takashi Miike. According to the Comics Alliance website, in the original video game, “[p]layers take the role of rookie defense lawyer Phoenix Wright in a system where you defend your clients by gathering clues and present evidence to reveal lies and contradictions in witness testimony.” We wonder if there are extra points for exceeding monthly billable hour requirements.

Over on Twitter, Stephen Colbert tweets a possible revision to the Federal Rules of Evidence: “If a witness doesn’t want to answer truthfully, I say he should have the option to take the dare instead.”  At the very least, we think that thought should be cited in the commentary to the rules.

Quote of the Week: “It’s refreshing to find a show that can demonstrate to litigation-happy America that it’s possible, even desirable, to amicably resolve disputes without going to court.” (Radley Balko, “Fairly Legal,” Reason, June 2011 issue). Balko, of course, is referring to the USA Network series starring Sarah Shahi, which debuted in January and which was recently renewed for a second season. Revisit our January interview with the show’s creator, Michael Sardo, here. Sadly, as we noted previously, Sardo is now out as showrunner on “Fairly Legal” and the show will now be administered by a new steward. (Hat Tip: Overlawyered).

Earlier this week, Brian Comer posted an update to his site on the South Carolina tort reform bill and punitive damages caps.

Friends of the blog James Daily and Ryan Davidson of The Law and the Multiverse blog (who we interviewed here back in March) have been invited to host an online CLE. We now know how we here will meet our hours this year.

We are pleased to announce that Selective Insurance Company of South Carolina was bold enough to write coverage for Phusion Projects, LLC, the company that formerly manufactured Four Loko as we once knew it.  Four Loko took all the hard work out of mixing alcohol and caffeine at the bar by combining the two in the  manufacturing process.  Yet Law 360 informs us Selective filed a DJ  action in Illinois to clarify that there are certain suits it will not defend, based on a defense that the policy was not in force when the “bodily injury” alleged in several lawsuits occurred.

There seems to be very little of interest (at least at first glance) in the declaratory judgment complaint other than what we have previously blogged about in a prior Four Loko related post.  Namely, Selective probably thought it was pretty safe (okay, somewhat safe) insuring this company since the beverage was merely a manufacturing of an aftermarket process.    Moreover, although a DJ is always a good idea, as it puts lawyers to work who were previously not occupied, it remains to be seen whether this DJ will be effective.  After all, Selective insured Phusion while it was manufacturing Four Loko and placing it in the stream of commerce.  The dates of bodily injury in these cases may not be determinative.  There certainly will have to be some scintillating discovery on dates of manufacture, lot numbers and dates of distribution before the lawyers reach the salacious details of surrounding the consumption of the Four Loko.

We don’t claim to be actuaries (Oh, that we had made that choice), but we would be interested to know from our legion of actuary readers how one would price products liability insurance for products such as Four Loko.  We imagine the underwriter would gather some documents and get some input from actuarial and legal departments and the following exchange takes place:

UW: So, what are the chances for a lawsuit coming into being here?  I mean, this seems to be a pretty safe product.  Caffeine.  Alcohol.  There’s some kind of tagline about “blackout in a can” that’s somewhat troubling though.

Actuarial: [Speaking unintelligible secret mathy language]

In-house Lawyer: [Wearing a polo shirt, chinos, and no socks] I would put our chances at being sued at greater than 90%.  Actuary, can you account for that in your pricing?

Actuarial: [Emitting a series of beeps]

In-house Lawyer: Don’t forget to account for the irresponsibility co-efficient of drunk young adults.

And eventually, a premium is settled upon that becomes a second-guessed business decision, and indirectly punishes innovation in the alcoholic energy drink market.  Perhaps this is a good thing.

