Ear Candler Presents Issue of Fact

“Your Honor, don’t let stupidity create an issue of fact.”

Surely, someone, somewhere has uttered this sentence. Perhaps counsel for one of the defendants in Danaher v. Wild Oats Markets, Inc., No. 08-22930-DJW, 2011 WL 903878 (D. Kan. March 14, 2011). In a case with multiple defendants, Wild Oats Markets could not reach summary judgment on the plaintiff’s products liability claims related to ear candling. I have to admit that I was gainfully employed in the early 2000s and had not heard of the ear candling fad. Prior to reading the remainder of the post, I would recommend that you visit the Wikipedia page on ear candling, which contains such unintentionally humorous sentences as “According to medical researchers, [ear candling] is both dangerous and ineffective.”

The immediate takeaway from the case is that retailers should honestly consider whether carrying certain products is worth the risk of litigation. The basic facts of the case are as follows: Plaintiff buys an ear candle at Wild Oats in 2003. For some reason, by 2006, she still possesses the ear candle and decides that she would like to use it. She calls Wild Oats for a recommendation of an ear candler, they refer her to another store, and she eventually finds a person to perform the ear candling procedure, during which, Plaintiff inexplicably suffers a burn to her ear drum, when wax from the candle rolls into her ear. Although the manufacturer promulgated warnings about ear candles in the packaging, Plaintiff did not remember any warnings. Without reciting the entirety of the case, Plaintiff was able to survive a motion for summary judgment on warning defect and breach of implied warranty.

We may be somewhat defendant-friendly here at the blog, so let me offer potential defendants some advice. Do not sell devices designed to combust in the middle ear. It is not worth the $2 you will generate in revenue. Sell something else. In all seriousness, this product is at the very least some homeopathic harmlessness, but there should be some thought (foreseeable use) about the economics of the business. Is it reasonable to anticipate someone being injured from using the product in a reasonable way? If so, how much money can you make, taking into account the likely cost of insurance/litigation? It’s hard for me to believe that the manufacturer/distributor/retailer of the candle sat down with a lawyer at the inception of the business and the selling of this absurdity was determined to be an economically rational choice. But lawyers are good at telling entrepreneurs why things won’t work, and, if all entrepreneurs listened, we would not have such grand creations as the ear candle, Ford Pinto, or the Hindenburg. Today’s lesson is to examine the inventory that you sell for $10 or less. It might not be worth it.

Soda: The New Carcinogen?

“Every absurdity has a champion to defend it.” – Oliver Goldsmith. Here’s another thought: Drinking a soda is just as detrimental to your health as smoking an entire pack of cigarettes. Now, we here at Abnormal Use don’t have any proof for that last statement, but we’re sure you’ll soon see the campaign about the evils of “caramel color.” According to the Center for Science in the Public Interest, the caramel coloring in popular colas contains carcinogens.

The culprit it seems, is 4-Methylimidazole, an innocent-sounding substance, don’t you think? Do not be fooled. The Executive Director of CSPI, Michael Jacobson, has taken to the Huffington Post, where all great news stories are faithfully told, to spread the word that cola contains cancer causing agents. California has added 4-Methylimidazole to its Proposition 65 list [PDF]. 4-Meth has caused various types of cancers in lab rats. CSPI has even gone so far to warn us of this danger by concocting a Toxi-Cola graphic, showing all of the terrible things in the product.

Let us first say that we do not trust the public interest. We look after our own interest, and, as rational people all look after their individual interests, order and efficiency are maintained. Second, while we do occasionally wear tin foil hats, we have to believe that, if cola really caused cancer, we as a society would have figured it out before now. Such is the opinion of the author of the appropriately named CSPIscam website. Ben Forer of ABC News filed this report quoting one Dr. Fred Guengerich, a biochemist, who appears to be a very smart dude:

“Is it a carcinogen? The tests have shown in mice it can increase the risk of cancer. On the other hand, there is also evidence in male rats, it prevented several kinds of cancer,” said Guengerich. “Basically my advice would be just to relax . . . I did some simple math. … If you look at the study in terms of what the mice got, in terms of causing any effect, a human being would have to drink more than 1,000 sodas a day.”

We don’t know of any associate that drinks 1,000 sodas a day, but this has all the makings of a nice lawsuit. A Plaintiff sues and claims that caffeine addicted him to cola and that he drank hundreds of colas per day, ingesting tons of carcinogens and high fructose corn syrup. Hey, that’s not his fault, purports his attorney. Someone should have told him that its perilous to drink hundreds of colas per day. How else was he to know, after all?

We think the best option is a class action settlement where the settlement includes a lifetime supply of cola. Perhaps this is an advertising gambit of Pepsi to bring back the long lost product Crystal Pepsi, which we know we have all spent the past 18 years pining for. Nevertheless, be on the lookout for junk science, and take pride in your caramel-colored beverage.

