Friday Links

Depicted above is the cover of Batman: Gotham City Police Department #2, published not so long ago in the halcyon days of 1996.  The cover is dominated by Harvey Bullock, a controversial Gotham City detective.  We know that citizens maintain certain rights when confronted by a police officer. There are many, many criminal procedure law blogs out there that explain these rights to citizens and other lawyers alike. But based on Detective Bullock’s Wikipedia entry, we’re going to stay clear of him and not invoke any legalisms in his presence. We’re too scared. Unless Batman’s around, we guess. But he’s pretty scary, too, no?

According to news reports, there may not be any hot coffee lawsuits against McDonald’s in Mumbai for a while. That’s because the franchise has run out of beans!

This week, we discussed the viral firestorm that has befallen Progressive Insurance Company after one man claimed it “defended his sister’s killer in court” over a UIM claim. (We still maintain that the whole ordeal is premised on a fundamental misunderstanding of the role of UIM insurance and claims over same.). Since that time, news about the underlying trial has come to light. As we expected, at issue was the alleged contributory negligence of the man’s sister. Despite testimony from the police department’s accident reconstructionist and other witnesses that the sister ran a red light, the jury found her not to be negligent. The estate was awarded $760k in damages, but there is still no news on the limits of Progressive’s UIM policy. We will keep you posted as more information surfaces, as it appears that everyone on the Internet is still talking about this one.

Did you know that you can follow our fearless leader, Mills Gallivan, on Twitter? To do so, simply click here.

Space Torts!

It’s been a big month for mankind’s space exploration. On August 5, NASA’s “Curiosity” rover executed a technically flawless controlled crash-landing onto the surface of Mars. Hopefully, once and for all, we’ll establish that our red-tinged neighbor is both rocky and barren. Haha! Just kidding, NASA. This is a totally cool project that is sure to reap tremendous scientific dividends. Great work; keep it up.

This piqued my interest about space torts, though. Who is liable in the event that a space vehicle—or more realistically, a piece of a space vehicle—comes crashing back to earth, causing injury or damage to the people down below? Somewhat to my surprise, this unusual legal question appears to have an answer. Granted, this circumstance doesn’t happen often. The rigors of atmospheric re-entry usually solve the issues presented by falling space debris long before they can become a problem. However, from time to time, what goes up makes it all the way back down. For example, in 1978, the Soviet-launched Cosmos 954 satellite crashed in Canada. In 1979, the United States’ Skylab crashed in Western Australia. And in 2011, debris from the United States’ UARS satellite crashed in Canada. So, there’s some concern that at some point, some space vehicle that’s outlived its useful life will go out in a true-life blaze of glory, and it may very well cause personal injury or property damage that should be compensated.

So who do we sue and how do we do it? This is largely determined by identifying, first, who launched the vehicle, and second, where the injury was sustained. In many cases, the country that launched a space vehicle is not going to be the country where the object comes crashing down. In these cases, the procedure for determining liability and obtaining compensation is addressed by the 1972 Space Liability Convention. The SLC provides that claims for personal injury or damage must be presented and resolved through international diplomatic channels; however, this does not necessarily displace any ordinary judicial process that may otherwise be available.

But what happens if a United States vehicle comes crashing back to Earth on United States soil? Presumably, in these cases, a person’s claim for injuries or damages could be pursued through the Federal Tort Claims Act, 28 U.S.C. § 2674. The specific procedure for bringing claims against the Government is laid out at 28 U.S.C. § 1346(b). Furthermore, the statute of limitations for claims under the FTCA is two years, 28 U.S.C. § 2401(b), and the only damages that can be awarded are those that are available under the law of the state in which the case is tried. In other words, if the state has an applicable cap on governmental liability, the feds get the benefit of that cap.

It’s actually somewhat quaint that we would be talking about liability for “space torts” in terms of the country that launched the vehicle. Most countries that engage in space exploration are able to do so only because they contract with private industry. To that extent, the economy of space exploration is sophisticated, globalized, and comprised of relatively few actors within private industry that have that resources and expertise available to support a country’s efforts to go into space. Therefore, in the event that a space vehicle comes crashing down, it may be wise to consider (from a litigation perspective) who the private industrial actors were who built and operated the vehicle, because they may be the same actors regardless of whether the vehicle is American, Russian, European, or Chinese.

In any event, there is almost a zero-percent chance that you will be impacted (haha…) by falling space junk. And if you are, then you probably won’t care about any of this discussion. Because, frankly, fate had cast your lot and it was time to go.

