• Northwestern University, at its YouTube account, has begun to post some interesting products liability related videos, including the clip above, which features Katherine R. Latimer of Hollingsworth, LLP discussing “Products Liability Law and Pharmaceuticals”at the Judicial Symposium on The Pharmaceutical Industry, held at Northwestern in May of 2009. Other clips from the conference can be found here, here, here, and here, while the school has also posted an interesting clip of Justice Ruth Bader Ginsberg’s September 2009 visit to the institution.
• Findlaw’s Courtside blog posts this piece about the recent filing of a sudden acceleration lawsuit against Toyota and a Lexus dealer in California. The report includes a copy of the complaint as well as an excerpt of the 911 call at issue.
• In this nice post, The Mac Lawyer alerts us to Tablet Legal, a new blog designed for lawyers using Apple’s new iPad. Last week, the new site’s author concluded that “less functionality in the Ipad is better for lawyers.” The associates writing the posts here at Abnormal Use have requested iPads from their supervising partners, but as of yet, they have received no response. Surely they must have missed that set of emails?
• In a post that ran yesterday, The South Carolina Family Law Blog offers this helpful tip for locating individuals using social media. Says that site’s author: “[I]t is simply amazing sometimes to see the types of information people publish about themselves and their actions on these sites. However, in today’s web-laden society, it’s hard to know where to start looking sometimes to find all of a party’s networks.” Indeed.
• We here at Abnormal Use have no meaningful preference in this weekend’s Academy Awards show. To be honest, we rarely get to the movies these days. But we, like most, are perplexed at the Academy’s decision to nominate ten films for Best Picture as opposed to the usual five. We recoiled in horror and grieved when Quentin Tarantino’s Pulp Fiction lost to Forrest Gump in March of 1995, but we remain unconvinced that Tarantino’s latest effort is worthy of such accolades. Surely Avatar will not prevail over the far, far better Up. Perhaps the Academy members wish to avoid the type of self congratulatory display James Cameron put forth in 1998 when he won for Titanic. Tune in Sunday to see.
• Finally, if you’ll peruse our side bar, you’ll notice a new blogroll dedicated to South Carolina law blogs. Although our central mission at Abnormal Use is to discuss products liability cases, we do like to keep an eye on our local legal blogsophere. Take a look, and let us know if we’ve missed any South Carolina legal blogs of interest.

Last week, a Florida appellate court affirmed a defense verdict in a products liability case despite finding that the trial court had erred by excluding evidence. The evidence that was excluded was that the U.S. Food and Drug Administration had later banned the substance at issue, ephedrine, some six years after the Plaintiff took it. In that case, Webster v. Body Dynamics, Inc., the appellate court found the exclusion constituted harmless error, in part because of the Plaintiff’s successful introduction of evidence indicating the risks of ephedrine through an FDA witness. See — So.3d —-, No. 1D08-5114, 2010 WL 624182 (Fla. Ct. App. Feb. 24, 2010) [PDF].

The Plaintiff, a twenty six year old university student at the time of the alleged injury, suffered a stroke in the summer of 1998. For four months prior to the stroke, he had been taking Super Mini/Mini Thin Natural pills, dietary supplements containing ephedrine alkaloids, which were later banned in 2004 by the FDA. The Plaintiff sued the manufacturer and the retail establishment at which he had purchased the pills. The defendants’ theory was, in part, that young men occasionally have strokes for unexplained reasons, and the appellate court noted that “[t]he jury apparently concluded this was one such case.” (Bolstering the defense theory was the fact that no ephedrine was found in the Plaintiff’s system at any time after the stroke.).

