HBO To Air New Environmental Litigation Documentary, “Mann v. Ford,” Tonight

Of late, we’ve written much about legal documentaries. Thus, we felt obligated to inform you, our dear readers, that HBO is airing another documentary of possible interest tonight. The Civil Procedure and Federal Courts Blog has alerted us to the following:

An HBO documentary, Mann v. Ford, will air Monday, July 18, 2011, at 9:00 p.m. Eastern time.  It follows a mass action filed in 2006 arising out of the alleged negligent toxic poisoning of the Ramapough Mountain Indians’ land from the Ford assembly plant in Mahwah, N.J.

A synopsis of the film is here on the HBO web site.

We should note that we’ve not seen the program as of yet, so we cannot comment as to its merits or offer an official review.

However, if we had to guess, we’d say the makers of the film are probably not very fond of the Ford Motor Company. From the HBO synopsis: “‘Mann v. Ford’ follows community leaders Wayne Mann and Vivian Miligan and their lawyers over the course of five years as their fight for justice takes them from community centers to courtroom[s] of American justice to the halls of Congress.” The Plaintiffs in the depicted suit are represented by Vicky Gilliam of The Cochran Firm and Kevin Madonna of Kennedy & Madonna, L.L.P.

The Thoughts From My Camera blog offers some brief comments on the recent New York City screening of the documentary (attended by Robert Redford, whose son, Jamie, is one of the documentary’s producers), while Philip W. Thomas of the Mississippi Litigation Review and Commentary blog has a few thoughts, as well.

We may or may not watch this one, but if we do, we’ll be certain to let you know.

Friday Links

Depicted above is the cover to America v. The Justice Society #2, published way back in the halcyon days of 1985. We don’t recall this series all too well, although Wikipedia tells us that the narrative was set in an alternate universe and centered around the fabled Justice Society being placed on trial for treason for crimes committed during World War II. (The alleged crimes were apparently brought to life after the discovery of the diary of Batman who, in that universe, had been murdered). Note the apparent bailiff in the foreground drawing his weapon as the The Spectre threatens to disrupt the proceedings. The judge, not wearing a robe, holds his gavel while pondering his options.

Jared Wade at the Risk Management Monitor has a post of interest entitled, “No One Knows If Texting While Driving Bans Have Prevented Car Crashes.” Sure, it makes sense that they might (assuming motorists follow the law), but apparently, after a lengthy study by the Governors Highway Safety Association, no one found evidence in support of the proposition.

In light of the unveiling of Google+ (Google’s attempt to compete directly with Facebook in the social networking realm, for those of you not yet in the kn0w), Denise Howell of the Bag and Baggage legal blog analyzes its terms of service (as well as those of Google’s Picasa service) in this helpful piece. She ultimate concludes: “I’m not personally put off by the license Google asks users to grant, but it could use some clarification and adjustment on the issues of third parties and promotional use.”

Adam Waytz at Slate asks: “Will Americans be able to adapt to the autonomous car?” Back in October of last year, we here at Abnormal Use addressed the driverless car problem and what happens when technology outpaces the law. See here for that apparently forward thinking piece.

Oh, my. The Austin American Statesman reports: “The University of Texas filed suit today against actor Ryan O’Neal in an effort to seize a portrait of Farrah Fawcett by Andy Warhol that the university says was bequeathed to UT by the late actress.” We’d love to see the depositions that might be taken in that lawsuit.

We here at Abnormal Use like to think we have no fear.  Apparently, however, the pressure of opposing viewpoints has scared us into being “fair and balanced.”  According to Plaintiff’s attorney Ronald Miller, Jr. of the Maryland Injury Lawyer Blog, his criticism of our recent Hot Coffee commentary resulted in our lack of praise for the Chamber of Commerce funded documentary, InJustice.  Maybe Miller is right and we did feel pressure to exhibit our best Fox News impersonation?  Or maybe we just felt the need to note the film’s obvious biases?  We will let you decide.

Abnormal Interviews: Bob Dorigo Jones, Founder of the Wacky Warning Labels Contest

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 Bob Dorigo Jones, the Senior Fellow for the Center for America, the president of Michigan Lawsuit Abuse Watch, and the author of  Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever.   Not too long ago, we wrote about his well known Wacky Warning Labels Contest.  Intrigued, we couldn’t resist requesting an interview, which he was kind enough to grant.