UIM Coverage Issue Goes Viral; Great Misunderstandings Ensue

For whatever reason, insurance companies may not have the best reputations. So, it comes as no one surprise that a recent Tumblr post entitled, “My Sister Paid Progressive Insurance to Defend Her Killer in Court,” has gone viral and garnered much attention across the Internet. The piece, penned by comedian Matt Fisher, documents his family’s struggle to recover underinsured motorist (UIM) benefits under a Progressive auto policy. Fisher’s sister, Katie, was  killed  in a motor vehicle accident after another driver reportedly ran a red light.    The liability carrier for the other motorist tendered its policy limits shortly after the accident.  Thereafter, the family turned to Progressive for additional UIM benefits.  For reasons not specifically documented in his post, Progressive denied coverage.  In order to pursue those benefits, the family filed suit against the other driver.  Progressive, as the UIM carrier, appeared in the matter and defended the case.  Although the jury ultimately returned a verdict for the Fishers in the matter following a trial last week, Matt Fisher was none too pleased with Progressive’s conduct, leading him to write a series of posts on the issue.

First off, it should be noted that there is not much information in the public record about the specifics of this case, other than Fisher’s original post and a brief reply from Progressive.  Accordingly, it’s challenging to opine about the specifics of this case without access to trial transcripts, court orders, policy documents, or other information that might usually be available in a reported case. But, as we see it, much of the confusion here lies in the very nature of UIM coverage.

Indeed, following Fisher’s post, a firestorm was unleashed against Progressive.  Celebs such as Wil Wheaton and Patton Oswalt took to Twitter, campaigning against the company.  The story has also been well-documented on other sites, including Thought Catalog and Gawker.  Despite this fanfare, however, Progressive appears to be getting a bad rap, primarily because of a great misunderstanding of the sometimes counterintuitive nature of UIM coverage and benefits.

For starters, we do not know exactly why Progressive denied coverage in the first place.  As noted above, we do not have access to many of the relevant documents in this case, including any letters explaining the denial of coverage. But, we imagine it may have had something to do with perceived liability.  In his own post, Fisher, who attended the trial, admits that there may have been some issue with his sister’s comparative fault:

Now, I don’t discount the possibility that Katie was at fault in the accident, but it never really looked that way. The only witness who gave a statement on the day said that Katie had the light, etc. The totality of the evidence left some room for argument, but that will be the case any time there’s a catastrophic car accident that doesn’t happen underneath an array of video cameras.

Further, as Ted Frank of the Point of Law blog notes:

Maryland is one of the few remaining contributory negligence states: if Katie was 1% at fault in the accident, there is no liability to the other driver or Progressive.

In other words, under Maryland law, if Katie played any role – no matter how slight – in contributing to the accident, Maryland state law would not permit her to recover.  Thus, we must consider “the totality of the evidence” and Maryland’s adherence to the contributory negligence doctrine when analyzing Progressive’s initial coverage decision and subsequent actions in defending the case (as was its right to do so).

Second, a simple explanation of the UIM concept may help to clarify the misguided notion that “Progressive defended Katie’s killer.”  In reply to a Progressive statement that  it did not serve as an attorney for the defendant, Fisher outlined the conduct of “Progressive’s legal team” at trial in support of his argument.  In this instance, both Fisher and Progressive are correct – to a degree.  Progressive did employ lawyers – not in-house – to represent its interests in the matter.  While Progressive essentially stepped into the shoes of the defendant at trial, however, it did not serve as his attorney.  The lawyers represented Progressive.  Even though the defendant may have sat in the chair right next to Progressive’s lawyer, there was not an attorney-client relationship.

To the lay person, it may be a strange dynamic when one’s own insurance company technically “defends” the underinsured motorist.  However, here, Progressive had an ostensibly legitimate coverage position, and this was the forum available to the insured in which to litigate it. While we do not know all of the facts in this matter, nor are we aware of  Progressive’s internal decision-making process, UIM cases are very common and sometimes do culminate in a trial where this very dynamic comes into play.

We recognize Fisher’s frustration.  Sitting through a civil trial and fighting with an insurer is the last thing anyone wants to do after the loss of a loved one.  Just as every accident does not necessitate the insurer paying under its policy, every accident with an uninsured/underinsured policy does not necessarily entitle the insured to UM/UIM benefits.  Insurers, including Progressive, should investigate every accident and accordingly make coverage determinations based on liability and damages.

Judge dismisses Suit against Cooley Law School

A few months ago, we ran a series about the ongoing debate about higher education, including legal education – ts merits, cost-benefit analysis, and interviews with those in the field.  In those posts, we remarked that several lawsuits had sprung up around the country against law schools for misrepresenting data about their job placement numbers and salaries. One such suit was filed by a dozen graduates of the Thomas M. Cooley Law School, who alleged that they would not have spent the money to attend the school if they had known the truth about job prospects coming out of the school.  The plaintiffs sought $250 million in damages.