Both before and during trial, the judge refused to take judicial notice of the ban or otherwise permit evidence of it to be heard by the jury. The appellate court found that in excluding evidence of the ban the trial court “arguably” erred because such evidence can be introduced to establish that a later-recalled product was defective at the time of the litigated injury, even if that injury occurred before the recall. However, the court found that any error was harmless. In so doing, the court noted that the jury “may well have concluded that there was no convincing proof that ephedrine was in the plaintiff’s system when he suffered the stroke.” It also referenced the detailed testimony of Dr. Parisian, an FDA official who recounted the FDA’s pre-1998 public warnings on ephedrine and the substance’s risks, including the risk of adverse effects, such as strokes, in young people taking the substance. Dr. Parisian also testified that with each pill the Plaintiff had ingested more than three times the amount of ephedrine that she considered “unreasonably dangerous” in such supplements. Nevertheless, the appellate court rejected the the notion that Dr. Parisian should have been able to testify to the ban:

. . . Dr. Parisian’s testimony conveyed in great detail the health and safety concerns that underlay the FDA’s proposal to adulterate dietary supplements containing ephedrine alkaloids in excess of eight milligrams per pill, and ultimately led to the ban of dietary supplements (but not other over-the-counter medications) containing any ephedrine alkaloid at all. Dr. Parisian testified unequivocally that manufacturers continued to market dietary supplements containing ephedrine at levels not recognized as safe and effective by the FDA. She opined in no uncertain terms that the pills Mr. Webster allegedly consumed were “unreasonably dangerous.” The testimony that strokes had been associated with ephedrine use was uncontroverted.

Dr. Parisian’s testimony explained to the jury the reasoning behind the eventual ban of dietary supplements containing ephedrine, and the entire rationale eventually set forth in the text of the rule effecting the ban. The appellant has not demonstrated a reasonable probability that proof of the ban itself would have led to a different result.

See id. at *2 (Footnotes omitted).

The majority’s ruling drew a dissent from Justice Thomas, who argued that “[a] mandatory recall and ban is relevant evidence and demonstrates a product’s design defect, even where the recall and ban is issued after the date of the product’s manufacture.” Presumably, there’s still time for the Plaintiff to appeal this decision, so perhaps the Florida Supreme Court will address the issue.

• Intellectual Property Examination Question: Suppose the students at Ole Miss are successful in changing their school mascot to Admiral Ackbar from Return of the Jedi. (See here for the full story, or if you’d like to see the websites of the students behind the effort, see here and here). What causes of action might George Lucas have against the school, and if he could make money selling Ole Miss toys, would he bother to assert them? Better yet: What claims would the government Mon Calamari, Admiral Ackbar’s home world, have against Ole Miss under the circumstances? The potential for speculation is endless. (We here at Abnormal Use are still contemplating our suit against Mr. Lucas for his perpetration of the alleged Star Wars prequels, which we believe were, as a matter of law, unreasonably dangerous and defective.).
• Bruce is in legal news again. Decided: The Findlaw Noteworthy Decisions and Settlements Blog reports on the Ticketmaster settlement with the Federal Trade Commission on behalf of Bruce Springsteen concert ticket holders. The post also includes links to the FTC complaint, warning letter, and news release regarding the settlement. Can you count all the references to Springsteen songs in the piece? Surely, though, a reference to “The Price You Pay” would have been appropriate?
• If you’re a South Carolina lawyer, and you’re a member of a rock band (or, presumably, any other type of band), here’s a unique networking opportunity for you. From this week’s South Carolina YLD Email Newsletter: “The Young Lawyers Division is calling upon talented lawyer-musicians to participate in this year’s Justice Jam, scheduled for April 30 at the Elbow Room in Columbia. Proceeds will benefit Sexual Trauma Services of the Midlands. Bands of all flavors are encouraged to submit a demo for consideration. The only qualification is that bands have at least one attorney member. Please send MP3s to Travis Olmert at travis.olmert@carterlawpa.com or CD demos to Travis at Carter, Smith, Merriam, Rogers & Traxler, PA, P.O. Box 10828, Greenville, SC 29603. All demos should be submitted on or before March 22. Remember, only send a MP3 or demo if your band is willing to play. The lineup will be chosen and announced by April 2.”
• “[T]his court recognizes the ubiquity of computers today in the workplace, in schools, public institutions, and in government, and the prevalence of agreements and policies governing such use. Many of these impose unrealistic rules honored in the breach. It takes no imagination to conjure up a multitude of trivial and not so trivial violations that take place every day in the workplace. Workers use workplace computers for personal use in violation of requirements that they use their computers for business only. Workers violate policies prohibiting access to social networking sites. Reportedly, fifty-four percent of companies ban workers from accessing social networking sites like Twitter, MySpace and Facebook, yet seventy-seven percent of workers with a Facebook account use it during work hours. S. Gaudin, Study: 54% of companies ban Facebook, Twitter at work, Computerworld (Oct. 6, 2009).” State v. Riley, — A.2d —-, 2009 WL 5879349, at *13 (N.J. Super. Ct. Oct 30, 2009) (but apparently released to Westlaw only this week).
• This past Wednesday, South Carolina Supreme Court Chief Justice Jean H. Toal delivered the State of the Judiciary Address. An archived video of the speech can be seen here, along with a PDF version of her PowerPoint presentation slides. News coverage of the speech focused upon Justice Toal’s statement that the South Carolina courts were running on fumes financially and that tough decisions lay ahead. (For additional news coverage of her speech, see here and here). (Hat tip: South Carolina Access to Justice Commission).