Booze Cruise

You may remember our very recent Dennis Kucinich olive pit lawsuit post in which we intimated, unlike some defense counsel, that some lawsuits may actually have merit. Today, we return to the bounds of legal ridiculousness to discuss injury by chair, specifically on a booze cruise (technically a dinner cruise, but come on!). In Tillson v. Odyssey Cruises a/ka Premier Yachts, Inc., No. 08-10997-DPW, 2011 WL 309660 (D. Mass. Jan. 27, 2011), the Court tells it best:

On June 15, 2007, [Plaintiff] and his wife boarded the M/V ODYSSEY, owned and operated by Premier Yachts, at Rowes Wharf in Boston to attend a cruise dinner. Tillson sat down on a chair at his table for the first time at 7:30 p.m. During the three-hour dinner, [Plaintiff] left his table on three occasions. Upon his return to the table at 10:45 p.m., [Plaintiff] attempted to sit on the chair he had been occupying throughout the evening. At that time the chair’s left rear leg “gave way or broke.” As the chair was settling to the left and rear, [Plaintiff] slipped to his left, while remaining seated, and eventually landed on the floor.

The Court’s description of the event enables us to imagine the event in slow motion. It seems like it did occur in slow motion, as gravity acted on the Plaintiff’s body in a such a way that the best way to describe its coming to rest was through the word “eventually.” We”ve seen many falls in our day, but we were fairly certain that gravity acted on all objects equally. The Plaintiff’s body has some sort of air buoyancy. The court recited additional facts as follows:

After walking off the vessel, [Plaintiff] and his wife boarded a water taxi and then walked for about a quarter mile to their hotel. [Plaintiff] contends that the collapse of the chair caused him to endure back and leg pain, headaches, as well as episodic urinary incontinence.

Far be it from us to suggest that anyone ever fell down on a booze cruise, from a seated position, no less. Odyssey had the unfortunate circumstance of having a chair that “failed due to a cracked weld on its left rear leg.” Also, far be it from us to suggest that anyone would lose control of their bladder on a booze cruise. We will point out that episodic is not defined, and perhaps is limited to episodes where the Plaintiff participates in a booze cruise.

The Plaintiff was so confident in his liability case that he moved for summary judgment. He lost, of course, based on the court’s finding that the evidence of whether Odyssey had notice of the particular dangerous condition at issue presented a question of fact. But, if you plan to allege urinary incontinence from a fall during which you were partially supported by a deck chair, then you must be pretty confident about your case.

So what did we learn? The Plaintiff should have stayed on the deck and demanded a water ambulance. Nothing smacks of a made up lawsuit more than an injury, walking around as if nothing had happened, and then having back pain after the fact. Second, there will soon be a generation of plaintiffs who will demand a water ambulance. You see, with so many law graduates being unemployed, there will be a class of plaintiff who will immediately install a litigation plan, know what to do immediately upon injury, and have a mountain of student loan debt to pay off. Perhaps cases like this, where a plaintiff sues after walking away from the injury, will become less frequent.

It’s Cheese and a Lawsuit Against The Mouse

The Mouse takes great umbrage that someone would complain of the cheese he graciously bestows upon us. The Mouse takes great pride in his cheese. But as you can see here, here, here, and here, multiple news outlets and blogs have picked up the story of a recent lawsuit filed against Disney for the ancient tort of injury by Nacho. Unfortunately, this case features a real injury. Four-year-old Isaiah Harris became hurt when he found himself about to fall (from an unsteady chair, of course), grabbed a tray of food for balance, and suffered an encounter with a “paper cup of scalding nacho cheese.” Of course, like all hot food and beverage proceedings, this lawsuit conjures up the spirit of Stella Liebeck, her hot coffee lawsuit, and its progeny that have been well chronicled. So in light of all of that, what is the real significance of this lawsuit?

First, it’s amazing to see the public reaction to these lawsuits. Scroll down through the comments to the news stories and blogs to see thoughts from those who have absolutely no sympathy for the child and blame everything on the parents. The commenting public now automatically equates a hot food lawsuit with frivolity, which, lawyers who followed the Liebeck case know is not always the case. Ms. Liebeck probably did very well for herself, settling her case on appeal after receiving a substantial jury verdict. Nevertheless, some part of the public thinks that hot food lawsuits are frivolous and remain unafraid to air their personal grievances. Whether this is attributable to a vague conception of a litigation tax on products, or some other archaic conception of pure contributory negligence, would be a fairly boring subject for a sociology paper.

