Friday Links

This is not an intellectual property blog, although we couldn’t resist sharing the cover of The Adventures of Bob Hope #68, published way, way back in 1961. Hope, the comedian and star of the eponymous comic book series, appears at the Patent Office with a crate labeled “Top Secret,” which he claims contains “the greatest invention ever.” This appears to upset the caveman sitting nearby his own invention, the wheel. Something tells us this is not an accurate depiction of the patent application process as it existed in the early 1960s.

Maxwell Kennerly of the Litigation and Trial blog has a very interesting post on “The Three Types of Practicing Lawyer Blogs.”  He divides law blogs by practicing lawyers into three categories: the mainstream, the personalities, and the marketers.  And guess what? He identified us as an example of a personality blog! Says he: “The personalities are the single lawyer or handful of lawyers who write when they’re inspired, and they’re written with a distinctive voice. These blogs can range from analysis of case law (e.g., Drug and Device Law, D & O Diary) to personal observations about law (e.g., Erik Turkewitz, Associate’s Mind, Day on Torts) to a mixture of both (e.g., China Law Blog, Abnormal Use) . When someone mentions the ‘blawgosphere,’ they’re usually talking about those blogs — not least because those blogs are far, far more likely to link out to other websites and to engage in discussion with one another. ‘Organic’ is an apt description.”  Check out the full post.  In it, Kennerly offers the wisest advice one can give to prospective law bloggers: “Don’t feel compelled to write a particular type of blog; write what you like to write and get good at it, or it will suck and you will hate it.” We just discovered the post last night, and we may offer a more substantive response in the coming weeks.  We love blogging about legal blogging, after all.

Did you know that yesterday was National Coffee Day? We’ve written much about hot coffee lawsuits this past year, but it all began with our Stella Liebeck McDonald’s Hot Coffee FAQ, which we published in January in an attempt to dispel myths about the infamous lawsuit.  In writing the piece, we relied only on the original sources, those being the actual pleadings and motions in the case, as well as some contemporary media coverage of the verdict and settlement from 1994.  To celebrate this week’s National Coffee Day, take a look back at that FAQ here.

Well, I guess we’re going to have to buy new iPhones now.

You’ve got to hand it to Steve McConnell at the Drug and Device Law Blog.  In a post he ran Monday, he begins a paragraph recounting his memories of Nirvana’s “Smells Like Teen Spirit” with a Sgt. Pepper reference! (“It was 20 years ago today,” begins the old Beatles song, and Nirvana’s most famous song appeared on the Nevermind album 20 years ago this month). And the post itself is about a new Seventh Circuit opinion on “the standard of review for a district court’s refusal to permit an amended complaint.”  How did he tie it all together, you may ask? The musical references are to songs with misheard lyrics, while the new Seventh Circuit case is about unintelligible allegations in a pleading.  Nice.

Winner Winner Chicken Dinner

This past weekend was awful. Things started out innocently enough on Friday night. Several of my friends were heading out to celebrate a birthday, and we started out the evening’s festivities with dinner at a restaurant in downtown Greenville. Without naming the restaurant, suffice to say, the main menu item is chicken. I had my usual order of chicken strips smothered in BBQ sauce. We finished dinner, went out on the town, and had a great time. There was no reason to suspect that trouble was brewing. But it was. And it wasn’t just brewing, it was incubating.

I woke up Saturday morning with a sneaking suspicion that something was awry. I couldn’t quite put my finger on it, but I felt that something was amiss. It’s never good when you wake up in the morning and believe that right then, at that moment, that is the best you are going to feel all day long. It’s even worse when your intuition is right. After being awake for 15 minutes, my body informed me that I had brought something home from dinner with me: a friendly little bacteria called salmonella. I’m not going to lie. The next 12 hours were awful. I had chills; I had sweats; I had all the other unpleasant accoutrements of food poisoning.

Now, I feel compelled to say that my stomach is usually not so sensitive to food. I have punished my body with God-awful foods much more often that I should. I have eaten meat straight off a whole cow roasted over an open flame. I have drunk water straight out of mountain streams and lakes. Once, when I was Nicaragua, I stopped at a roadside shack to get an afternoon snack that consisted of a tortilla marinated in unrefrigerated cream. None of these caused any gastro-intestinal distress whatsoever, let alone the distress that I suffered through on Saturday.

How bad was it, you ask? Let me tell you. Before being poisoned by my chicken dinner, my Saturday plan involved taking my girl up to Hendersonville to go apple picking on what turned out to be a gorgeous September day. After that, I planned on watching college football in the afternoon, and then heading to a buddy’s house to play poker and watch the UFC fight. After being poisoned by my chicken dinner, though, my Saturday plan involved laying on my couch praying that I would avoid severe dehydration. Thankfully, I had an excellent nurse to take care of me. And I thought it was only fair that she should have control of the TV. So instead of watching football in the afternoon, we watched “The Golden Girls,” “Project Runway,” and “Teen Dads.” And instead of poker and UFC in the evening, we watched Jane Eyre. Here’s the thing: I was in so much pain I didn’t care. We could have watched “Disney Princesses on Ice” (and probably would have had that been on) and I would have been just as agreeable. My only limitation was that I could not watch any food commercial. It was too much for my stomach to bear.