On July 20, 2012, the Michigan federal court where the case was pending dismissed it after the law school filed a 12(b)(6) motion.  A full copy of the Court’s decision can be found here [PDF].  As Judge Gordon J. Quist, the author of the opinion, notes, this dismissal follows the same result in a nearly-identical suit against the New York Law School.  A copy of that decision can be found here [PDF], and our friends at Above the Law make some great points about that decision in this post.

So why are these lawsuits failing?  Well, according to these two decisions,  the schools did not make false representations.  As the Michigan court quoted, “[a] plaintiff’s subjective misunderstanding of information that is not objectively false or misleading cannot mean that a defendant has committed the tort of fraudulent misrepresentation.”  Ouch.  Judge Quist apparently does not think much of the prospective students’ reasoning abilities.

Judge Schweitzer, the author of the case out of New York, reached the same conclusion, but for an opposite reason.  He called applicants to law schools “a sophisticated subset of educational consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post college options.”  It appears that Judge Schweitzer believes these students to be very capable of weeding through the data, but too lazy to do so.  Again, not the best depiction of prospective law students.

And yet all is not lost.  The Wall Street Journal’s Law Blog updated its original post on the issue with a quote from Jesse Strauss, an attorney for the plaintiffs in the Cooley Law School case.  Even though Mr. Strauss seems ambivalent about appealing the decision to dismiss the case, he claims a small victory:   “It’s important to know what this litigation has helped to accomplish. Students applying to law school now have more and better information than ever before.”

True, the ABA has changed some of its reporting requirements to add some transparency, and even Cooley is reporting statistics differently.

The crucial question, however, remains:  if the value of higher education (and legal eduction) is potentially lower than expected or reported, can schools continue to charge more and more tuition?  And will the microscope that has been placed squarely on higher education result in lower enrollment down the line?  We’ll have to wait for the statistics, I guess.

Eighth Circuit Engages Drug Manufacturer in Semantic Exercise

I know you lawyers can, with ease, twist words and meanings as you please.

John Gay

We here at Abnormal Use imagine the 18th Century wordsmith uttered these words in a derogatory tone, but we can still appreciate his sentiment.  After all, we do pride ourselves in our “interpretations” of laws, contracts, and transcripts.  But, we don’t like to call it “twisting.”  Rather, we are enaging in a “semantic exercise.”

Recently, in Schilf v. Eli Lilly & Co., No. 11-2082, 2012 WL 3139233 (8th. Cir. Aug. 3, 2012), the Eighth Circuit put on a fine display of its own expertise in the linguistical arts.

In that case, the Schilfs filed suit against Eli Lilly and Quintiles Transnational, alleging that Lilly’s failure to warn of a link between an anti-depressant and suicide caused the death of their teenage son.  The 16-year old boy visited his family doctor in November 2004 to discuss his depression.  The doctor gave the boy samples of the antidepressant, Cymbalta.  The medication had been removed from the packaging and, thus, lacked any warnings.  When dispensing the samples, the doctor informed the boy that there may be an increased “association” with anti-depressants and suicidal ideations, but “no completed suicides” occurred during the clinic trials.  The boy began taking the drug and committed suicide a few weeks later.  Thereafter, Lilly revised the literate for Cymbalta to include an FDA-approved black box warning.

The district court granted Lilly’s motion for summary judgment, holding (1) that a warning would not have informed the doctor of anything he did not already know and (2) that the doctor would have prescribed the drug even if he knew of the actual risks.  The Eight Circuit disagreed with both points.

Now, here comes the Olympic-esque semantic exercise.  As to the first point, the Eighth Circuit found that a warning could have pointed the doctor to more knowledge of the drug.  According the Court, the doctor was not aware of a “causal link” between Cymbalta and suicide, but, rather, an “association.”  In support, the Eighth Circuit pointed to the doctor’s deposition testimony, in which he stated that was aware of an FDA study finding such an association, but believed the FDA wasn’t “saying the risk was there.”  Under South Dakota law, warnings of side-effect associations are typically not warnings of causal connections.

Contrary to the doctor’s belief, the FDA press release did, in fact, find a causal connection.  The district court found that the doctor “read” this release and, thus, knew of the risks.  The Eighth Circuit pointed out, however, that the doctor only testified that he was “aware” of its existence. Clearly, a distinction.

