Election day is (finally) over, but we noticed a few interesting stories and issues on Tuesday worthy comment and reflection.  That’s right: we are not ready to end the madness.  We promise we won’t make you watch another television ad, however.

The Intersection of Technology and Voting

We all heard stories post-Sandy of how the election might be affected by East Coast power outages and transportation difficulties.  The affected states tried to prepare for those contingencies.  But what if you weren’t expecting it?  A college professor of mine posted on a certain social networking site that when he was checking in at his polling place, the laptop used by the volunteer crashed.  After rebooting, it would not print him out a ticket to vote, because the computer thought he had already voted (because he had already been checked in right before the crash).  Eventually, my former professor was allowed to vote, but the event raised an interesting issue about the intersection of technology/products and election law.  We are now extremely dependent on technology to exercise one of our fundamental rights as Americans.  I wonder what my professor’s remedy would have been if the computer – and not any mistake he made about a polling location, etc. – was responsible for him not being able to vote. A products case, perhaps?

On cell phone cameras and ballots

The Wall Street Journal Law Blog had an interesting post about posting pictures of your ballot.  I saw several photos yesterday and also wondered about this issue.  As I suspected, it is illegal in many states to photograph one’s ballot. Why?  Why is it illegal to take, let alone post, pictures of completed ballots?  Under Wisconsin law, it constitutes election fraud, a Class I felony.

We’d love to hear some arguments against – and for – these laws.

Inauguration day considerations

Finally, The WSJ Blog also featured a very interesting post on the effect of Inauguration Day, January 20, falling on a Sunday.  I assumed (wrongly) that the Inauguration would simply take place on the following Monday.  Well, apparently not.  The successful candidate will simply take the oath of office privately on Sunday, and then in the public eye on Monday.  This will not, of course, be the first time that a president elect will take the oath more than once.  Recall that Justice Roberts mixed up some of the wording with President Obama during his 2009 Inauguration, and they had to re-do it behind the scenes again later –  just to ensure the president had taken the actual oath.

On October 1, 2012, the Southern District of Florida issued its opinion in the case Hernandez v. Altec Environmental Products, LLC, No. 10-80532-CIV, 2012 WL 4511341 (S.D. Fla. Oct. 1, 2012).  The case involved Guadalupe Hernandez, an employee of Asplundh Tee Expert Co., who suffered a severed hand while operating a wood chipper manufactured by Altec Environmental Products, LLC (“AEP”).  Mr. Hernandez and his wife brought suit against AEP and another Altec entity, and both defendants moved for summary judgment in the case.

The wood chipper at issue in this case was a CFD 1217 model.  As designed and manufactured, the wood chipper had a guard that covered the bottom of the housing for the in-feed roller, which was referred to by the Court as the safety cover.

The safety cover was bolted to the wood chipper with eight bolts.

Here’s a picture we found of the chipper:

More pictures can be found here.

On the day of the accident, however, the safety cover was not on the wood chipper.  Why?  Because it had been removed by the Plaintiff’s employer.  Mr. Hernandez was aware of that fact.  Apparently, the safety cover was removed because the machine had a tendency to jam with debris, which needed to be constantly cleared from the in-feed rollers to keep the machine working.

Mr. Hernandez had been trained by his employer to clear debris from the machine with his hand, which could only be done with the safety cover off the machine.   Mr. Hernandez was not paying attention as he cleared debris with his hand on the day of the accident, and that’s when he got his hand severed.

At the summary judgment phase, the Plaintiffs argued the machine was defectively designed, causing it to jam repeatedly.  Plaintiffs contended that this purported defect actually encouraged operators to remove the guard and leave it off, which they argued was a foreseeable event.  This was a creative argument, but the Court wasn’t buying it:

At the hearing on the instant motion, the Court pressed Plaintiffs’ counsel to cite any cases that held a manufacturer strictly liable for failing to modify a design of a product that when used as directed was not harmful or dangerous, but when foreseeably misused or put to an unintended use, could be found to be unreasonably dangerous.

