Friday Links

After interviewing Tiger Lawyer creator Ryan Ferrier earlier this year, we couldn’t resist posting the cover of Tiger Lawyer #3, which you see above. Apparently, it features a story called “Tiger Lawyer Must Die,” so there could be trouble for our protagonist. In case you’ve missed it, we’ve previously mentioned Tiger Lawyer a number of times (including hereherehere,here, and here.)

In last week’s edition of Friday Links, we posted the cover of Public Defender in Action #9, which depicted a gentleman – with a gun! – sitting at counsel table in a courtroom while the title character cross examined a witness (presumably on behalf of the firearm-toting figure).  In our post, we wondered who that mysterious gentleman might be and whether it was the defendant. Well, in response, a diligent reader – and the father of one of our writers – responded with these thoughts (which we have dutifully secured permission to post here):

It is customary in many criminal courtrooms for the prosecution table to be nearer the jury.  Considering that for your comic book cover, the person with the gun would be at the defense table as the jury is behind the attorney examining the witness.

The comic probably grew out of the television show “The Public Defender“, Hallmark Entertainment and Hal Roach, which ran from March 1954 to June 1955,  Actor Reed Hadley played attorney Bart Matthews as The Public Defender.  There was a Studio One production of “The Defender” in 1957 which starred Ralph Bellamy, William Shatner, and Steve McQueen. The “Perry Mason” show began in 1957 and ran to 1966 with 271 episodes.  For trivia purposes, Mason lost three times on the show:

1.”The Case of the Terrified Typist,” June 21, 1958, Episode 38. Jury returns a guilty verdict against Mason’s client. Later it turns out that the defendant is an imposter, but it was a guilty verdict at trial.

2. “The Case of the Witless Witness,” May 16, 1963, Episode 181. Mason loses an appeal.

3. “The Case of the Deadly Verdict,” October 17, 1963, Episode 185. Mason’s client is found guilty of murder and sentenced to death. Mason later finds someone else did the murder, but a guilty verdict was returned against him.

As you may recall, we occasionally write about beers with legal sounding names.  Well, Stone has released a spicy pair of brews called Crime and Punishment. Apparently, it is so spicy that the brewery filmed people taking a sip to capture their reactions.  Here’s a quote from the brewery’s YouTube page:

We have created what could arguably be described as some of the spiciest beer on the planet. Then we asked people to try it…just to see how they’d react. Hijinks ensued, dutifully recorded in slowwwww motion.

To watch the video in question, see here.

Speaking of beer, you may recall that not too long ago we interviewed Daniel Hartis, author of Charlotte Beer: A History of Brewing In The Queen City. If you missed it, you can read that interview here. Well, this week, The Charlotte Observer published Daniel’s thoughts on the opening of two new breweries, those being The Unknown Brewery and D-9 Brewing Company.  You can read that article here.

Over at Above The Law, Tamara Tabo writes about the interesting intersection of public safety laws and freedom of religion. Check it out, as it’s not what you think.

The Unreasonably Dangerous Chicken Nugget?

There is a new report that may disgust you, but it probably won’t surprise you. The American Journal of Medicine recently performed an “autopsy” of two chicken nuggets – one each from two different fast food restaurants. The results? Not good, we’re afraid. As summarized by

Nugget number one was about 50 percent muscle tissue such as from the breast or thigh, which is what most people think of when they think of chicken meat. The rest of it was made from fat, blood vessels and nerves, specifically the cells that line the skin and internal organs of the chicken.

Nugget number two was 40 percent muscle. The rest was fat, cartilage and bone.


Now, being the skeptical lawyers that we are, we’d like to point out a few things that were acknowledged by the authors of the study.  First, two nuggets is not exactly a scientific sample.  Second, we’d like to know which restaurants sold these chicken nuggets so that we could look at the ingredients list(s) and determine if there is anything potentially questionable as to its representations.  Would it be a potentially false advertising claim to promote such nuggets as “all white meat,” for instance?  Is the ingredient list inaccurate?  Third, it is possible, although highly unlikely, that these nuggets are not indicative of the fast food industry as a whole, indicating another issue with the so-called “sample.”