Now that I’m on the road to recovery, I have spent the last few hours searching for the silver lining to this big, disgusting, dark cloud. It took some looking, but I think I found it. Abnormal Use is a products liability blog. When we think about products liability issues, we tend to think of multi-million dollar cases involving complex, sophisticated machinery. But the world of products liability is much broader than that. In fact, the one product that everyone uses every day and which we probably don’t think about as forming the basis of a products liability claim is the very food we eat. This is probably due to the fact that you never really hear about food-based products liability lawsuits. One reason is a proof issue. In my case, how do I know that my chicken dinner on Friday night caused my food poisoning and not something else I ate, or some other pathogen altogether? Apart from the fact that seeing an ad for chicken sandwiches causes my stomach to turn, I really have no evidence. Another reason for the seeming rarity of food-based products cases is damages. What are my damages? Obviously, the price of the dinner would be compensable; and let’s not forget my pain and suffering. But beyond that, quantifying an amount of damages would be very difficult (apart from the rare case of food poisoning that causes emergency room treatment). And so, between difficulties with proof and damages, bringing a case of this type becomes economically unreasonable.

Regardless, though they may not get as much attention as the types of claims we normally write about, food-based claims are just as much product liability issues as anything else that appears on Abnormal Use. And unless you’re growing and preparing your own food, at one time or another, we have all most likely been potential plaintiffs in food-based product liability claims.

Beware: Packaging Defect May Lead to Unwanted Pregnancy

Last week, Qualitest Pharmaceuticals announced that it was recalling birth control pills due to a packaging error which left women at risk for unplanned pregnancies.  Qualitest discovered that select blisters were rotated 180 degrees within the packaging. As a result, the weekly tablet orientation was reversed and the daily orientation was incorrect.  According to the report, no immediate health risks were expected (except the possibility of pregnancy, of course).  This recall poses a few intriguing issues.

First, it is rare to see a drug recalled due to its packaging under these circumstances.  Drug recalls themselves are not uncommon.  Certainly, we can all remember at least one drug pulled from the shelves after the discovery of adverse side effects.  However, recalling a drug due to a packaging error is a completely different story.  If a product is recalled due to a “packaging error,” we might expect it to be the result of mislabeling or an injury-causing plastic bottle.  Seldom, does a packaging error actually affect the performance of the drug itself.

The fact that the mere 180 degree rotation of a product’s packaging can render a product completely ineffective seems curious.  If Crayola accidentally packaged its product in reverse-rainbow order, the crayons would not cease to become coloring utensils.  One would think that if a company is capable of designing a product that can alter reproductive hormones and prevent unwanted pregnancies, it could also design a package not affected by a reverse rotation is what a popular vascular doctor notes.

Second, what legal liability may Qualitest face as a result of this error?  We anticipate plaintiffs who have experienced an unwanted pregnancy will expect to hold Qualitest accountable.  They may elect to assert a claim for wrongful pregnancy; however, this cause of action is typically filed against medical providers for failing to perform a sterilization procedure correctly.  If a medical provider can be held liable for failing to perform a vasectomy, so too might a pharmaceutical company for negligently packaging its birth control pills.  If the plaintiffs are unable to assert a wrongful pregnancy cause of action, it is unlikely their “unwanted children” would have a cause of action for wrongful life.  Only a small number of states permit wrongful life actions, and those that do typically require the child to be born with some birth defect.

Third, even if plaintiffs have a cause of action against Qualitest, there most certainly would be some issues of comparative negligence.  While the birth control pills may have been rotated and disoriented, they are also color-coded – the first three weeks of hormone-producing pills are one color, while the last week of placebo pills is another.  By taking these pills on a monthly basis, plaintiffs would undoubtedly have noticed this distinction.

What should we learn from all of this?  Two things: 1) If you are a consumer of birth control pills, check your packaging to make sure you are staying on schedule; and 2) If you are a manufacturer of birth control pills, try using circular packaging.

The Fight Over The Crashworthiness Test in Florida

We here at Abnormal Use have blogged about a few cases involving the Crashworthiness Doctrine, otherwise known as enhanced injury cases.  As we have discussed before, the theory is that although a plaintiff might have suffered a finite number of injuries and damages because of an initial accident or occurrence, his injuries are exacerbated, or he suffers additional injuries, because of some product defect.  More recently, we discussed the concept of comparative fault as it pertains to these cases in the context of a Montana Supreme Court decision.  Read our prior post here.

This week, we were alerted by fellow blawg The Product Liability Monitor to a fight that has been occurring in Florida over this doctrine, which started when the Florida Supreme Court issued its decision in D’Amario v. Ford Motor Co., 806. So. 2d 424 (Fla. 2001) [PDF].  Like the Montana case, the dispute centers on this idea of comparative fault.  A prior post by The Product Liability Monitor summarized the facts and procedural posture of D’Amario as follows:

In D’Amario, the plaintiff was riding in a 1998 Ford Escort when it crashed into a tree.  After hitting the tree, the car burst into flames.  While the driver – who was intoxicated at the time – was killed, the plaintiff survived but suffered serious injuries.  Subsequent to the crash, the passenger’s mother sued on behalf of her son, alleging that the car’s relay switch failed to disengage the fuel pump on impact.  This, she alleged, caused the post-collision fire and the injuries to her son.  At trial, the jury was permitted to consider evidence of the driver’s negligence and thus, the issue of comparative fault.  In doing so, it found for the defendant car manufacturer.  Id. at 428.  On appeal, the Florida Supreme Court reversed.  That court held that while the principles of comparative fault may apply to the causes of the first collision, they do not apply in crashworthiness cases where the sole focus is on the secondary injury. Id. at 441-42.