Today, Abnormal Use continues its new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the second installment, we turn to law professor Michael J. Virzi of the University of South Carolina School of Law. Virzi, a former prosecutor with the South Carolina Office of Disciplinary counsel, now teaches legal writing and chairs the South Carolina Bar’s Ethics Advisory Committee. He also practices in the areas of ethics and malpractice defense. The interview is as follows:

1. What recent developments in ethics law would you recommend that litigators be aware of in 2010?

Subpoena practice. Abuse of subpoena rules has been rampant for decades and, although there have been no rule changes, there has been increased awareness by the bench and attention to the limitations. The problem stems from the jurisdictional limits on a court’s subpoena power. A subpoena is essentially a court order. It is issued by the court; lawyers are merely granted the privilege of issuing them on behalf of the court. The abuse has been in issuing subpoenas outside the court’s jurisdiction. A lawyer cannot issue a subpoena that the court itself would have no jurisdiction to issue. The jurisdictional limit of the Circuit Courts is the State of South Carolina. Nevertheless, many lawyers will subpoena an out-of-state non-party entity (e.g., a bank) rather than an in-state representative. For Magistrate’s Court, the jurisdictional limit is the county in which the court sits. Nevertheless, lawyers often improperly subpoena out-of-county witnesses in Magistrate’s Court cases. The problem is particularly pronounced in City Courts—like Columbia, West Columbia, and Cayce—that neighbor county lines, but it has been reported in remote, rural areas as well. Finally, both Magistrate’s Courts and Family Courts have more limited subpoena power than Circuit Courts, as both courts lack extensive discovery procedures.

Specific Magistrate’s Court procedures were recently promulgated to clarify the appropriate way to reach out-of-county parties. Significantly, however, the rules and limitations did not change; they were merely clarified. A Magistrate’s Court’s jurisdiction—and therefore its subpoena power—has always been limited to the county in which the court sits. The disciplinary authorities have been aware of this for years, and the bar is starting to catch on.

2. What is the most significant ethics opinion to come out in the last year? Why is it significant?

The December 21, 2009, In the Matter of an Anonymous Member of the South Carolina Bar opinion by the South Carolina Supreme Court involved a lawyer issuing discount coupons through the lenders and real estate agents who referred business to him. The agents were soliciting clients in-person for the lawyer, something the lawyer himself is prohibited from doing under Rule 7.3(a). In 2007, Ethics Advisory Opinion 07-09 had advised that such conduct would be impermissible under 7.3(a), even though the lawyer personally does not conduct the in-person solicitation, because Rule 8.4(a) prohibits a lawyer from violating any of the Rules of Professional conduct “through the acts of another” and from “assisting or inducing another to do so.” The Ethics Advisory Committee believed that 8.4(a) prohibited a lawyer from having a surrogate solicit clients in person where the lawyer may not do so according to Rule 7.3(a).