Until these pressing questions are resolved, however, you might want to skip the nuggets.  We’re sure the fries are all natural. Until then, we await the nugget litigation.

FDA Considering Rule Change Affecting Suits Against Generic Drug Makers

Through the years, many of our posts here at Abnormal Use have focused on the Food and Drug Administration and, in particular, its treatment of generic and brand name drugs.  Despite the drugs’ apparent ability to be substituted for one another medically, the FDA treats generics and brand names very differently in terms of the manufacturers’ liability, and the ability to change or alter warning labels.

In the terms of this fort myers addiction care center, generic drug manufacturers have very little control over the labels that are placed on their products.  The labeling and warning requirements promulgated by the FDA with regard to a particular brand name drug are simply passed along to the generic form of the drug—in other words, generic drug manufacturers are required to provide the exact same warnings as the brand name drug.  The lack of control, however, is met with a corresponding insulation from liability—in the past, the Supreme Court has shielded generic drug manufacturers from lawsuits involving allegations of inadequate labeling.

All of that may be changing, thanks to the U.S. Supreme Court’s June 2013 ruling in the case of Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466, 186 L. Ed. 2d 607 (2013) [PDF].

Some background is necessary here.  Plaintiff Karen Bartlett suffered severe injuries allegedly caused by a generic anti-inflammatory drug, sulindac, manufactured by Mutual Pharmaceutical Co.  Bartlett, who took the drug for shoulder pain, suffered severe burns over much of her body and is now nearly blind.  The Court’s opinion is difficult to read in some places, outlining Bartlett’s medical ordeal in graphic detail.  Bartlett spent months in a medically induced coma, was tube-fed for a year and underwent a dozen eye surgeries. Rather than focusing on labeling requirements—a sure loser of an argument based on precedent—Bartlett alleged that the drug was designed defectively and was unreasonably dangerous.  On appeal, the Boston-based appeals court ruled in favor of the damages awarded to Ms. Bartlett, opining that the Mutual Pharmaceutical could have (and by implication, probably should have) decided not to sell sulindac at all. For its part, the Supreme Court did not see the case the same way, and reversed the award, saying the company was “not required to cease acting altogether in order to avoid liability.”  The high court ruled in favor of the manufacturer, causing a virtual uproar in the consumer drug world.  As cited in this Wall Street Journal online article, “Critics have argued that it makes little sense that a consumer’s right to sue depends upon whether he took a brand-name drug or a generic equivalent.”

Fast forward five months, and the FDA has taken note of the uproar.  It recently proposed to grant (or burden) the generic drug manufacturers with the same ability to change their labels as brand name manufacturers, with the FDA ostensibly requiring the same rigorous review process as applies to brand name drugs.  Quoting The Wall Street Journal law blog’s analysis:

If adopted, the new regulation would remove a legal distinction that prompted the Supreme Court to shield generic drug makers from product-liability lawsuits, even while allowing such claims against manufacturers of brand-name drugs.

The implication being, of course, that it would open up generic drug makers to liability.  As is expected with any major change to regulatory policy, reaction has been mixed:

Public Citizen, which had petitioned for the FDA rule change, praised the move Friday, saying it would “provide added protection to the tens of millions of people who regularly use generic drugs.”  The Generic Pharmaceutical Association reacted cautiously, saying it is concerned that multiple labels on the same drug “could drive up costs…and should be approached very carefully.”

This is a development to be watched carefully.  Depending on how the FDA amends its rules, a flood of litigation could be building right behind the change.  It might also mean the demise of some generic drug manufacturers who don’t wish to be in the lawsuit business.  It’s going to be an interesting season at the FDA, for sure.