The interview is as follows:

1.  What was your inspiration for the Wacky Warning Label Contest?

In 1997, I heard about a Batman cape that actually came with a label warning, “Cape does not enable user to fly,” and that got me thinking about all of the obvious warnings we see in America. Most people have seen labels like that, and since they’re not only funny, but are there because of lawsuit abuse, we thought it would be a good way to spark a national conversation about the need for common sense legal reform.  It worked, and it’s been a great vehicle for educating the public about the larger lawsuit abuse issue and how it affects everyone from job providers and doctors to the Little League, Girl Scouts and soup kitchens that feed the poor.

2.  You’ve been doing the contest for 14 years.  What has been your favorite label submission from those years, and why?

One of my favorites is a warning label on a scooter that says, “This product moves when used.”  Well, of course, it does!  The manufacturer would probably be sued if it didn’t move.  Unfortunately, accidents often happen when kids are playing, so the manufacturer put this obvious warning on its products because, in America, if you make a product, you’re constantly looking over your shoulder for the next lawsuit. It’s sad, but it’s a fact of life now.  The next time you see one of those wonderful little silver scooters that kids all around America use, look for that label!

3.  Are there any products out there that do not have labels, but should?

I don’t know about products, but there’s a service that definitely needs a warning.  Every ad for plaintiff lawyers that appears in the telephone book or on television should have a label warning potential customers that there are often better (and by that, I mean more effective and less expensive) ways of solving disputes than lawsuits.  Many people who have legitimate grievances or injuries pay tens of thousands of dollars or much more to lawyers for problems that they could solve themselves or through mediation that might cost as little as $100 to $200.

4.  Have you noticed any recent trends in product labeling that you believe litigators should be aware of? If so, what are they?

One trend that troubles me is that labels are becoming so long and filled with so many obvious warnings that many people don’t read them anymore.  Certainly, there are many warning labels that aren’t wacky and that we all need to read, but there are also user guides that are so long that they have to come with a special key section just to explain the warning labels.  The Food and Drug Administration is well-aware of the problems caused by overwarning and therefore goes to great lengths, although they aren’t always successful, to keep warnings on medicines short and to the point.  I think this is wise.  People need to know about dangers that aren’t common sense.

5.  What do you think these labels tell us about our collective mindset in this country, if anything?

After reading all of the labels in this country that warn us about the obvious, people might think Americans are idiots.  I’m not that cynical.  We’re smart people, and by the way, we’re not anymore likely to hurt ourselves using a product than a person in any other country.  However, these labels do tell us that Americans have a litigation problem and that a certain segment of the population is willing to overlook personal responsibility and sue someone else when they injure themselves.  Even worse, a certain segment of the judicial profession is willing to allow these lawsuits in their courts.  My hope, by working with the Center for America, is to increase public awareness of this problem and help create a collective mindset that is unwilling to accept abuse of the civil justice system any longer.

6.  What do you say to consumer advocates and lawyers who believe these types of labels are necessary?

I ask them why there isn’t any evidence that Americans are better off for all of these warnings.  People in other advanced, industrialized countries like Germany, France, Japan and Australia aren’t being warned like we are that a scooter moves when used, but they aren’t piling up injuries faster than we are.  How do I know?  Because reporters from those countries have come here regularly to interview me and have told me so.  They don’t understand why we put up with the lawsuits that lead to these obvious warnings.  So where’s the benefit?  The only ones benefiting are the personal injury lawyers who now make so much money that they can run ads on TV all day long when legitimate product makers can’t even afford to do that.

Beyond that, I say to the so-called consumer advocates and personal injury lawyers that America is worse off today because of all of the fear they have created in our lives.  Many product makers have refused to bring consumer-friendly products to market because they fear being sued.  This is true in many areas, but it is worst in the area of medicine.  The long warning labels they’ve made necessary on drug packaging are bad enough, but when a mother dying of cancer has to leave her children to go to another country to get medicine that’s not available here because of America’s litigation problem, we have to say, “Enough is enough!”

7.  What do you believe is the best – or the funniest – pop culture depiction of a product label or products liability issue?