The Court in In the Matter of an Anonymous Member of the South Carolina Bar expressly overruled 07-09, stating that the policies underlying the in-person solicitation prohibition are not compromised where the lawyer is not personally present. Because there is no “insistence upon immediate retention or importuning of the trained advocate,” in-person solicitation through a surrogate is not prohibited. The reasoning is simple, but the consequences are profound. The court essentially held that the “vicarious misconduct” prohibition of 8.4(a) does not apply to 7.3(a). The court has never previously held any of the Rules exempt from 8.4(a), nor am I aware of any other jurisdiction having done so. The court’s reasoning applies equally to ambulance drivers, triage nurses, police officers, jailers, and any other party a lawyer might use to personally solicit clients by handing out business cards or coupons in the lawyer’s stead. The court held that whether the recipient is in need of legal services is irrelevant. Because the practice is “similar in fashion to the common practice of leaving business cards for distribution” and the agents are not under the lawyer’s control (they “could have thrown away the coupons”), the court found the agent-solicitations permissible.

3. What do you think is the most overlooked ethical rule? Why is it overlooked?

Probably 7.2(b), or at least its applicability to electronic media. 7.2(b) includes the filing and record-keeping requirements for all lawyer advertising. Too many lawyers fail to realize that their web sites constitute advertising under the Rules and therefore fail to conform their sites to the specific prohibitions regarding advertising. Even when the content of online information is in conformity with the remainder of Rule 7.2, too many lawyers fail to file the materials with the Commission on Lawyer Conduct and keep copies for two years “along with a record of where and when it was disseminated” as required by 7.2(b).

4. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

Despite all the hype about how the Rules of Professional Conduct need to “catch up” with technology, I think the rules are adequate and state disciplinary authorities will simply apply them as written to online communication. I think lawyers, one by one, will continue to be shocked and amazed that their online conduct is measured against Rules 7.1 (communication), 7.2 (advertising), and 7.3 (solicitation), but regardless of the forum or medium, communicating is communicating, advertising is advertising, and soliciting is soliciting. The rules make no distinctions between print, radio, or television, and they need no special provisions for the Internet or other media. The rules distinguish only between that which is “disseminated via public media” and that which is not. If your use of Facebook is kept private among your friends, it’s not publicly disseminated. If you allow it to be viewed publicly, then it’s disseminated. Anything searchable by public search engines like Google and Yahoo! is disseminated under the rules. Linked-In and Twitter are likewise publicly disseminated. That doesn’t mean lawyers can’t use these services; it just means they are regulated when used in relation to the lawyer’s practice, as opposed to being used solely in a lawyer’s personal life.

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

To paraphrase Polonius (Hamlet, Act I, Scene III), “Above all else, to thine own self be true.” Never let any partner, associate, client, opposing counsel, judge, or anyone else talk you into doing something you think is wrong. Never be afraid to walk away. Your fears and your needs can quickly and easily become someone else’s power over you, and those who would wield that kind of power would never wield it in your best interest.

BONUS QUESTION: What do you think is the best depiction in popular culture of an attorney facing an ethical issue?

I really enjoyed Jim Carrey’s performance as Fletcher Reede in Liar Liar. Fletcher’s son cast a spell on him, prohibiting him from lying just before Fletcher was to represent a client in her divorce hearing. He knew his client was having an affair, which would trigger a clause in her prenuptial agreement prohibiting her from receiving any of her husband’s multi-million-dollar estate. The spell prevented Fletcher from examining her or the paramour without disclosing the affair. (Ignore for a moment that he was perfectly willing to allow his client to lie on the stand — arguably, he never “faced” that issue). At one point he objected to certain testimony, the judge asked why, and Fletcher responded, “Because it’s devastating to my case!” But his best effort was at getting a continuance until after the spell was broken, which he could not truthfully tell the judge he needed. To get the continuance without lying, he went into the bathroom and beat himself up. When the judge asked who had done it, Fletcher replied, “A madman, your honor, a desperate fool at the end of his rope.” Nevertheless, the ploy failed. The best part was watching Fletcher struggle to find an honest, truthful path to victory in the case. Ultimately, he discovered that his client had lied about her age in order to get married early, a revelation that also voided her prenuptial agreement for incapacity and entitled her to half of her husband’s estate despite the infidelity.