Yes, Virginia, There Is A Movember

We here at Abnormal Use are as frustrated as anyone about the growing trend in society to leap from Halloween straight into Christmas, overlooking that wonderful holiday season that falls in between – you know, Movember.  What is Movember, you ask?  It’s a worldwide charitable effort to raise awareness about men’s health issues, such as prostate cancer, testicular cancer, and mental health issues.  And it involves growing awesome mustaches and other such facial accouterments during the month of November.  Not wanting to miss out on this movement, some of the gentlemen in our firm have thrown their name in the ring, even forming an official Movemeber team page with two of our construction lawyers, an intellectual property lawyer, a corporate lawyer, and two defense litigators, all on board.

Why do this?  Maybe it’s the chill in the fall air.  Maybe it’s the personal grooming habits of the Boston Red Sox.  Maybe it’s an excuse not to shave.  Maybe it’s just idle silliness.  To some extent, it is probably each of these, but there is actually some good to be gained.  Because the point of Movember is to raise awareness about men’s health issues, our team has been throwing out some tidbits from time to time.  For example, did you know that men are significantly less likely than women to see a doctor for preventative care?  Did you know that 1 in 6 men will face prostate cancer at some point in their lives – a rate higher than breast cancer in women – but that if detected and treated early, there is a 97% success rate?

Of course, this is a law blog.  So what does this have to do with the law?  Straight-laced lawyer-types of today who prefer a clean shave often overlook the long tradition of fantastic facial hair in our profession.

Take Justice Oliver Wendell Holmes, who sported quite a ‘stache in his day:

(Image courtesy Wikipedia).  Last year, Bloomberg Law sported its own Movember team and created a video of some of the most famous legal mustaches, which you can see here.  So while we may indeed be engaging in idle silliness and raising awareness about men’s health issues, we are also making our own tribute to the law.  And also not shaving.

Veterans Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veteran’s Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past. To commemorate the occasion, we direct your attention to the comic book cover above – that of Our Army At War #295, published way, way back in 1976. Not too long after, this series was renamed Sgt. Rock. Thank you again to our veterans for their service.

Friday Links

Two weeks ago, we brought to your attention Public Defender In Action, a legal themed comic book series from the 1950’s with which we were previously unfamiliar.  Above, you’ll find the troubling and uncomfortable cover of issue #9, published way, way back in 1957. Let’s consider this cover. We see the judge, the bailiff, a witness, and the public defender presumably cross examining said witness. (We doubt the public defender would be gesticulating so – or the witness reacting in such a way – during a direct examination.). So who is it in the foreground producing a gun from his attache case? Is it the public defender’s client – the defendant? We doubt it, as we can’t imagine why the defendant would want to interrupt his own lawyer’s examination with a fusillade. Is it the prosecutor? Surely not.  To be sure, it’s an odd and disturbing image. We’ll see if we can track down this issue and determine what is actually occurring.

Here’s our favorite excerpt from a federal court opinion this week:  “The Beastie Boys are a famous hip-hop group ‘from the family tree of old school hip-hop.'”  See Beastie Boys v. Monster Energy Co., — F. Supp. 2d —-, No. 12 Civ. 6065(S.D.N.Y. Nov. 4, 2013) (citing Beastie Boys, InterGalactic (Capitol Records 1998)).

Jeff Richardson at the iPhone J.D. blog reviews the new iPad Air.

“With all the focus on using Facebook, Twitter, and the newest communication technologies, the basics of practicing law are often pushed to the wayside,” writes Bill Miller of Greer & Miller, L.L.P in “Witness Preparation Program,” which appears in this month’s Texas Bar Journal. To see the full article, please see here.

The ABA Journal brings us “The Top Trials That Changed The World.”