On the second point, the district court based its finding on some testimony that the doctor still believed his prescription decision was appropriate.  Not so fast!  Being such fine stewards of the English language, the Eighth Circuit examined the testimony a little more closely.  When asked if there was anything he would differently, the doctor actually answered, “Not at the time.  I did – I did exactly what I would have done.”  “Not at the time” being the operative phase.  If he didn’t know of the suicide related information, he clearly wouldn’t have had reason to alter his decision.

If we were judges, we would have to give the Eighth Circuit high technical marks for its linguistic efforts.  However, instead of lecturing the district court on its interpretation of a deposition transcript, we would still would appreciate some more guidance on that whole failure to warn issue.

Friday Links

“Treason punishable by Gaalak,” proclaims the cover of Coneheads #4, published not so long ago in 1994 in conjunction with the previous year’s film of the same name. Treason, of course, is a crime, and our own U.S. Constitution establishes an evidentiary standard for treason prosecutions. We wonder if the planet Remulak similarly requires the testimony of two witnesses to convict a treason defendant. Perhaps, in this issue, the careful reader may discover the answer to that question, But then again, perhaps not, as how many readers of 18 year old Coneheads comics are that careful?

The most recent issue of the Greenville County Bar Association’s newsletter contains a reprint of our editor Jim Dedman’s recent post on the benefits of local bar membership. Check out page 7 of the PDF!

GWB lawyers Childs Cantey Thrasher and John T. Lay recently published an article titled “Potential Liability for Attorneys Engaging Co-counsel and Referrals” in the most recent addition of the International Association of Defense Counsel (IADC) newsletter.  The article discusses professional liability claims against attorneys using outside counsel and initiatives to avoid these claims.  Click here to read the full article in PDF.

Speaking of firm news, Stuart Mauney, a GWB lawyer and a frequent guest contributor here, has been re-elected to serve another two year term representing the 13th Judicial Circuit in the South Carolina Bar House of Delegates. Oh, and if you want to follow Stuart on Twitter, you can access his account here.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Defective Design and the Costa Concordia

Carnival Corporation, and its subsidiary, Costa Cruises, face an onslaught of litigation relating to the January 2012 accident in which a Costa Concordia Cruse Ship ran aground and capsized.  Shocking, right?   The most recent lawsuit filed in Florida state court alleges, among other things, a products liability claim alleging the ship’s hull and power systems were defectively designed.

I’ve always looked at those mammoth cruise ships that resemble high-rise condos stuck on a barge and thought they were an accident waiting to happen.  But, then again, I know nothing about ships.

Based on a press release from the Plaintiffs’ attorneys, it appears that they will float (pun intended) the theory that the Concordia depended on stabilizers to keep it from rolling over in an emergency situation, but those stabilizers were of no help when the ship lost power.   Ergo: defective design.  The release states that Carnival was aware of problems when in February 2010 the hull of Carnival’s Costa Europa was punctured against a dock which created a small hole 6 foot that caused to ship flood and list.  It further states that in November 2010,  the Carnival Splendors ship was stranded off the coast of Mexico due to a catastrophic failure of a generator in one of the engine rooms as well as the failure of a backup generator.

The blogosphere is already analyzing the liability claims in this matter. Again, I’m no seaman, but a purported naval architect and the author of The Old Salt blog finds such a theory is way off base.   He notes that, in spite of their name, stabilizers on cruise ships have almost nothing to do with the stability of the ship.  He believes that ultimately the design did not cause the Concordia to capsize.  Apparently, “[a]ny ship suspended on rocky ledges at the bow and stern with the midships no longer supported by the buoyancy of the water, will roll one way or another.”  Who would have thought that hitting a huge rock, as opposed to a defective design, could have been the cause of the collision?

A Very Brief Primer on the FDASIA

On July 9, the Food and Drug Administration Safety and Innovation Act (FDASIA) was signed into law by President Obama.  Thanks to the FDA Law Blog for the correct pronunciation of the acronym–“fuh-day-zha.”  This law focuses on several goals.

Under FDASIA, the FDA can collect “user fees” in order “to fund reviews of innovator drugs, medical devices, generic drugs and biosimilar biologics. It also reauthorizes two programs that encourage pediatric drug development.”  Other provisions of the FDASIA aim to improve pharmaceutical supply chains, change approval and regulation processes, and provide incentives for the development of drugs to treat rare diseases.

Part of the effort to combat drug shortages includes provisions requiring manufacturers to notify the government of any problems or issues that may lead to shortages down the line; in the past, such reports were completely voluntary by the manufacturer.  Manufacturers who fail to report under the law are subject to sanctions.  More about the FDASIA’s provisions with regard to drug shortages can be found here.