Well, the Florida legislature didn’t find that to be a wise holding.  In fact, the Florida Senate introduced a bill that would entitle “judges and juries . . . to hear and consider evidence of fault relating to the cause of the initial accident when apportioning fault for injuries caused by a subsequent or secondary accident.”

Well, as reported by The Product Liability Monitor, D’Amario will now be given a neat little red flag in your next Westlaw search, because the Florida legislature has passed that bill.  The real kick in the teeth to plaintiffs?  The law applies retroactively to pending cases.

The Life and Death of R.E.M.

We here at Abnormal Use typically discuss products liability issues (or even different areas of substantive law), but we feel compelled today to stray off topic and comment upon the passing of one of the greatest bands of the last three decades:  R.E.M.  Last week, the group announced that it had “decided to call it a day as a band,” bringing to a close a 31-year career which entertained not just generations of listeners but also generations of lawyers (thereby making this somewhat appropriate for a law blog). They were pioneers of what was once known as college rock music. They released many fine albums. For years, the band’s lead singer, Michael Stipe, was both literally and figuratively, the dean of alternative rock music. The band was, as some have said, “insanely influential.”

There is no question that the band’s work in the 1980’s and early 1990’s – from Murmur, Reckoning, Life’s Rich Pageant, Document, and Automatic for the People – resonated with listeners in an unparalleled way and provided the soundtrack for many fondly remembered moments. This is the band that wrote such songs as “So. Central Rain,” “These Days,” “The One I Love,” “Fall On Me, “Sweetness Follows,” “Find The River,” and so many more songs that will be admired and listened to for many, many years to come. It may sound silly, but for those of us who truly enjoy music, particularly R.E.M.’s era of music, the group’s passing is not unlike the jarring news of the death of a once close friend (albeit one with whom we lost contact many years ago).  We always figured they would be there, out there somewhere making music, whether or not that music was as good as it once was when we first encountered them so long ago. But now the band belongs to the ages.

In its later years, the band lost much of its edge. Certainly, like so many other groups, the band’s initial drive and ambition was tempered by mega success, and in response, it petered out a bit.  Later albums like Up, Reveal, and even this year’s Collapse Into Now, were remarkable only in that they were released by a band once so adored by so many, not because of their relative individual merits as works of art. But, as we know, acts like R.E.M., U2, The Rolling Stones, and even Bob Dylan, still live and thrive based on the good will engendered by their earlier, far more brilliant work.  Thus, even those later mediocre albums received a benefit of the doubt that a different band releasing a nearly identical album would never receive. Perhaps that kept the band in business longer than was prudent, but there was always the hope, among their fans (and presumably within the band itself), that it would recapture the creative energy it once wielded.

However, it’s interesting to speculate what would have happened if R.E.M. had broken up a decade and a half ago, perhaps after the release of 1992’s Automatic for the People (contended by some, including this writer, to be the band’s finest moment). Would Stipe still have mentored Kurt Cobain, Courtney Love, and Radiohead’s Thom Yorke? Perhaps Stipe might have begun a solo career, reinvigorating his path in a way not unlike Morrissey did after the destruction of The Smiths in the late 1980’s? Maybe Peter Buck would have still found work, if not fame, in obscure musical projects like Tuatara? Surely, Mike Mills, who composed many of R.E.M.’s finest songs, would have discovered suitable musical opportunities.  Whatever the case, had R.E.M. left music on a high note, the band would be remembered like those acts that released several excellent albums and left the stage before their members’ creative impulses soured or atrophied as a result of age.

A personal aside: I can still remember the first time I heard “Drive”, the lead signal off of Automatic for the People.  I was fortunate enough to be able to see R.E.M. play in concert on two occasions.  The first was in Austin, Texas in September of 1995, with Radiohead and Natalie Merchant serving as the opening acts.  (Check out the set list for that show here). At that time, R.E.M. was touring in support of 1995’s Monster, an overdone electrified album which, though inferior to the band’s previous work, still offered some catchy and radio friendly singles (a feat the band was not really able to accomplish again in subsequent years).  I saw them again in 1999 in San Antonio, Texas with Mercury Rev and Wilco as openers.  (That set list is here). Then, the band was beginning its slow decline, and it appeared that its members were more interested in entertaining themselves than the crowd that had assembled that day to see them. But it was still fun. Another fun story: In May of 2010, Steve Wynn, who once fronted the fabled 1980’s college rock band The Dream Syndicate, played two back to back shows at a tiny rock club in Atlanta, and at each, he played a full Dream Syndicate album. While at one of those shows, I turned to my right and saw I was standing right next to Mike Mills, who was clearly enjoying Wynn’s performance.