BIOGRAPHY: Mr. Virzi teaches Legal Writing at the University of South Carolina School of Law and practices in Columbia in the areas of ethics and malpractice defense. He formerly worked as Assistant Disciplinary Counsel for the Supreme Court of South Carolina. He graduated cum laude from the University of South Carolina School of Law in 2000. He is a member of the North and South Carolina Bars and is currently the Chairman of the South Carolina Bar’s Ethics Advisory Committee. In 2009, he served on the South Carolina Bar Young Lawyers Division Social Media Task Force.

Well, it’s Friday, so we might as well have some fun with popular culture. The law is not often a subject for the poets and singer songwriters, but when it is, such artists are usually at its mercy. Case in point: In the YouTube clip above, Bruce Springsteen covers “I Fought The Law,” made famous by the Bobby Fuller Four, and covered by many bands, including The Clash in 1979, the Dead Kennedys in 1987, and Green Day in 2004. (That’s right; you are reading a products liability law blog written by defense attorneys who know and reference punk bands.). Wikipedia alerts us that the song was done originally by Sonny Curtis and The Crickets (after the death of the late, great Buddy Holly). However, it was the Bobby Fuller Four’s version that brought the song into the public consciousness. Enjoy.

The question: Are personal letters from U.S. Supreme Court Justices to screenwriters considered persuasive authority? This week, the blogosphere has been picking apart Justice Scalia’s 2006 letter to screenwriter Daniel Turkewitz, whose brother, Eric Turkewitz, runs the New York Personal Injury Law Blog. Daniel had been researching the basis for a screenplay about Maine and secessionists, and not being a lawyer, he wrote all sitting members of the U.S. Supreme Court for advice on how to depict a legal dispute over secession in his film to be. Eric posted a copy of Justice Scalia’s response at his blog on Tuesday, and since that time a number of blogs have discussed it, including two separate posts at The Volokh Conspiracy (here and here). If you’ve not yet read the letter, check it out. Interestingly enough, Justice Scalia was the only Justice to reply to Daniel’s letter.

The Busy Lawyer’s Guide to Success has posted its Top Ten iPhone Apps for Busy Lawyers. (Hat tip: The Mac Lawyer). We here at Abnormal Use recommend TweetDeck, and, of course, Shazam, which no lawyer – indeed, no person – should be without.

According to this report at Injured: The Findlaw Accident, Injury and Tort Law Blog, Plaintiff’s lawyers are already seeking black box data from Toyota in the new acceleration suits. Attorneys should keep an eye on this litigation. Although some black box data can be downloaded by third party applications and consultants, some cannot. If judges get into the habit of granting orders compelling automotive companies to download their vehicles’ black box data, how might those same judges rule in later personal injury cases in which the automotive company is not (necessarily) a defendant? We’ll see.

Product warnings can be clear, they can be ambiguous, they can be sufficient, but if they are not placed where they can be seen, then they may be all for naught. This remains true when the product at issue is a watercraft. In Thomas v. Bombardier Recreational Prods., Inc., the court denied in part the defendant manufacturer’s motion for partial summary judgment because although the warning would have been visible to a watercraft’s driver, it may not have been so easily seen by a passenger. See — F. Supp. 2d —-, No. 2:07-CV-730-FtM-29SPC, 2010 WL 326113 (M.D. Fla. Jan. 21, 2010). Thus, in that case, the jury will decide the issue.