Other sections of the law incentivize manufacturers to research and develop products for antibiotic-resistant infections, expedite the approval process for certain products, and regulate “medical gases.”

If you’re up for some light reading, the FDA Law Blog provides a link to a 75-page “summary” of all 11 titles of the law by the FDA powerhouse firm Hyman, Phelps & McNamara, which can also be found here.  Or, if you think that a summary just isn’t enough to satisfy your curiosity, you can read the law itself here.

Napalm in your backyard?

Napalm is a gel-like incendiary agent that has been used in warfare weapons for decades.  What makes napalm different from any other firebomb type incendiary agent such as gasoline?   The gel clings to what ever it touches, creating a large burning area around the target, thereby decreasing the need for accuracy.  Doesn’t this sound like a perfectly safe type of fuel to use in adding ambience to your backyard?  Well, it wasn’t napalm, but an Alabama man has sued, alleging he suffered severe burns when his girlfriend poured gel fuel into a fire pot which ignited and hit his neck, chest, and face.

In his lawsuit, the plaintiff claims the fuel gel and fuel pot were defective, unreasonably dangerous, and carried “an extremely high risk of combustion” with potential for serious injury.  According to the complaint, in May of 2011, the plaintiff was using a fire pot “as instructed” along with several family members and his girlfriend.  When his girlfriend saw the flame had been extinguished, she added more fuel gel, which caused a “flash fire explosion” that “bathed” the plaintiff with the fiery substance.  His family attempted to douse the flames with water, but the plaintiff still suffered severe burns and had to be airlifted to the University of Alabama Birmingham burn center.

In September of 2011, the U.S. Consumer Product Safety Commission announced a voluntary recall of gel fuels by several manufacturers, including Bird Brain, Inc., which was named in this lawsuit.  The real problem with the gel fuels is not that it can combust when poured onto a lit flame.  That could happen with any incendiary agent.  Instead, the problem lies in the fact that the flame can be difficult to see and vapors from inside the gel container can be ignited by the flame. This can, in turn, cause an explosion, and the effects are compounded by the fact that the burning gel sticks to the skin and can be difficult to extinguish with water.

Frankly, this suit may not bode well for the defendants.  Then again, it’s certainly early in the game, and we’ve only got one side of the story.  If this one goes to trial, we’d expect there will be a bit quibbling over whether the term “napalm like substance” is objectionable and whether this video from the Consumer Product Safety Commission is admissible.

Evidence of Drug Use May Be Relevant in Product Liability Litigation

Evidence of a plaintiff’s use of drug and alcohol is often admissible in a personal injury action.  While prejudicial, the usage of such substances is highly relevant when it contributed to causing the injury of which the plaintiff complains.  Simple enough.  But what happens when there is evidence of drug use in product liability litigation (by a plaintiff, not a manufacturer)? You can seek the support of drug rehab centers to treat patients with drug addiction. But the same cannot be assured when there is evidence of drug use in products. Certainly, a product remains defectively designed or manufactured regardless of the user’s propensity to indulge in body altering substances, right?  Maybe not, says the Western District of Louisiana.

In Graham v. Hamilton, No. 3:11-609, 2012 WL 1898667 (W.D. La. May 23, 2012), the plaintiff’s alleged that the door latch design in a Chevrolet Camaro was unreasonably dangerous because it allowed an unlocked door to open during a motor vehicle accident.  As plaintiffs, the widower of the driver and the guardian of a child passenger, argued that had the door latch not been defectively designed, the driver would not have been ejected, would have survived the accident, and rescued her child before he died when the vehicle caught fire.

But there is one problem – the driver was under the influence of marijuana at the time of the accident.

The plaintiffs moved in limine to exclude the evidence of drug use as unfairly prejudicial.  They argued that the mere mention of marijuana would

[C]reate an over-arching presence in jury deliberations which would cause a miscarriage of justice related to the issues of whether the Camaro was defective . . . .

The Court agreed that the evidence was highly prejudicial; however, the potential prejudice to the plaintiffs did not outweigh the probative value of that evidence.  According to the Court, the driver’s use of marijuana made it more likely that she caused her injuries and less likely that she could quickly remove her child from the vehicle.  As such, this evidence should be left in the jury’s hands.

We here at Abnormal Use don’t intend to engage in a socio-political debate regarding the use of marijuana.  But under the facts of this case, we must applaud the Court’s decision.  While we have no idea whether the design of the door locks was defective, a plaintiff’s own comparative fault must be considered.  The question is not whether product can be defectively designed when the user is high.  Rather, the question is whether a plaintiff should be able to recover when, despite the alleged defect, he had a hand in causing his injuries?