In the end, the creative slumps of the band’s later years don’’t matter.  The band did something that so few musical acts are able to do: For a period of time, they released a series of fantastic albums which listeners still enjoy and respect decades later. They captured, and in many ways, personified, a moment in music that influenced many to come.  A fine epitaph, that.

(For another lawyer’s take on the demise of the band, see this piece by Pennsylvania’s Jay Hornack a/k/a Panic Street Lawyer).

Friday Links

The comic book cover above, that of Action Comics #301, published way back in 1963, presents a bit of a dilemma for Superman, the apparent criminal defendant. “Superman, the people will prove that you killed reporter Clark Kent because he discovered  your secret identity,” asserts the district attorney.  Meanwhile, Superman thinks to himself, “How can I prove I’m innocent without revealing that I am Clark Kent?”  Well, we think one thing he might have done would have been to simply walk into the courtroom as Clark Kent, rather than Superman, thereby obviating the need for a trial. Our favorite part: The exhibit tag on the suit says “Clark Kent’s Clothes” instead of Exhibit A.

Filthy files may be destroyed, says the South Carolina Supreme Court. (Hat tip: Legal Profession Blog).

Today, in Columbia, South Carolina, the South Carolina Bar is putting on its 2011 Solo & Small Firm CLE and Annual Meeting, subtitled “Exploring the Business Side of Law Firms.” There is a heavy emphasis on legal technology at this conference, which is why we’ll be there to check it out. (We are looking forward to the speeches on DropBox and Cloud Computing, and there’s even a presentation on “Using the iPad in Litigation!”) If you find yourself there, seek us out! We’ll also be live tweeting the event from our official Twitter account, which you can find at @GWBLawfirm.

The Risk Management Monitors lists “The Ten Most Dangerous Jobs in America.”

Five years ago this week, the Legal Profession Blog was born. Mike Frisch of that site reflects on the occasion here. We here at Abnormal Use are big fans of that site, and we wish them a happy birthday.

Forum Non Conveniens: Latin Phrase Gets Fourth Circuit Out of a Jam

A law professor (who shall remain anonymous) once said that the use of Latin phrases in an opinion is an indicator that the judge has no idea what he/she is doing.  Hyperbolic?  Yes.  Plausible?  Of course.  We all know nothing screams “astuteness” like a foreign language – especially a dead one.  Accordingly, Latin is the perfect culprit for disguising unsound legal reasoning and maintaining judicial integrity.  On a similar note, Latin phrases are also the ideal substitute for the greatest legal argument ever made – “that just doesn’t sound right.”  What to do when the facts of a case leave but one logical conclusion and the common and statutory law do not pave a clear path to get there?  Toss in some Latin.  Works every time.  Recently, in Tang v. Synutra International, No. 10-1487 (4th Cir. Sept. 6, 2011), the Fourth Circuit put our theory to the test when a class of Chinese citizens attempted to bring certain product liability claims against a Chinese manufacturer in Maryland.  The Court’s answer?  Forum non conveniens. That’s Latin, right?

In Tang, the plaintiff class consisted of a group of Chinese residents who had been injured in China by melamine-contaminated infant formula.  The formula was manufactured and distributed in China by Sheng Yuan Nutritional Food Company, a Chinese subsidiary of Syuntra International, Inc.  Because Syuntra has its principal place of business in Maryland, the plaintiffs elected to file suit in federal district court in Maryland, alleging various causes of action pertaining to the manufacturing, distributing, and marketing of the formula.  The district court granted Synutra’s motion to dismiss the complaint on the basis of forum non conveniens. The Fourth Circuit agreed, holding that China was an available, adequate forum for the plaintiffs’ claims.

Forum non conveniens (Latin for “forum not agreeing”) is a well-established common law concept.  Accordingly, no archaic language creativity was needed (but certainly the first judge to coin the phrase must have first thought, “that just doesn’t sound right”).  Like the many cases that came before it, this case could lead to but one conclusion.

The plaintiffs’ argued that the American venue was the proper venue to adequately protect their interests.   There was some evidence in the record showing that Chinese courts had thwarted contaminated formula lawsuits.  Voluntary lawyers had been warned that their involvement in the litigation could lead to social unrest.  Affidavits from two Chinese lawyers indicated that Chinese courts unreasonably delayed the litigation even after the Supreme People’s Court announced its readiness to hear the claims.  If true, the plaintiffs would obviously face difficulty in pursuing their claims through the Chinese legal system.

Despite their apparent struggles, allowing Chinese residents who were injured in China by a product manufactured and distributed in China to bring their claims in the United States just doesn’t sound right.  People deserve an avenue for redress, but there must be some legal concept – or Latin phrase – to prevent our courts from having to adopt an open door policy.  The Fourth Circuit held that these plaintiffs had an adequate forum – a fund established by the Chinese government to compensate those affected by the contaminated formula.  While the American court system may provide the potential for greater relief, it seems unreasonable to allow the plaintiffs to forum shop under the facts of this case.