One of the funniest things I’ve ever seen is a spoof commercial for a product called “Happy Fun Ball” that aired on “Saturday Night Live” several years ago.  It has a warning that takes up about 90 percent of the commercial and is probably where America is heading if we don’t get a handle on our lawsuit problem.  If you’ve never seen it, I would highly recommend it. Also, one of the funniest books I’ve ever read about frivolous lawsuits was written by a former producer at “Saturday Night Live.”  James Percelay wrote a book called Whiplash! that is the first book you should get after you buy Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever!

BIOGRAPHY: Bob Dorigo Jones, who serves as Senior Fellow for the Center for America, is the author of the bestselling Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever. He is the host of a new national radio/Internet commentary, “Let’s Be Fair.” He has also appeared on dozens of national and international TV and radio programs, including NBC Nightly News, ABC News’ 20/20, BBC WorldNews, FOX News, and CNBC.  He also serves as president of Michigan Lawsuit Abuse Watch (M-LAW), a Center for America partner organization. Prior to joining CFA and M-LAW, Dorigo Jones served on the staff of the Michigan House of Representatives. He received a B.A. in economics and political philosophy from James Madison College at Michigan State University.

Multiple Lawsuits Filed in South Carolina Over Allegedly Explosive Decorative Firepots

With summer in full swing, families head to their porches and patios to enjoy the long afternoons and evenings in the outdoors.  In two recently filed lawsuits, multiple plaintiffs allege that they suffered serious injuries during those afternoons outside when decorative firepots exploded or burst into flames, splattering them with flaming fuel gel.

Plaintiffs’ mega-firm Motley Rice, based in Charleston, South Carolina, has filed two lawsuits – one in state court in Charleston and the second in South Carolina federal court.  The first of those involves a West Ashley woman who suffered second- and third-degree burns on the lower half of her body when her firepot full of citronella gel allegedly exploded and engulfed her legs with flames.  Smilowitz v. Napa Home & Garden, Inc, et al., C.A. No. 11-CP-4202 (S.C. June 2011).  Charleston’s The Post and Courier covered the story near the May 21, 2011 incident, prior to the time suit was filed.  The second suit was filed by two Florida residents who allege in their complaint that on May 25, 2011, they were visiting relatives in Spartanburg, South Carolina, when a “torch-like” flame engulfed one individual, who was transported to a burn center in Augusta, Georgia, with second- and third-degree burns over 30% of her body.  The second plaintiff in that suit alleges he suffered serious burns while trying to extinguish the fire.  Satterfield v. Napa Home & Garden, Inc. et al., C.A. No. 7:11-CV-01514-JMC (D.S.C. June 2011).

Both of these South Carolina complaints name as defendants the manufacturer, Georgia-based Napa Home and Garden, as well as Fuel Barons, Inc. and Losorea Packaging, Inc.  They both involve Napa Firepots, which are outdoor glass or clay pots with open fuel gel containers.

These South Carolina incidents are not the only ones of record.  ABC News recently covered [link includes video] a similar incident involving a New York teenager who suffered third-degree burns to his face while preparing for a wedding reception in his cousin’s backyard.  The Consumer Products Safety Commission has reportedly since issued a warning on the gel fuel used in the firepots.  The “jelly-like” substance, it says, can easily get onto clothing and skin when on fire and can be difficult to put out with water or smothering.  With numerous reports of injury and an untold number of the products sold, additional lawsuits are likely to follow.

South Carolina’s College Football Stadium Parking Jurisprudence

If there is one thing we here at Abnormal Use take seriously, it’s college football. Among our writers and contributors and fellow lawyers here at Gallivan, White, & Boyd, P.A., we boast fans of the University of South Carolina, Clemson, Notre Dame, and the University of Texas.  When the autumn arrives, you can rest assured that we are talking stats and plays when we are not otherwise toiling or blogging. But, dear readers, imagine our dilemma! We here are perpetrators of a legal blog dedicated to the discussion of products liability! Rarely, if ever, are we permitted to discuss football on these fair pages!  But the fates have smiled upon us! The South Carolina Court of Appeals recently issued an opinion dealing with the contentious issue of football stadium parking which, though not exactly related to products liability, is important enough to bring to your attention.

Last week, The State reported on a family of South Carolina Gamecock fans who sued the University of South Carolina after the university began charging them a hefty $595 for their three parking spots near the fabled Williams-Brice Stadium.  The family alleged that they were entitled to free parking by virtue of a $140,000 donation they made in 1987 for a Lifetime Silver Spur membership in the Gamecock Club.  The family had parked for free for nearly twenty years until the school began charging for the privilege in 2007.  The university attributed the change to its efforts to raise money in order to compete with the facilities of other Southeastern Conference members.