Finally, we here at Abnormal Use and Gallivan, White & Boyd, P.A. are very pleased to announce that eight of our firm’s attorneys have been recognized as being among the 2013 Legal Elite of the Midlands by Columbia Business Monthly. Those who were honored include:

  • James Brogdon – Personal Injury
  • Johnston Cox – Insurance
  • Will Harbison – Workers Compensation
  • John Hudson – Healthcare
  • John T. Lay – Civil Litigation
  • Shelley Montague – Construction
  • Grayson Smith – Insurance
  • Childs Thrasher – Environmental

Our Columbia office opened in June 2011 with six attorneys.  In just two years, we reached sixteen lawyers. How about that?

The New York Times Reflects On Post-Liebeck Life

Recently, The New York Times published a “Retro Report” on the infamous Stella Liebeck McDonald’s hot coffee case. The report included a 12 minute video on the “facts” of the case which contained interviews from the parties’ attorneys as well as a Wake Forest professor. Since we have already written ad nauseum about the facts and published a comprehensive FAQ file on the case, we will refrain from any unnecessary repetition. That said, the writer Hillary Stout’s well-done article, however, presents some novel issues worthy of comment. So here we go again.

Stout’s point is this: Regardless of your opinions on the merits of the Stella Liebeck case, significant safety advances have been made in the field of coffee safety – sculpted lids, lower serving temperatures, cup holders, et cetera. – since the verdict was rendered more than 20 years ago. While the actual effect of the Liebeck lawsuit on these advances is unclear, Stout’s point is well-taken. But, what common product with any potential to cause injury hasn’t been made safer over the last two decades? No matter the product, we should always seek safer, more convenient alternatives. Coffee is no exception. The advances in serving coffee are certainly designed with safety in mind. Interestingly, however, none of the safety advances involved lowering the serving temperature to less than 130 degrees – the temperature at which Dr. Turner Osler testified in the Liebeck case could have caused her third-degree burns. While the report states that McDonald’s has lowered its serving temperature from 180-190 degrees to 170-180 degrees (that of Starbucks), the lowered temperatures would not prevent burns such as Liebeck’s. Despite the advances, one fact remains: people like coffee hot.

As Stout properly points out, coffee, at least that purchased from restaurants, is far more prevalent today than it was in Liebeck’s era. No one who has ever driven past a Starbucks at 8:00 a.m. would contend otherwise. With greater consumption comes the increased chance of injury. Despite all of these safety advances, coffee accidents still occur. Stout reports that an average of 80 people a year are hospitalized for coffee and tea burns (many of which occurred at home) at the William Randolph Hearst Burn Center at New York-Presbyterian/Weill Cornell Medical Center. Whether the cup is more insulated or contains a sculpted lid, people will continue to have accidents when drinking a hot beverage. But, not everyone will file suit over it. Hot liquids, whether 130 degrees or 170 degrees, will burn if spilled. Absent lowering the temperature to a point at which the beverage becomes undrinkable, no safety advance will change that.

On another note: Remember the time The New York Times cited to our blog about the McDonald’s hot coffee case? If not, see here for more on that fateful day.

When Life Gives You Lemons, Make New Law

The Chinese automotive industry (both domestic and import) has grown exponentially in recent years.  Reportedly, some of the consumers driving this growth have complained of defects in the vehicles they purchased, and apparently, some of them feel that their complaints have been ignored. This problem received attention in a YouTube video featuring several men destroying an Italian sports car with sledge hammers.  According to the video’s caption, a Chinese man purchased a Lamborghini Gallardo, and much to his dismay, the engine would not start.  He believed that his attempts to reach out to the manufacturer and Chinese affiliates were ignored, so naturally, he decided to make a statement by paying a group of men to destroy his vehicle.  The aggrieved Lamborghini purchaser succeeded in making a statement, as his destruction video has received over 722,000 hits on YouTube.