The Fourth Circuit used Tang as a platform to affirm the reach of the forum non conveniens doctrine to non-judicial remedies.  However, we wish the Court could just informally state what the rest of use are thinking – “that just doesn’t sound right.”  Certainly there must be a Latin phrase for that.

For a thorough summary of the Fourth Circuit’s opinion, please read this piece from our friends at the Product Liability Monitor.

Georgia federal court finds preemption of breach of warranty claim

Plaintiff’s counsel and defense counsel are equally guilty of the well-known and respected legal strategy called “throw everything against the wall and see if something sticks” strategy.  It starts with the complaint when Plaintiff’s counsel pleads every cause of action under the sun.  It is perpetuated when defense counsel pleads every affirmative defense in the known universe (including our favorite, laches).  Both are hoping, sometimes beyond hope, that when the issues are finally clarified, and both sides begin to determine what the case is actually about, they will have pled correctly.

Sometimes, though, it doesn’t work out that way.  In Haynes v. Cyberonics, Inc., No. 1:09-CV-2700-JEC, 2011 WL 3903238 (N.D. Ga. Sept. 6, 2011), Plaintiff Cloys Haynes sued the manufacturer of a device called a Vagal Nerve Stimulator, which had been implanted in his neck to control epileptic seizures.  He claimed that a few months after the device was implanted, he suffered various symptoms, including feelings of electric shock and tingling.  He also alleged that he suffered permanent left side neurological damage and chronic pain in parts of his body, including his throat and ear.  Ultimately, Plaintiff underwent surgery to remove the original device and replace it with a new, identical device. Problem for Plaintiff:  During the surgery to replace the device, a diagnostic test was performed on the original nerve stimulator. It was found to be normal.  No other testing was done.

Plaintiff’s original causes of action included strict liability, negligence, breach of warranty, punitive damages, and loss of consortium. Plaintiff later amended the Complaint to add a negligent manufacturing defect claim. He also sought attorneys fees for his troubles.

Just prior to the expiration of the discovery deadline, Plaintiff moved to have the case dismissed without prejudice.  Not surprisingly, the defendant opposed the motion and filed a motion for summary judgment, as well.  It also subsequently filed a motion to allow for supplemental briefing based on new preemption law in the 11th Circuit.  That motion was granted by the Court.

The Defendant based its summary judgment motion on the doctrine of preemption and asserted that all of Plaintiff’s causes of action failed in the face of this super-defense.  We’ve blogged about this defense before.  It’s awesome.  As the Court in this case noted, “[u]nder the doctrine of federal preemption, state laws that conflict with federal law are ‘without effect.'”  The Court also provided a very nice articulation of the test used in such cases:

In Riegel v. Medtronic, Inc., the Supreme Court determined that this express preemption clause will bar common law claims arising from injuries caused by FDA-approved medical devices in many circumstances. Tracking the language of the statute, Riegel set forth a two-pronged test for deciding whether state claims are preempted. First the district court must determine whether the federal Government has established requirements applicable to the device. If so, the court must then determine whether the plaintiff’s common-law claims are based upon state law requirements (1) that are “different from, or in addition to” the federal ones and (2) “that relate to safety and effectiveness.”
Plaintiff did not dispute that the nerve stimulator, as a Class III medical device, was subject to federal requirements for purposes of a preemption analysis.  It also conceded that, as a result, his design claim was preempted.  He didn’t concede, however, that preemption barred his other causes of action.
As to Plaintiff’s cause of action for manufacturing defect, a strict liability claim, the Court held that the claim was preempted:
Clearly, the FDA regulates the manufacturing practices of Class III medical devices.  Further, a manufacturer could comply with all FDA regulations, but nevertheless produce a product containing an unintended flaw or abnormal condition. That being so, by holding a manufacturer liable under such circumstances, Georgia law would be in the position of imposing requirements “in addition to” federal law.  Accordingly, [as] defendant argues, plaintiff’s strict liability manufacturing defect claim is therefore preempted.
Even if the claim were not preempted, the Court reasoned, Plaintiff had failed to provide any proof that the device was negligently manufactured.  He also failed to provide evidence that the symptoms and/or injuries he suffered were caused by the device.  (There’s that pesky lack of expert testimony thing again).
Plaintiff also argued that the device contained an inadequate warning, which is a design defect under Georgia law.  An inadequate warning may amount to a design defect and permit the imposition of strict liability.  However, because the FDA regulates content and appearance of prescription medical device labels, Georgia law would be imposing “requirements” that were “in addition to” federal regulations. As such, this claim was also preempted.
Plaintiff almost succeeded in surviving summary judgment on his negligent manufacturing defect claim.  As the Court noted, a “negligent manufacturing claim would not be preempted to the extent it relied on an allegation that the particular device had not been manufactured in accordance with the FDA’s pre-market approval process.”  However, although Plaintiff survived preemption on this claim, he failed to survive the summary judgment motion because he had failed to offer any evidence of any manufacturing defect claim. Oh, well.
The most interesting analysis in this case, however, centered on the issue of preemption in the context of a breach of warranty claim.  The Court stated, “Riegel did not address a breach of express warranty claim.  Nor has the Eleventh Circuit decided whether a breach of express warranty claim can be preempted by the MDA. Other federal courts remain divided over the issue.”
The Court held that preemption does apply in the context of a breach of warranty claim.  Its reasoning follows:
In any event, the express representation claims in this case would interfere with the FDA’s pre-market approval regime. Plaintiffs claim that defendant expressly warranted the stimulator to be “safe, and generally fit for use as an implanted stimulator,” when in fact the device was not safe.  In order to prove that defendant breached this warranty, plaintiff would need to show that the stimulator was not safe: a finding that would directly conflict with the FDA’s pr-emarket approval of the device as reasonably safe and effective.  Moreover, if these warranties were made in materials approved by the FDA in the pre-market approval process, then allowing a claim to proceed under Georgia law would subject defendant to state duties above and beyond the federal requirements.  Such a claim would fall within [the] preemption clause prohibiting state requirements that are in addition to, or different from, federal requirements.
Accordingly, the Court concluded that Plaintiff’s express warranty claim was also preempted.