Enter the courts. Following the Rosens’ suit against the university, the trial court granted the university’s motion for summary judgment on the grounds that the relevant written contract was not ambiguous and failed to identify any of its listed privileges as “free.”  The trial court also found that as lifetime members, the family, by virtue of its $140,000 donation, only received the “benefit” of maintaining their donor level with the Gamecock Club.  During the final week of June, in an unpublished opinion, the South Carolina Court of Appeals reversed, holding that the contract was ambiguous on the parking issue, primarily due to the family’s 20-year history of free parking. See Rosen v. University of South Carolina, No. 2011-UP-331 (June 27, 2011) (unpublished). In so doing, the Court of Appeals, in an opinion authored by Justice Huff, noted:

At oral argument, the University urged this court to consider that the Rosens paid for football tickets, including the increases in football ticket prices, as the “customs, practices, [and] usages” of the Gamecock Club.  In considering the payment of ticket prices, we must also consider that during the same time period, the Rosens were not required to pay for the parking spaces.  Exhibit A [of the contract, which listed the benefits and priorities the Rosens received] made no distinction in the language used describing the tickets and parking spaces.  It neither stated additional charges would apply or that the benefits would be free.  When considering “the customs, practices, [and] usages” of the Gamecock Club that despite similar language, the members paid for tickets but did not pay for parking, we find the contracts to be ambiguous as to the parking issue.

The unpublished opinion drew a concurrence and dissent from Justice Pieper, who agreed with the court on the parking issue but not on an unrelated – and far less interesting – beneficiary issue.

We here at Abnormal Use must commend our Court of Appeals.  If anyone is willing to pay $140,000 for the privilege of attending college football games, they probably deserve some benefit. (There’s got to be some equitable Latin phrase from jurisprudence echoing that sentiment, right?). Whatever the case, the college football season officially begins in just a month and a half, and we’ll have to resist the urge to blog about that most important of subjects when September arrives.

Film Review: Brian J. Kelly’s “InJustice” Documentary

Two weeks ago, we here at Abnormal Use offered our review of Plaintiff’s attorney Susan Saladoff‘s anti-tort reform documentary, Hot Coffee, which discussed, in part, the infamous Stella Liebeck McDonald’s hot coffee case.   We were critical of the film, chastising Saladoff for her editorial choices and potential lack of objectivity, particularly in light of her past as a trial lawyer and affiliation with numerous Plaintiff’s lawyers organizations.  Tonight, at 10/9 Central on the ReelzChannel, filmmaker Brian J. Kelly premieres his own documentary and analysis of the courts, InJustice. This project was funded in part by the U.S. Chamber of Commerce, one of Saladoff’s favorite targets in her own film.  Just as we warned you of Saladoff’s possible bias, so too must we advise you that Kelly’s documentary (which excoriates the legal system and the Plaintiff’s bar in particular) may not come from the most objective of sources.  Kelly was kind enough to grant us an interview regarding the film and its agenda.

InJustice purports to offer an in-depth look at the rise and fall of the so-called “kings of torts,” the wealthy and successful Plaintiff’s lawyers like Richard Scruggs, Melvyn Weiss, and William Lerach.  In so doing, Kelly seeks to illustrate the alleged faults of America’s litigation system.  Using interviews with lawyers, InJustice suggests that class-action attorneys have enriched themselves by perpetrating questionable asbestosis, silicosis, tobacco, and securities litigation, while their clients see little, if any, of the spoils.  The film also highlights how these kings of tort made their fortunes outside of the courtroom.  Specifically, the film digs up a quote by Scruggs, who apparently once remarked that the practice of law is a three-legged stool:  legal tactics, political pressure, and public relations.  The men used this hypothetical three-legged stool to perfection, pressuring corporate defendants into settling allegedly baseless claims without ever actually taking the cases to trial.  The men appeared invincible until their questionable tactics backfired on them.  InJustice closes with the story of how each man found himself facing his own judicial woes: judicial bribery (Scruggs), concealing illegal payments to clients (Lerach), and conspiring to improperly pay off plaintiffs (Weiss).