The plaintiffs cited Norton, an Eleventh Circuit case in which the key piece of evidence against the manufacturer on a design defect theory was the failure to install a dead man’s switch on a mower.  But the Court in this case quickly dismissed that argument:

A few months ago, just back from maternity leave, I blogged about how I was feeling so inundated with warning labels.  We had just finished a house renovation, and I’d just had my second child, so the number of warning labels on everything from the new tub to the baby’s carseat were starting to drive me a little batty.  Okay, it could have been the sleep deprivation too, but I did wax poetic on the warning labels issue in that post.

Case in point.  Recently, I received a notice by email and in the mail that there has been a recall on Bumbo Baby Seats.  If you have no idea what I’m talking about, here’s a picture of one of these contraptions before the recall:

Now, I know it looks like a medieval torture device.  It’s not.  It’s one of the best baby products ever invented.  You put your not-quite-sitting-up-infant in the seat and WHAMO!  He can sit up!  The seat is light, and babies love it.  One important thing about this seat, or at least I thought, is that the baby is so wedged into the chair that he can’t tip it over, or tip himself out of it.  Both my sons have used the Bumbo, and neither one has ever tipped out of it.

Even before the recall, there were warnings.  Users are told not to use it in the bathtub or on raised surfaces, and there is also a warning to always watch your baby when he’s in it.  Well, it appears that wasn’t enough.  Apparently, some babies more determined than mine did, in fact, succeed in tipping themselves out of the Bumbo.  So, the company has issued a recall, and this is what the seat looks like since the company added a seatbelt:

And, of course, there is a new warning label to be affixed over the old one, something called “repair kit instructions,” and a video about how to properly use the Bumbo.

I know I’m being flippant.  Many infants and children are injured every year when products made for them are misused, or even when they are used properly (thus the recalls).  I’m not trying to trivialize those cases.  I do, however, see this as an example of the common sense filter I talked about in that prior post.

A quick comparison of the warnings included with the Bumbo prove my point.  The warning not to use the Bumbo in the bathtub is quite helpful–the seat resembles another product that is used to help a child sit up in the bathtub, and I can see how someone might confuse the two.  But an instruction not to leave the child unattended?  And a warning not to put a baby in the seat on a raised surface?  Come on folks.  That’s parenting/child care 101.  Those types of warnings are the worst, because they give us an excuse not to think for ourselves.  We get lazy, and believe that we need to be spoon-fed our own common sense.  We should expect–and want–better for ourselves.

As you can imagine, we here at Abnormal Use are big fans of the United States court system.  We recognize that it’s not perfect, but, on balance, it does a pretty good job protecting the rights of litigants–both plaintiffs and defendants.  The lawyers helping with bankruptcies in Oklahoma City area say that some lawsuits are just ridiculous.  We are not advocating that some people be denied access to the court system.  What we might want, however, is for lawyers to sometimes take a step back and ask potential clients, “Do you really want to bring this before a judge?”  Below are two lawsuits we found recently that might have benefited from such an inquiry.

The case of the prematurely fading lipstick:

The Wall Street Journal Law Blog recently posted about a new suit seeking class action status against Maybelline, a cosmetics company that sells lip gloss and lipstick lines that it claims will last for 10 hours and 14 hours, respectively.  The plaintiffs allege, as you can imagine, that the lip color does not last nearly as long as advertised by Maybelline and have filed suit in Manhattan federal court. That’s right.  A New York federal court is going to have to decide if Maybelline has violated federal law, as well as consumer protection laws in New York, Michigan and New Jersey, simply because women might have to re-apply lip color more than once every 10 hours.

The case of the beer bottle in the bar-room brawl:

Hat tip:  Overlawyered:

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment.

I would love to see a total bill for the court fees, lawyer time and expenses, and pro-rated judge, court reporter, and bailiff salaries that were incurred just getting this thing thrown out.  One of the comments on the Overlawyered blog suggested that the plaintiff’s lawyer be sanctioned under Rule 11.  Not sure we’d go that far, but this one definitely doesn’t pass our smell test.