Abnormal Interviews: Mark Waid, Writer of Marvel Comics’ “Daredevil,” The Lawyer Superhero

As we’ve previously noted on this site, Daredevil is a Marvel Comics superhero whose alter ego, Matt Murdock, happens to be a practicing lawyer. Murdock is  blind; his heightened other senses serve him well as a costumed vigilante.  The point: He’s a lawyer, thus, we can write about the character on our law blog! (If it’s been a while since you read comics, you might recall the 2003 film, Daredevil, which starred Ben Affleck in the title role.).

In his private life, Murdock is a partner at the small New York City firm of Murdock & Nelson, which handles, among other things, personal injury and civil rights cases.  Murdock’s partner, Foggy Nelson, is a brilliant attorney  who helps cover for Murdock when he’s out fighting crime.  Just a few months ago, Marvel Comics rebooted the Daredevil comics series and brought Mark Waid on as the writer of the new series. Waid is known for such popular works as Kingdom Come and Superman: Birthright. As Waid takes responsibility for the character, Daredevil finds himself a persona non grata in the eyes of other superheroes. In fact, because of some recent exploits, Daredevil’s secret identity has been compromised, and Murdock is now attempting to rebuild his life and law practice. Waid was kind enough to agree to an interview regarding the challenges of writing a lawyer superhero character. Waid’s latest issue, Daredevil #4, hits the stands tomorrow, and the first three issues can be found at any local comic shop.  Our interview with him (which includes a few minor – though clearly marked – spoilers about tomorrow’s Daredevil #4) is as follows:

JIM DEDMAN: Matt Murdock has two full time jobs:  attorney in private practice and costumed super hero.  You’ve described that as a sort of a “paradox of a vigilante by night, lawyer by day.”  How does he manage doing both those tough jobs?

MARK WAID: Like all good comic book superheroes, he manages to squeeze an awful lot in a 24 hour day.  When I go to the bank and the post office, I’m done, and I have to lie down.  But these guys, in Matt’s case, one of the things that’s enormously helpful to him is that he relies very, very heavily on his partner and best friend, Foggy Nelson. Their dynamic is such that Matt is brilliant in the courtroom.  He is a showman, he is charming, he is well spoken. What Foggy brings to the table is . . .  an eidetic memory for court history and for case history. So he’s the one who was always in law school, nose in the books, 23 hours a day, while Matt was out chasing skirts and stuff.  So, if you will, Matt’s the face, and Foggy’s the brain, and sorry to say, the brains have the harder job.

JD: Nelson & Murdock is a small New York City firm. You’ve mentioned that you’ll be introducing some interns and assistants at the firm in the future, which is foreshadowed at the end of issue three.  How do you go about depicting the day-to-day operations of a law firm in the comic book medium?

MW: With all due respect to the fine lawyers who have represented me in the past and can sue me out of existence today, basic office law work is not the most terribly visual thing in the world for comic books.  So, we don’t spend a whole lot of time in the Nelson & Murdock offices and what time we do there is – to the chagrin of many of my lawyer friends – is sort of the TV and comic version of what a law office looks like, which is not reality.  People having fun all the time.  People are having parties, blah, blah, blah.  Luckily, Marvel has a couple of really good writers who also have legal backgrounds.  Marc Guggenheim is one, and so I’m able to lean on these guys pretty heavily for background and to sort of back stop me to make sure that my rudimentary layman’s knowledge of how a law office works, at least has some grounding in reality.

JD:  We also spend some time in the courtroom.  What efforts do you make to accurately depict that process in that arena?

MW:  Same thing.  I talk to Gugenheim, I talk to a couple of my other lawyer friends.  It’s a fine line.  I mean, it’s fiction, it’s not a documentary, so every once in a while to make it visual or to sort of compress into 20 pages of comics what would, in fact, be an entire day’s worth of law proceedings, we have to cheat a little bit.

JD:  At this point, it’s public knowledge that Matt Murdock is Daredevil, at least for the most part, and the new assistant district attorney actually tells him, “Every litigator in the game is going to use your Daredevil identity against you every time you set foot in a courtroom.” You’ve said in a past interview that Murdock is doing his clients “no favors by representing them.”  Why is his identity as Daredevil such a problem in his private practice?