As noted in yesterday’s post on our recent interviews of Mark-Paul Gosselaar (of “Saved by the Bell” and “NYPD Blue” fame) and Breckin Meyer (Clueless and Can’t Hardly Wait), “Franklin & Bash” is a new legal dramedy in which the duo star as brash young lawyers who will do virtually anything for their clients.  The central premise of the show: these two young lawyers – fiercely independent and unorthodox – join a stuffy big firm in Los Angeles.  As you might imagine, the partners and associates at that big firm are not all appreciative of the new interlopers. We here at Abnormal Use obtained an advance screener of  the series’ pilot episode, which debuts tonight at 9/8 Central on TNT. Written by Bill Chais and Kevin Falls and directed by Jason Ensler, the pilot is whimsical and entertaining, though hardly an accurate depiction of the legal profession or life at a large law firm.

Jared Franklin (Meyer) is a quick-witted, scrappy lawyer who is perhaps trying to stand outside the shadow of his father, a well-known and apparently highly respected attorney.  Peter Bash (Gosselaar) is more of a charmer, both in his business and personal lives.  The pair’s firm might best be described as the type you’d see advertised on a bar’s bathroom-stall door (see video of their commercial–shot from a hot tub–here).  Within the first few minutes of the pilot, the ambulance-chasing duo score a client in a manner reminiscent of the “Seinfeld” episode featuring the heiress to the O’Henry! candybar fortune.  Here, a young male driver rear-ends another vehicle when he is distracted from the road by a mattress commercial, which plays on a jumbo screen near the roadway, featuring a lingerie-clad woman.  Just as Kramer and Jackie Chiles took on Sue Ellen Mischke, so, too, do Franklin and Bash take on the perpetrators of the racy mattress advertisement.

In that dispute, young Franklin and Bash find themselves facing the megafirm of Infeld Daniels. Their antics at that trial lead to the pair’s “big break” – they are offered jobs at the prestigious firm by senior partner Stanton Infeld, played by acclaimed actor Malcolm McDowell.  Both Franklin and Bash accept the offers, and so begins their “fish out of water” experience in the big, glossy litigation firm. Comedy ensues, or that’s the idea.

The show is enjoyable enough, with a number of light-hearted moments featuring the pair’s close, almost brotherly relationship.  It also offers some romantic-themed intrigue, with Bash, played by Gosselaar, still having trouble getting over an ex-girlfriend and fellow bar member, who appears to have moved on from their prior relationship.  There also promises to be some friction between the duo and Damien Karp, an Infeld Daniels attorney and the nephew of Stanton Infeld.  Karp, played by actor Reed Diamond, is suspicious of his new co-workers and unimpressed with his uncle’s decision to bring them on board at the firm.  He is positioned by the end of the pilot episode to be a nemesis of sorts to the main characters, particularly to the aggressive Jared Franklin.

There are some problems with the believability of the show, which includes scenes and dialogue far too quirky and eccentric to be convincing to viewers.  In one scene in particular, Gosselaar’s Bash is having a heart-to-heart conversation with a client in his hot tub.  Eventually, Bash stands up out of the hot tub–naked–to quickly scan the pages of a law book and pass it to his assistant, very seriously telling her to “Shepardize this case law.”  The scene comes off as a little awkward and a lot unrealistic.

As with any legal television show, there are some errors in the depiction of the law.  That is, of course, in addition to the naked hot-tubbing with a client.  For example, when Franklin and Bash begin work at Infeld Daniels, they uncover a plot by one of its lawyers to have an airline company place blame for a near accident on its pilot.  The legal issue?  Infeld Daniels represents both the pilot and the airline.  That would simply not happen in the real-life legal world, wherein the pilot and airline would be represented by separate counsel if the airline’s strategy was to blame its pilot.

In any event, for viewers who are willing to occasionally engage in a suspension of disbelief, the show offers an enjoyable glance into the lives of its two affable, fictional lawyers.  Its tone is similar to that of previous legal shows “Ally McBeal” or “Boston Legal,” which similarly offered equal parts interesting legal issues and quirky, yet endearing characters.  Don’t necessarily expect to laugh out loud, but be moderately entertained.