InJustice features interviews with defense lawyers who practiced with Scruggs, Weiss, and Lerach; however, the most compelling interview probably comes from attorney Charles Merkel, Jr., who described Scruggs’ use of the three-legged stool analogy.   Through these interviews, the film aims to demonstrate how well-trained plaintiff’s lawyers can manipulate the system and make millions of dollars without ever seeing the inside of the courtroom.  The story is intriguing and well-told; however, we here at Abnormal Use question whether these so-called kings of tort are a representative sample of the civil litigation system.

Like Hot Coffee before it, InJustice advances an agenda, and Kelly does so well.  Those who watch the documentary will likely be disgusted with the way the kings of tort are portrayed as manipulating the legal system for their own pecuniary gain.  Certainly, the extrajudicial tactics, coupled with the criminal consequences, of the film’s subjects may leave many viewers believing corporations are often the victims in trumped up class action lawsuits.  However, as noted above, InJustice is crippled by one major problem – films funded and promoted by special interests groups can never paint the whole picture or be relied upon as an objective account of a societal problem.

Unlike Saladoff, Kelly is not a lawyer.  Prior to making his new documentary, he made films about such things as the Blue Angels and the Cuban Missile Crisis. However, just like Saladoff, Kelly uses the documentary medium to promote his own opinions about the faults of the legal system. Like Saladoff before him, Kelly acknowledges that there are two sides to every story.  In an interview with Abnormal Use, Kelly insisted that he “tried to look at the other side that’s not typically covered.”  Unlike Hot Coffee, which Kelly believes is “based on opinion,” Kelly told us that with InJustice, he was looking at “right and wrong.”  In a sense, Kelly is correct – InJustice does focus on fully adjudicated cases and leaves much of the speculation up to the viewers themselves.  However, InJustice, like Hot Coffee, is an opinion piece, using stories of a few to draw categorical inferences on the system as a whole. In fact, it was Kelly own bad experience with the legal system that prompted his desire to make the film.  In a recent interview, Kelly told The Blog of Legal Times that he decided to pursue the project, in part, due lawsuit filed against him by a prior tenant.  Kelly prevailed in the suit, but only after amassing $80,000 in expenses defending against the plaintiff’s claims.

Not only does Kelly exhibit a potential bias against the legal system due to that suit, so too does the film’s principal sponsor, the U.S. Chamber of Commerce and its Institute for Legal Reform.  In our interview , Kelly noted that he initially pitched the film to cable network channels such as the Discovery Channel but received little interest.  A business associate in Washington, DC connected Kelly with the U.S. Chamber of Commerce, which ultimately invested in the project. Kelly insists that he accepted their support only upon the precondition that he would maintain editorial control.  Says Kelly: “We were able to work out a deal where they knew what we were out to do.  They really had to let us go and trust us to do what we set out to do.”  However, in the screener of the film we saw, the U.S. Chamber of Commerce is never specifically acknowledged as a producer or funding source in the film’s credits (although it is promoting the film and noting its support on its websites here and  here). Accordingly, it will be very difficult for InJustice to maintain its sense of independence and credibility, particularly in light of recent criticism by people like Saladoff who contend that the U.S. Chamber of Commerce is mounting a secret campaign to influence public opinion on the judicial system. In fact, InJustice may play right into their hands.

Indeed, we here at Abnormal Use were initially contacted about the film by a Washington, DC consulting firm, Hamilton Place Strategies.  On its website, Hamilton Place bills itself as a bipartisan policy and communications firm, an odd entity to be promoting a television documentary film.  The firm’s public policy advisory unit, HPS Insight, was founded by two alumni of the George W. Bush administration.  Further, that firm’s partners include members of President George W. Bush’s staff and advisers to Senator John McCain and Representative Paul Ryan.  If the firm has any members affiliated with the Democratic Party or more liberal groups, it was not readily apparent on the website.