MW: Because every time he steps into the courtroom, a smart lawyer on the other side will invoke – especially in criminal cases, particularly criminal cases – the fact that Daredevil is an unsanctioned vigilante, and therefore, he must have some sort of antagonistic relationship with law enforcement or by nature must have some sort of antagonistic bent against authority, none of which is true, but it doesn’t matter.  . . . [W]hat I’ve been told is that, paradoxically, the courtroom itself is the only place where you don’t have to worry about slander because lawyers can say whatever they need to about each other in order to win the case, essentially.  There’s boundaries to that, but Matt is not in a position to sue an opposing attorney for slander for calling him Daredevil in court.

JD: Does Matt have a dilemma in that in his private practice he appears to be a very idealistic person who believes in due process of law, and presumably the rights of the accused, but he’s also out there at night fighting crime and presumably prompting the arrest of criminals who are going to end up in a courtroom in the future?

MW: Yeah.  That’s part of it.  The real problem for Matt gets back to the idea that a good attorney needs to be fairly invisible when it comes to the facts of the case.  The moment the attorney becomes more of the focus of the trials than the evidence or the clients, you’ve got a problem.  So then, it’s all about personality, and as we saw in issue one, it doesn’t always do the client any favors.  So Matt’s now in a position where he loves trial law.  It’s the thing he’s best at.  He’s really good at it – [but] what can he do to use that knowledge to help others?

If you come to Matt with a case that seems unwinnable, if you come to Matt with a case that nobody else will touch, if you come to Matt with a case that you cannot afford to have tried but he believes in you and he knows that you’re right because, again, he’s got the super senses, he can tell whether you’re telling the truth or not, then he’ll be your advocate.  He will work with you to be your own lawyer.

JD: . . . Is that the model that he’s going to adopt, where he is not [creating] the attorney/client relationship but instead assisting people in representing themselves pro se?

MW: That’s exactly it.  Exactly.  It’s a dangerous place for him to be, but frankly, it allows him to use his skills. He’s a very good coach, as it turns out, because again, he can read you like a book when you’re standing in front of him.  So,  he and his guys are not going to win every single case, but this serves two purposes for us.  One is that I kind of like the idea that it gets him back in a courtroom milieu without having to deal with the Daredevil identity.  The other, quite frankly, is that the problem with Daredevil, with Matt Murdock as a lawyer in comics, is that it’s not as interesting as Daredevil swinging across a rooftop, and you don’t want to spend a whole lot of time in a courtroom in comics because it kind of gets dull.  So this gives us a chance to do the courtroom material but not actually have to worry so much about having page after page after page of a guy in a business suit arguing in front of  a jury, which is deadly dull on the page.

JD:  Now, Foggy appears to be in a romantic relationship with the new assistant district attorney.  Is that going to present him any problems, romantic or ethical, in the future?

MW: I think the key word there is “appears,” so I’m afraid I will have to actually stall the question for a couple more issues.

JD: Fair enough.  As Daredevil, Matt has witnessed many crimes and foiled many villains. Now that his identity is out there, might he be subpoenaed to testify himself or even be sued by any of these villains for brutality?

MW: Yeah, absolutely.  It’s a dangerous place that Matt is in where he’s gone public . . . .  Like I described in the first issue, . . .  his identity is sort of out there, but following on Daredevil continuity from a few years ago, when he was originally exposed, he denied all charges.  He sued the newspaper that reported his identity and won the case.  He did everything he could to fight back.  Now, that’s past continuity, and that’s not my story.  I feel kind of squidgy about that, frankly, because as a reader, that bugged me that a superhero and a lawyer would deliberately mount a false case even though it was all for a greater good.  That he would sue the newspaper for telling the truth really bugged me.  But those are the cards I was dealt.  So instead of focusing on the history of that, what I take away from that is that the reality in Manhattan now is that about a third of the people remember that he was accused of being Daredevil and they think it’s probably true.  A third of them think this is crap because he’s a blind man and this is some sort of weird publicity hoax.  And the final third of them just don’t care anymore because it’s like news of Anna Nicole Smith at this point.  It’s old news.

JD: Now, there’s a police brutality civil rights lawsuit that plays a role in the first several issues. . . . [H]ow did you first come up with the idea of using that type of litigation to advance the narrative?

MW: I wanted something visual.  . . . [I]t couldn’t have been a criminal case per se.  People who are accused of crimes and are in prison, basically, they have a right to a lawyer.  You know this better than I do with the speech: “You have a right to an attorney.  If you cannot afford an attorney, one will be appointed to represent you. ” And Matt needs to be dealing with people who can’t get any sort of representation at all.  So, I needed to get away from criminal cases in that case.  But I needed something visual.  I needed something where . . . it was an open and shut case.  Matt has all the evidence, the poor guy is for real.  Matt knows that the guy is completely telling the truth when it comes to police brutality.  And it should have been a cake walk.  It should have been just a complete read through, easiest case Matt ever did, and the reason it backfired is because he wasn’t taking into account his own celebrity.  So, that’s why I wanted something visual – giving the guy a broken arm.  I needed something visceral . . . .  Readers have a very strong response to cases like police brutality and stuff.

JD: Are there other types of cases besides that you’re going to explore in the future?