The case arose out of a May 2007 accident during which an 18 year old female Plaintiff was injured after falling off a personal watercraft (i.e., a jet ski) manufactured by the defendant, Bombardier. She apparently had not planned to ride a watercraft that day until she encountered some friends at the beach who had their own watercraft. In fact, she had never ridden a watercraft before the day of the accident, which she communicated to her friend, the owner of the craft. Wearing a bikini and a life jacket (but no other protective clothing or gear), she, as the passenger, held onto the driver’s waist by way of his life jacket straps. At some point during the ride, she lost her grip and fell backwards into the water. As a result of the fall, she suffered internal injuries which resulted in several surgeries. Plaintiff testified that she herself saw no warning labels.

The personal watercraft did feature warnings under its handlebars (which the court noted were “in front of the driver”), the relevant portions of which read:

WARNING

To reduce the risk of SEVERE INJURY DEATH:

WEAR PROTECTIVE CLOTHING. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near jet thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into lower body opening(s) of males or females. All riders must wear a wet suit bottom or clothing that provides equivalent protection (ss Operator’s Guide). Footwear, gloves, and goggles/glasses are recommended.

…

To Wear

…

The operator and passenger(s) must wear protective clothing, including:

-A wet suit bottom or thick, tightly woven, snug fitting clothing that provides equivalent protection. Thin bike shorts for example would not be appropriate. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near jet thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into the lower body opening(s) of males or females.

Id. at *2 (emphasis added). The warning was also accompanied by graphics indicating the appropriate attire to be worn by drivers and passengers of the watercraft.

In light of the language advising passengers what to wear when riding on the watercraft, Bombardier moved for partial summary judgment on Plaintiff’s warning claims. The court first found that the warning itself was “clear, specific, and unambiguous” and that it “it accurately, clearly, and unambiguously warned riders, including a passenger, of the foreseeable dangers of catastrophic injury.” Id. at *3. Nevertheless, the Court denied Bombardier’s motion for summary judgment on those grounds due to the placement of the warning. In so doing, the court concluded that because “the Warning was arguably placed where only the driver could readily observe it . . . a jury question exists as to the adequacy of the Warning based upon its placement.” Id. However, in reciting the facts to the case, the court recounted the Plaintiff’s testimony that she did not recall anything that would have prevented her from seeing a warning label.

Further, it seems that the court may have only considered Plaintiff’s vantage point at the time she was riding the watercraft, not at any time beforehand. The opinion does not recount in detail the facts leading up to the Plaintiff’s riding the watercraft. Presumably, though the warning may not have been fully visible to a passenger at the time that the driver was also upon it, it may have been completely visible at the moments immediately prior to either person actually climbing aboard it. The court did not analyze or elaborate upon those issues.

The Court did grant one portion of Bombardier’s motion. The Plaintiff claimed that Bombardier “violated federal regulations, standards, and statutes pertaining to the obligations of consumer product Manufacturers to recall and make modifications to a product after the manufacturer knows or should have known of a defective feature in such product.” The basis of Plaintiff’s claim was that Bombardier assumed the duty to replace the Warning label by virtue of a provision in the Operator’s Guide. In rejecting this claim, the court found that Florida law imposed no such requirement and that Plaintiff “simply place[d] far more weight on this replacement provision than it will bear.” Id.

• “It is not always sunny in Philadelphia for product liability lawyers – especially defense lawyers like us,” – Jim Beck, writing in this post, entitled “It’s Sunny in Philadelphia,” at the Drug and Device Law blog. How can you not read a post with that introduction? (Unfortunately, however, there is no mention of Green Man in this particular post.).
• Brian Comer at the South Carolina Products Liability Law Blog has a nice post analyzing South Carolina warning law and how it might be applied in the context of cell phone use while driving cases. We previously posted on that topic here. In his post, Comer concludes:
  

  [T]his is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.

  So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of “obvious risk.”

  He may be right. As commonplace as cell phones are today, it is difficult to imagine a jury of 12 individuals (all of whom likely have cell phones themselves) abandoning the common sense idea that a driver is responsible for his own actions while on the roadway. Cell phone providers would have a strong argument that the driver’s actions at least were a superseding cause of the injury-producing activity. However, the common sense approach to refuting liability may not be as convincing against a manufacturer of new age, interactive, electronic devices designed specifically for installation directly in the driver’s dashboard.