In the United States, consumers have legal redress if the vehicle they purchase turns out to be defective.  Most states have a “lemon law” which protects consumers in the event that they have purchased a defective vehicle, or a “lemon.”  For example, South Carolina has legislation in place which  requires the manufacturer of a new vehicle to conform to all express warranties within the first twelve months of purchase or first 12,000 miles of operation, whichever occurs first (S.C. Code Ann. § 56-28-30).  If the vehicle is nonconforming as defined by the statute, the manufacturer is required to make necessary repairs if the consumer provides requisite notice to the manufacturer.  Alabama’s lemon law protects consumers from certain defects in specified vehicles for two years or 24,000 miles, provided that various notice and other requirements are met.  (Code of Alabama §§8-20A-1 through 8-20A-6).  Until recently, China had no such law, so Chinese consumers were stuck with the costs of repair of a defective vehicle, or the cost of a sledgehammer mob if they decided to go that route.

On October 1st, 2013, a new Chinese law went into effect to address the apparent spate of consumer complaints regarding lemons.  The law is known as San Bao, or The Three Guarantees. The law is part of a consumer protection plan engineered by the Chinese government to protect consumers.  San Bao allows the manufacturer and/or consumer to choose from three methods of making the purchaser of a defective vehicle whole:  repair, exchange, or return.  The law is meant to balance consumer protection with the interests of the Chinese automotive industry. The immediate effect on the consumer is obvious, but the costs to the Chinese automotive industry are uncertain at present. At the moment, Chinese automotive sales are perhaps the biggest driver in the global automotive sector, and with some predicting Chinese automotive sales to nearly double by 2019, San Bao could have a global economic impact. We’ll keep you posted on this front.

South Carolina Supreme Court Orders Bar Members To Update AIS Information By December 15

If you’re a South Carolina lawyer, you definitely need to know about an order that the South Carolina Supreme Court issued yesterday.  In said order, the Court ordered all South Carolina lawyers to login to the Attorney Information System and change passwords, update security questions, and update and verify biographical and contact information.  Failure to to so could result in a suspension.

For easy reference, here’s the the text of the full order:

The South Carolina Judicial Department is currently developing an e-filing system to allow the electronic filing of documents in the courts of this State.  This system will rely, in part, on the information already maintained by the Attorney Information System (AIS), and lawyers will ultimately use their AIS user name and password to access the web-based portal for e-filing.  In preparation for e-filing, it is necessary to make various security enhancements to AIS.  This includes requiring stronger passwords.

Accordingly, between the date of this order and December 15, 2013, every member of the South Carolina Bar (including those holding limited certificates to practice law), and every foreign legal consultant licensed under Rule 424 of the South Carolina Appellate Court Rules (SCACR), must log-on to AIS and:

(1)  Change their password to a stronger password meeting the requirements specified in AIS.  Once logged-on, the lawyer or consultant will immediately be prompted to update their password and will be provided with detailed information on the complexity required for that password.

(2)  Choose and answer updated security questions.  The lawyer or consultant will be automatically prompted to provide this information once a new password is entered.

(3)  Update and verify their information in AIS, including their contact information.  Lawyers and consultants are reminded that the contact information in AIS, including the required e-mail address, is the official contact information for them.  Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).

Lawyers and foreign legal consultants who have not changed their password and security questions, and verified their AIS information, will not be allowed to pay their license fees for 2014 until they have done so.  This may result in the lawyer or consultant being suspended under Rule 419, SCACR.

(Emphasis in original).

The process only takes a few moments to complete.  To access the Attorney Information System in order to comply with the order, you can click here.

To see the Supreme Court’s order itself, please see here.

The Honorable Karen Williams (1951 – 2013)

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. were saddened this weekend to learn of the passing of former federal circuit court judge Karen Williams. Admitted to the South Carolina Bar in 1980, she was appointed to the U.S. Circuit Court of Appeals for the Fourth Circuit by President Bush in 1992.  Following that appointment, she became the first female jurist on that court and rose to be the first female chief judge of that circuit a number of years later. She retired from the bench in 2009.  South Carolina’s legal community has suffered a great loss, and our thoughts are with her family at this sad time. To read The State‘s article on her passing, please see here, and to find her obituary in Orangeburg, South Carolina’s Times and Democrat, please see here.

For informations on memorials, please see this article from WISTV.