MW: Yeah.  . . . [W]hat I like about setting this world up this way . . . is that all of these cases can lead to bigger things.  Not every case has to, but certainly, the cases we’ll be focusing on in the comic [are] the kind of things that are going to lead to bigger things.  For instance, in issue four, Matt takes the case of a kid who was fired without cause, apparently.  And he’s upset and he’s suing the company.  The problem is that New York is an “at will” state.  So, Matt says, “That’s why no one’s taking his case.  It’s a dog of a case.  He didn’t have a contract, he can’t win.”  And Foggy says, “Yeah, but I thought you may be interested because the kid is blind.”  And so now Matt’s intrigued – does it has something to do with disability?  . . .  And that ends up turning into a case where the kid inadvertently heard something that leads Matt in turn to a criminal conspiracy that in turn leads into something bigger as Daredevil.  So, that’s kind of the structure I see playing with.  You start with a small case.  And the more interesting ones turn into bigger cases that Daredevil needs to be involved with.

JD: I have to ask this. In the first issue, when Matt first enters the courthouse, he’s mobbed by newspaper reporters, including one law blog.  How did that reference come to be?

MW: That you would have to ask my editor, Stephen Wacker, because I believe I left that stuff fairly open, and I said, “Steve, let’s you and I figure out what these people are screaming.”  That’s also why one of the guys in the background is screaming, “Bababooey, bababooey!” because of Howard Stern.

JD:  . . . Have you had any reactions from lawyer readers?

MW: Yeah, a couple.  And luckily, everybody seems to understand that I’m doing my best.  I’m not a lawyer, but I play one in comics, and everybody sort of understands I’m trying to do my level best to keep it as accurate as I can, and at the same time, try and keep it as entertaining as I can, and sometimes, those are not always things that work in concert.  But so far, so good.

JD: Last question.  More generally, you tweeted very recently that “[n]ot all mainstream comics have to be written for the existing fan base.”  What’s your philosophy about that?

MW: My philosophy about it is that it makes me insane that most comics today, most super hero comics, are written specifically for the guys who’ve been reading them all their lives, which is a really inbred way of going about getting new readers.  When I sit down and write a first issue, whether it’s Daredevil or Fantastic Four or anything else I’ve done, but particularly with Daredevil – I bend over backwards to make sure that it’s a comic that you could hand to anyone if they’ve read a thousand comics or they’ve never read comics before – it doesn’t matter.  They understand who the character is, what he wants, and what’s in his way, and why we should care.  Those are the four litmus paper questions that need to be asked about every story.

Bad Television to Come: “Dead Lawyers”

John Stamos is piloting a new television legal drama.  Get this: According to an August piece over at Deadline Hollywood, it’s called “Dead Lawyers.” (We’re not joking.)  The premise: Recently deceased attorneys try to make amends. (Again, we’re not joking.)  Think “Ghost Whisperer” meets “L.A. Law,” but with living dead lawyers, forced to face the error of their evil, evil ways and right their past wrongs in order to “pass over,” presumably into some generic unexplained legal afterlife.  Apparently, this show was previously pitched and failed to generate interest among the networks (shocking.)[1] However, the previously pitched version was to air on the SyFy network (whose audience is not into lawyers – duh) and didn’t star John Stamos (who everyone loves – duh.)  This time around, Sony TV is backing the show and they’ve got Stamos.  Hello?  Who doesn’t love Uncle Jessie?  And who doesn’t love lawyers?  Especially lawyers having to pay the ultimate price – forced pro bono work with an existential twist?

“Dead Lawyers” may be a new concept, but  legal shows are old hat.  Stamos isn’t the first in a long list of stars vying for television legal roles.  Think James Spader in “Boston Legal.” Think WILLIAM SHATNER in “Boston Legal.”  Think Zack Morris in the new hit (objection, speculative) show “Franklin & Bash.”  “Ally McBeal.”  “Law and Order.”  And the list goes on.

There seem to be a whole bunch of legal dramas these days.  And why not?

1.  It’s really HARD to come up with a new concept these days.  It’s much easier to recycle an old one.  I know.  I know.  This time we’ll make the lawyers dead.


2.  Think of the glamour of the legal world.  You live it.  You know it.  Oh, so glamorous.  We here at Abnormal Use, have always said that document review, when done properly, can be quite romantic.

One question: Have you ever seen a lawyer in any television legal drama actually draft anything?  Anything at all?  And I don’t mean a quick screen shot of them sitting at their desk before learning about some new scandal their husband has gotten wrapped up in (a la “The Good Wife.”)  No way.  TV lawyers don’t draft anything.  So, how do they make their billable goals?

These TV lawyers stomp around court rooms, pound their fists on desks, and, my personal favorite, make arguments during witness testimony.  Judges applaud, ladies swoon, and the episode ends with a witty remark by a dashing young lawyer (or fake lawyer per “Suits“) just like me.  I mean, John Stamos.

Who could ask for anything more?

[1] SURVEY.  What is more shocking?  (a) That DL failed on it’s first attempt;  (b) That they are trying again; or (c) That Stamos agreed to take part.  (Stamos haters need not participate in this survey.)