• “We hold that the limitation on noneconomic damages in medical malpractice actions set forth in section 2-1706.5 of the Code violates the separation of powers clause of the Illinois Constitution and is invalid. Because the Act contains an inseverability provision, we hold the Act invalid and void in its entirety. ” Lebron v. Gottlieb Memorial Hosp., — N.E.2d —-, Nos. 105741, 105745., 2010 WL 375190 (Ill. Feb. 4, 2010) (citations omitted) [PDF]. The Illinois Supreme Court found that the $1 million limits for hospitals and their personnel and $500,000 limits for doctors operated as an “unconstitutional legislative remittitur.” (Link courtesy of the Mass Tort Litigation Blog by way of the In the Jury blog).
• The WSJ Law Blog reports on Merck’s recent settlement of shareholder lawsuits arising from its withdrawal of Vioxx from the market.

Since it’s Friday, we thought we’d share the above clip, which is one of our favorite depictions of a legal hearing in popular culture. It comes from the 1981 film, Absence of Malice, starring Sally Field as a naive young newspaper reporter and Paul Newman as the peeved object of her journalistic investigation (as well as that of her affection). Field’s reporter has been led to believe by the governmental authorities that Newman’s character is under investigation for murder. This scene, which comes late in the film, shows Wilford Brimley, who plays a senior Department of Justice official, taking everyone – and we mean everyone – to task for their unsupervised antics and sloppy approach to the administration of justice. (The second half of this clip can be found here).

Yesterday, in a divided opinion, the Fourth Circuit issued an important decision in the removal context of which defense counsel should be aware. In announcing its new adherence to the last served defendant rule, the Fourth Circuit stated that it would “join the Sixth, Eighth and Eleventh Circuits in adopting thelast-served defendant rule and hold that in cases involvingmultiple defendants, each defendant, once served with formalprocess, has thirty days to file a notice of removal pursuant to28 U.S.C. § 1446(b) in which earlier-served defendants mayjoin regardless of whether they have previously filed a noticeof removal.“ Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., — F.3d –, No. 08-1740 (4th Cir. Feb. 4, 2010) (PDF). For some early analysis on this matter, see this post at the North Carolina Appellate Blog.

This past December, the ABA Journal issued its third annual list of the best legal blogs. (We here at Abnormal Use are keeping our fingers crossed for best new legal blog next time!). Until then, though, at our Twitter page, we have created a public list of links to the Twitter accounts of all those so honored (at least all those with Twitter accounts). If you’re a Twitter user, you can follow that list here and see the original ABA Journal article here.

Self promotion mode on. Here in South Carolina, lawyers are now nearing the end of their CLE compliance year. Accordingly, one of our blog’s contributors – as well as another lawyer from our firm – will be making presentations to next week’s Greenville County Bar Association End of Year CLE. Senior associate and blog contributor Jim Dedman will be speaking about “Cybersleuthing 101,” a topic about which we can assure you he knows much. Shareholder Stuart Mauney will also be making a presentation entitled “The Lawyer’s Epidemic: Suicide, Depression, and Substance Abuse.” Mauney was recently appointed to chair the South Carolina Bar’s H.E.L.P. Task Force (Health and Education for Legal Professionals). You can learn more about the event, which takes place a week from today, on Friday, February 12, in this month’s Greenville Bar News [PDF].

Today, Abnormal Use inaugurates a new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the first installment, we turn to friend of the blog and law professor Rory Ryan, currently a member of the faculty at Baylor Law School in Waco, Texas. He teaches courses in Federal Courts, Civil Procedure, Appellate Procedure, and Constitutional Law. Professor Ryan was kind enough to answer the following questions (and even provide his own external links embedded into his responses). The interview is as follows:

1. What should attorneys practicing in federal court be aware of as we enter 2010?

Three things:

(1) True notice pleading, as it seemingly existed a few years ago is dead. Become an expert in how your jurisdiction has interpreted the Twombly/Iqbal pleading standard, which is sometimes described as “Plausibility Pleading.”