Forum shopping fiasco:

While we’re on the subject of questionable moves in the legal world, I noticed a story in the Wall Street Journal on September 24, 2012 about the Philadelphia Court of Common Pleas.  Apparently, budget cuts prompted Judge Pamela Dembe to throw wide the doors of Philly’s courthouses for lawsuits–and, in turn, open the court’s wallet for filing fees.

As the story noted, lawsuits–primarily in the asbestos and pharma areas–exploded “from 550 in 2008 to nearly 2,700 last year.”   A new administrative judge, John Herron, is trying to clean up the mess that Judge Dembe’s invitation created for the court system up there.  As Judge Herron commented in the story, “Courts should not be in the business of making money.”  In our opinion, such blatant forum shopping should not be condoned–let alone suggested or supported.

In July, 2010, an eight-year-old girl referred only as “N.K.” in court documents sustained injuries when her foot became caught in the side skirt of a moving escalator at the Massachusetts Bay Transportation Authority (MBTA) Aquarium Station.  At the time, N.K. was wearing Crocs-brand sandals and riding a few steps ahead of her parents.  N.K.’s parents and other witnesses tried to stop the escalator by using its emergency stop switch, but that didn’t work.  A good samaritan finally managed to pull N.K.’s foot out of the escalator before it reached the top. N.K.’s mother, Nancy Geshke, brought a products liability action in Massachussetts federal court against Crocs, Inc.    We’re not sure if the elevator manufacturer or the MBTA were ever parties to the action, but in any event, the case proceeded against Crocs.  In its opinion granting Crocs’ motion for summary judgment, the district court discussed the various warnings posted on the escalator itself, portraying children getting caught in the escalator and warning of the same in writing, so perhaps Plaintiff chose not to pursue that avenue. See Geshke v. Crocs, Inc.,  No. 10-11567-RGS (D. Mass. Sept. 7, ,2012) [PDF].

In the suit, Plaintiff alleged a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.  Plaintiff relied primarily on a Japanese study, which purported to conclude that Crocs-type sandals were extremely apt to getting caught in escalators, perhaps more than other styles or brands of children’s footwear.

Crocs, Inc. filed a motion for summary judgment, and it was granted by the district court.  The court held that the study was never properly authenticated as a foreign document; it was inadmissible because no expert had been identified to explain the results of the study.  In addition, the warning signs on the escalator depicting and warning of the danger of children’s shoes getting caught in the escalator precluded a failure to warn theory against Crocs.  Finally, because Plaintiff’s negligence theories of defective design and failure-to-warn failed as a matter of law, her breach of warranty claims did as well.

This case is an interesting twist on the failure to warn theory.  Crocs, the manufacturer of the footwear, relied on the warnings on the escalator as evidence that Plaintiff was warned about the risk of injury from exactly this type of accident.  A good reminder that the warnings don’t always have to come from the actual product that a plaintiff alleges was the proximate cause of the injury – the warning itself is the issue, not what party is responsible for giving it to the user.

When I saw the above referenced headline on CNN’s Tech website, I had two, nearly simultaneous, reactions.  First, I had to re-read the headline.  A jury in Caifornia just awarded Apple a BILLION dollars?  With a “b”?  Yes, kids, that’s “billion.”  With a “b.”  My next, less professional, reaction was to cite a string of my favorite quotes from the movie Austin Powers.  Oh, that Dr. Evil! (We’ll wait for you here while you go watch the movie clip for yourself.).

We have been tracking the Apple-Samsung worldwide feud for months now; last November, we blogged about Apple’s victory in Australia in the so-called “tablet wars” – a federal court in Australia granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1″ in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”  Samsung faced similar troubles here in the United States.

This recent verdict was awarded in California federal court over the companies’ respective smartphones – Apple’s iPhone and Samsung’s Galaxy.  The jury determined that Samsung was guilty of “willful” violations of Apple’s patents.  It started out even bigger, but was reduced by $2.5 million when some inconsistencies surfaced in the jury’s award.  Apple had put an even bigger number “up on the board,” so to speak – $2.7 billion.  I am sure that the lawyer writing that closing had to say that figure, out loud, many times to keep it from absolutely catching in his or her throat.  Could you imagine asking a jury for that amount?  With a straight face?  But, I digress.