We’re somewhat troubled by the arrival of two documentaries arriving with weeks of each other both attacking the judicial system from different perspectives. If Hot Coffee and InJustice were screened together, many viewers would probably leave the theater believing that the denizens of our judicial system – from the Plaintiffs lawyers suing corporations to the corporate defendants themselves – are corrupt and dominated by parties only out to protect their own self-interests by whatever means necessary. As officers of the court, we’re not sure that’s the best message to send, nor do we believe that the system is beyond repair (or even as disabled as Saladoff and Kelly contend).  Hot Coffee and InJustice both fail in one key aspect – they focus on exceptions rather than rules.  Saladoff’s selective presentation of the cases in Hot Coffee does not mean that tort reform is unnecessary, nor does Kelly’s highlighting of the ill-advised tactics of Scruggs and Weiss offer proof that all trial lawyers are somehow sinister and corrupt.  The cases presented in these two films are sensationalized exceptions, not the judicial norm.  In the end, though, InJustice is an opinion piece no better or worse than Hot Coffee.

Defense Verdict in Jamie Leigh Jones Case

Yesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.  See Jones, et al, v. Halliburton Co.,  et al, 4:07-cv-02719 (S.D. Tex.). Jones sought damages against the company in the amount of $145 million, claiming that KBR created a hostile sexual work environment at her barracks in Iraq.

The Houston Chronicle reports:

Jurors in a federal courtroom on Friday rejected a former Conroe woman’s claims that she was drugged and raped by several Kellogg Brown & Root firefighters while working for the company in Iraq in 2005.

The jury also rejected Jamie Leigh Jones’ claims that the former Halliburton subsidiary committed fraud by “inducing her to enter into an employment contract.”

By answering “no” to those two questions, the jurors rendered the other 12 questions in the jury charge moot, bringing an end to the month-long trial of Jones’ lawsuit.

We mention this verdict today because the Jones lawsuit was prominently featured in Susan Saladoff’s recent documentary, Hot Coffee, which we reviewed previously here. Specifically, the film chronicled Jones’ inability to have her claims heard by a jury due a mandatory arbitration clause in her employment contract (although we here at Abnormal Use did not explore the Jones case in our review because our interest in the film was prompted primarily by its discussion of the Stella Liebeck McDonald’s hot coffee case).  In 2009, the Fifth Circuit ruled that Jones did have the right to have her case heard by a jury. See Jones v. Halliburton Co., 583 F.3d 228 (2009).

Friday Links

Above, you’ll find the cover of Wolff & Byrd, Counselors of the Macabre #4, published sometime in the mid-1990s before the series’ name was changed to Supernatural Law. Note the tagline: “Beware The Creatures of the Night – They Have Lawyers!”  We must confess a general unfamiliarity with this series and the characters who appear therein, though according to Wikipedia, they’ve been around since the 1970s. Who knew?

PHM at The Civil Procedure & Federal Courts Blog feels compelled to “put anything that includes the phrase ‘tort reform’ in quotation marks,” including The American Tort Reform Association. Sure, it’s an advocacy group, but we don’t put the Plaintiffs’ bar group, the “Association for Justice” in quotation marks because that’s what they’re actually called.  It’s like using the phrase “so called” when something is actually called that. Oh, well.

We don’t discuss constitutional law much here at Abnormal Use, but after learning of last week’s ruling in Brown v. Entertainment Merchants Association, in which the Supreme Court struck down a California state law restricting the rental or sale of violent video games to children, we may have at least one comment on the subject. Like most, our first thought was, “How many sitting Supreme Court justices have actually played a video game?” And then we skimmed the opinion. But today, we direct you to this article by friend of the blog and Pennsylvania lawyer Jay Hornack (a/k/a Panic Street Lawyer), who analyzes the ruling in far more detail.

We here at Abnormal Use have been called many things, but it’s been a while since someone said we were silly. Alas, Ronald V. Miller, Jr. at the Drug Recall Lawyer Blog did so last week, chiefly because he didn’t like our recent post calling for Reed Morgan, the Plaintiff’s lawyer in the Stella Liebeck McDonald’s hot coffee case, to release the transcript. Ouch! Oh, well. All we want to do is read the transcript! Is that so wrong? McDonald’s isn’t talking (nor have they done so much on this case since ’94), and the courts sure aren’t likely to have a 17 year old trial transcript. So, that leaves us with the the Plaintiff’s lawyers who represented Liebeck. Considering that many, many Plaintiffs’ lawyers spent much of last week praising Susan Saladoff’s “Hot Coffee” documentary and clamoring for the real “truth” behind the Liebeck case, we thought Liebeck’s lawyer might naturally want to serve that interest and release the transcript for posterity. What better way to expose the truth? But I guess that’s just silly. (In other news, the ABA Journal referenced some of our work on the hot coffee case, as well. You can see that piece here.).