(2) The Federal Rules have been “Restyled,” so pay attention to the new words (which aren’t supposed to have a different meaning);

(3) Major jurisdiction and venue legislation is pending. The Federal Courts Jurisdiction and Venue Clarification Act of 2009 is too varied and nuanced to even highlight in this space, so I’ve attached the Section-by-Section Analysis from the Office of Legislative Affairs and the Administrative Office of the U.S. Courts.

2. What is the most significant federal appellate court opinion to come out in the last year?

Ashcroft v. Iqbal from the Supreme Court, which solidifies that Twombly really did change the law. It has caused quite a stir both in the academy and among practitioners. And even for those who practice primarily in state court, it will be of interest to observe how many states follow the Supreme Court’s new rule. (I would call it an interpretation, but I just can’t bring myself to do it. The Court changed the law, and basically did so in a way that made the forms in the FRCPs fail the test set out by the rules. There’s a process for amending the Civil Rules—and that process involves Congress.)

3. What was the biggest surprise from the last U.S. Supreme Court term?

Citizens United, which was decided this term (in a mere 183 pages) but was carried over from last term. Maybe President Obama and Justice Alito need a beer summit to discuss the decision.

4. What advice would you offer to lawyers practicing in the area of products liability?

Read the following blogs: Drug and Device Law, Mass Tort Litigation Blog, and of course, Abnormal Use (this is where you add this blog to your RSS reader, (or learn what an RSS reader is and then add it.)) Also, learn everything you can about an important forum-selection tool you probably ignored in law school—fraudulent joinder.

BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.

• “[W]hile the Beastie Boys might disagree, the First Amendment does not imply a ‘right to party’ dissociated from expression.” URI Student Senate v. Town of Narragansett, — F. Supp. 2d —-, No. 08-207, 2010 WL 222587, at *6 n.4 (D.R.I. Jan. 22, 2010) (internal link obviously added) (Link courtesy of The Volokh Conspiracy). Nice, but can it compete with the 1987 Fifth Circuit Talking Heads opinion? We here think not.
• The Cal Biz Lit blog offers its analysis of some recent uses of California’s Proposition 65, which empowers private plaintiffs to sue certain companies who are allegedly exposing persons to “chemicals known to the State of California to cause cancer” or “chemicals known to the State of California to cause reproductive or developmental harm” without a “clear and reasonable warning.” The blog notes how this provision was recently used to extract settlements from manufacturers of purses made of vinyl and leather, which sometimes contain lead.
• The VLW Blog reports on the very recent Sutton v. Roth, L.L.C., No. 08-1914, 2010 WL 235143 (4th Cir. Jan 21, 2010) (unpublished), a ruling the TortsProf Blog is calling a “sequel to the McDonald’s coffee case.” Apparently, the Plaintiff alleged that when he bit into his sandwich, “the grease from the inside of the chicken sandwich spread out all over [his] bottom lip, [his] top lip, down onto [his] chin.” According to The VLW Blog, the Plaintiff sued McDonald’s and its franchisee for $2 million, but a federal district judge granted summary judgment for McDonald’s and judgment as a matter of law for the franchisee, who had to face a brief trial on the merits. (Perhaps the franchisee didn’t earn summary judgment because one of its employees remarked that “[t]his is what happens to the sandwiches when they aren’t drained completely.”). The district court did, however, grant the franchisee’s motion in limine to exclude that statement, which became one of the Plaintiff’s appellate points. Last week, the Fourth Circuit reversed both orders and remanded the case back to trial. (The opinion is here [PDF]).
• This week, Brian A. Comer at the South Carolina Products Liability Blog began the first in a series of posts on South Carolina warning law.
• The South Carolina Bar has made available online the full report of its Young Lawyers Division Social Media Task Force. Initially submitted to the Bar’s Board of Governors in November of 2009, the report was presented to the Board at last week’s South Carolina Bar state convention by our own Jim Dedman, who chaired the task force. Included in the report are recommendations on how the State Bar can use social media to better communicate with its members. You can see the full report here (PDF).