It is not surpristing that this award represents the largest patent infringement verdict in history.  Still to be decided is the issue of injunctions, and whether Samsung will be able to continue to sell its phone in the United States.  We’ll be watching for that decision, for sure.  In the meantime, we leave you with the quote that partially inspired this post:

Number Two: Don’t you think we should ask for *more* than a million dollars? A million dollars isn’t exactly a lot of money these days. Virtucon alone makes over 9 billion dollars a year!

Dr. Evil: Really? That’s a lot of money.

[pause]

Dr. Evil: Okay then, we hold the world ransom for… One… Hundred… BILLION DOLLARS!

For years, I have watched others obsess over their fantasy teams – fantasy football, fantasy baseball, fantasy soccer – on and on and on.  I don’t really understand the draw – making up fake teams cobbled together with players from real teams, and then “playing” these fake teams against other fake teams to see whose fake team is the best.  A strange pastime, if you ask me, and one that requires time and effort I simply don’t have.

At least for me, it’s hard to get into something that doesn’t have any application or consequences in the real world, unless you have some money riding on it.

That said, I have discovered a fantasy league I can get excited about.  Wait for it . . . .

There is a fantasy SCOTUS league!  FantastySCOTUS is an online fantasy league created by Josh Blackman, head of the Harlan Institute. It involves enthusiasts of constitutional law predicting how each member of the United States Supreme Court will rule on any given case. In its second season, over 5,000 players have registered with the website. A high school version has been created to help improve education in constitutional law. The Harlan Institute is a nonprofit organization with the mission to “bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws.”  FantasySCOTUS is one of the tools that the institute uses to educate and engage high schoolers on SCOTUS.

How does the league work?  Members earn points by correctly predicting how each justice will rule on any given case:

A Justice can either vote to AFFIRM, REVERSE the lower court, or RECUSE from the case and not cast a vote. Users can make predictions at any point before the case is decided, though predictions will be disabled on all days the Supreme Court announces that opinions will be released.

Any law student, however, can tell you that sometimes a justice will vote to affirm in part and reverse in part; in those situations, FantasySCOTUS decides whether the vote was more of an “affirm” or “reverse” vote, and award points accordingly.  And, as one would expect from such a league as this, there is a way to appeal the scoring of a particular case, using the “clearly erroneous” standard.  Challenges to the rules themselves are reviewed using the “abuse of discretion” standard.  Changes are made via blog, and players are charged with constructive notice of such changes.

Sports fans often wear the jerseys of their favorite team or player when they watch sports and update their fantasy teams.  I wonder if FantasySCOTUS will start selling Scalia or Sotomayor robes for the sake of authenticity.

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.

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.

I ran across this story recently of two men who were detained for two hours at the U.S.-Canada border after border agents discovered that the pair were attempting to bring illegal firearms drugs invasive bug species chocolate kinder eggs into the Unites States.

You know, kinder eggs – the chocolate eggs with the toy inside.

Now, I get it.  Biting into one of these eggs is potentially tricky business – the toy inside is hazardous to teeth and dental hardware, and depending on the size of the toy and the size of the person eating the egg, a potential choking hazard.  But I would never have guessed that the possession of chocolate could subject the smuggler to a hefty fine.

But, like the men who were questioned about the contraband, I wonder why the eggs weren’t even confiscated from their car.  Indeed, the pair was eventually allowed to bring the chocolate into the country.  So much for border security.

Reading this story made me curious about two things.  First, from a products liability perspective, what happens now if one of these eggs does cause someone to choke or lose a filling?  Who could face potential liability?  Can a manufacturer be held liable for injuries caused by a product in a country where the product is banned?  What about the U.S. Government, which allowed a banned, “adulterated food object” enter the country it knew was a choking hazard?  Or, the men who, after being detained, would have been aware that they were distributing a hazardous food?

Second, I became curious about what other odd items have been banned from import into the United States.  I consulted the U.S. Customs and Border Patrol website, but really all I could find was this general list, which failed to provide any real details about specific products that, if discovered, might be confiscated.

I am, however, now aware that I cannot import dog or cat fur into the U.S.

Chew on that one for a little while.