Mark Cuban’s Motion for Summary Judgment (And What It Means)

By now, you have all seen the infamous motion for summary judgment filed by Mark Cuban in the law suit brought by a company alleging that Cuban had mismanaged the Dallas Maverick basketball franchise.  The four page motion – which can be found here – is brief and amusing, as it uses imagery in the body of the motion to suggest that the claims against Cuban are baseless. (Apparently, because of its novelty, some law professors are already teaching the motion in class.). On its second page, the motion includes a large photograph – which takes up nearly half the page – of Cuban and the Mavericks celebrating their recent national championship win.

Cuban’s motion reminds us of a post we did late last year encouraging the use of such tactics.

Back then, in a post on modernization of judicial opinions, we noted that attorneys haven’t traditionally included images in motions and wrote as follows:

[T]his is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.

These days, with so much information on the Internet, with so many visual learners, with so many maps, photographs, schematics, images, and so many other types of non-prose information, we believe that embedding images into one’s motions is a growing trend and may in fact help and simplify issues.  In a products case in which the product at issue is relatively obscure, a photograph accompanied by a brief description can speak volumes more than a lengthy technical treatise.  If location is an issue in the case, then a photograph of a scene might be appropriate, provided that the photograph is, of course, favorable to your argument.  If the distance between two sites is at issue, then a Google map screen capture can be input into the motion itself to showcase the distance at issue. There are many, many options.

We as lawyers use words by trade, but often we use far too many of them.  The readers of our motions and briefs have much to do and many other items to review.  We suspect that they, most of all, would appreciate efforts to simplify the briefing process.  After all, a picture is worth a thousand words.

Just ask Mark Cuban.

Jurisdiction of Federal Court Determined by Distributor Liability Analysis

For defendants in products liability actions, the issue of distributor liability is a maddening, state-by-state patchwork of different rules and laws.  The same conduct by one distributor of a product across many states may make it liable for any injuries caused by the product in one state, yet immune from liability in another.  Not only can the role of the distributor be crucial from a liability perspective, but it often has jurisdictional implications as well.  This was the case in Martin v. Medtronic, Inc. and Saracare Corp., 5:11-CV-144/RS-CJK, 2011 WL 2473318 (N.D. Fla. June 22, 2011). The issue was the plaintiff’s motion to remand, i.e. whether the Northern District of Florida had jurisdiction to hear the case at all based on diversity of citizenship.  The plaintiff had sued Medtronic, Inc. and Saracare Corporation on products liability theories, including strict liability, after the death of her decedent allegedly caused by a defective insulin pump.

For diversity purposes, the plaintiff was considered to be a citizen of Florida; Medtronic was a citizen of Minnesota; and SaraCare a citizen of Florida.  No diversity, right?  For all of you with recent memories of law school (which are, alas, distant memories for us), you will understand that the correct answer is always, “Well, it depends!” (For all of you readers who do have recent recollections of law school, be forewarned:  This is also always the right answer in “real life” legal situations, as well). Whatever the case, the jurisdictional question hinged on whether or not SaraCare was a “sham defendant,” in which case the Court would not consider its citizenship for diversity purposes (meaning that there would be diversity after all).  And, since SaraCare was alleged to be a distributor of the insulin pump, the Court’s jurisdictional analysis focused on the potential liability of SaraCare as a distributor. As the Court summarized:

Generally, strict liability extends to those in the “distributive chain” including “retailers, wholesalers, an d distributors.” Strict liability is applicable to distributors of medical products. Strict liability, however, does not generally apply to doctors or hospitals that use a defective medical device incidental to their services.  Similarly, strict liability does not apply to pharmacists who simply dispense prescription drugs and play no role in their preparation.
In this case, SaraCare performed two functions:  first, it confirmed that the letter of necessity met the guidelines of the decedent’s insurance company for reimbursement, and second, it took the order for the pump and routed it to a Medtronic distributor.
The Court determined that SaraCare’s actions were more akin to a traditional distributor than a pharmacist and held that “because Plaintiff claims the pump malfunctioned, the traditional medical device line of strict liability cases governs.”  As such, the strict liability claims could be maintained against SaraCare, and it was determined not to be a sham defendant.  With SaraCare remaining in the case, no complete diversity existed, and the case was remanded to state court.