Second, not that the lawyer would need this, but it is interesting that the public can issue spot in such cases. Scroll through the comments and see the number of people that remark upon the picture of Isaiah, the probability that a paper cup of cheese would land precisely on his mouth (where it looks like he tried to drink the cheese), and posit their own version of the facts. Website comments now double as free jury research. My own personal issue-spot: Why didn’t anyone handling this paper cup of cheese notice the purported temperature?

Third, and getting to the legal matters at hand, it’s not clear to me what the reasonable expectation of the consumer would be in a case involving nacho cheese. It’s not at all clear to me that the subject nacho topping was actually cheese. Does a consumer have a reasonable expectation that his or her nacho topping is actually cheese? It would be perfectly appropriate for the plaintiff’s parents to argue that they assumed that the topping was an unnaturally viscous liquid-at-room-temperature cheese-like substance. If it was cheese, then we will likely need to look for a cheese expert from the American Cheese Society and perhaps attend the Sonoma Valley Opportunities and Challenges Cheese Conference for further education on a consumer’s reasonable expectation of cheese temperature. There is no doubt that this lawsuit will appear on the conference agenda as the public fallout from injury by cheese is a serious topic to consider.

Fourth, while we often call out plaintiffs’ lawyers on the blog, the plaintiff’s attorney in this case, one Sean Cahill, seems to be a legitimate defense lawyer, who belongs to several defense-oriented organizations, at least according to his website. Perhaps Mr. Cahill is simply trying to beef up his cheese liability practice. Who knows? We’ll see if The Mouse pays something on this suit. Anyway, next time you go to Disney World, test the nachos.

Disclaiming Physician Patient Relationship Leads to Fraudulent Joinder in Texas

The plaintiffs’ bar rallies around the cry that they are the only ones fighting for justice. Evil insurance companies further victimize already injured parties, blah, blah, blah. It’s unfortunate that so many plaintiffs’ lawyers seem unwilling or incapable of acknowledging that their lawsuits are involuntary transactions and legal strategies are, for the most part, economic choices.

Take for example, McCall v. Genentech, No. 3:10-CV-1747-B, 2011 WL 111440 (N.D. Tex. Jan. 12, 2011). In that suit, the Plaintiff claimed she was injured by the prescription drug Raptiva. In attempting to treat her psoriasis, she purportedly took the drug and then spent 25 days in a hospital and experienced continuing injuries. She filed a lawsuit in Texas state court naming Genentech (not Initech) and XOMA, who aided in the manufacture of Raptiva, as well as her physician, who prescribed the drug (who happened to be a clinical researcher of Raptiva), and two entities for which her physician worked. The latter three defendants were non-manufacturing defendants who just happened to be nondiverse from the Plaintiff. Accordingly, the defendants removed the suit to federal court, alleging improper joinder, and the Plaintiff predictably responded with her own motion to remand the case back to state court.

Perhaps the suit was originally filed in state court, rather than federal, because there is no mandatory scheduling order, no early disclosure of experts (meaning less upfront costs in expert reports), and all those things that can make litigation expensive. However, the Plaintiff has a problem because Texas has a limitation on damages as well as some mandatory expert disclosures in medical malpractice actions that make litigating in state court a lot like litigating in federal court. Since the plaintiff’s attorney’s job is (apparently) to maximize the return on an investment, the Plaintiff’s lawyer decided to disclaim any causes of action based on the physician-patient relationship in the original state court petition. Thus, the Plaintiff could still hope to squeeze some settlement value out of the case without costly expert discovery.

The strategy failed. By disclaiming the physician-patient relationship, the Plaintiff had no relationship on which to base a cause of action against the non-manufacturing defendants because a clinical researcher owes no duty to the public. Without viable causes of action against those defendants, the Plaintiff lost on the motion to remand and remained in federal court.

We’re glad that the federal rules monetize “justice” in the way that they do. Plaintiffs and their lawyers should bear some meaningful cost of the litigation up front as a means of speeding the litigation towards its end. There’s nothing wrong with trying to level the playing field as far as fees and costs go, as there should be economic pressures on both sides to resolve cases. Shouldn’t all sides be able to say that the Plaintiff’s case should be resolved quickly so that she can move forward with her life? Too many times, cases languish because there is no pressure to move the case forward. Whatever the case, it’s always nice for defense counsel to prevail because an opponent cannot or did not properly strategize.

False Name Results in Dismissal of Complaint

Shakespeare may argue otherwise, but a person’s name carries great legal weight, and the prosecution of a civil claim under a false name may result in the dismissal of the claim with prejudice. In Santiago v. E.W. Bliss Co., — N.E.2d —, Nos. 1-10-0796, 1-10-0780, 2010 WL 5292919 (Ill. Ct. App. Dec. 21, 2010) [PDF], the Appellate Court of Illinois decided a certified question and set forth the facts of the case as follows:

On May 12, 2006, plaintiff was injured while working with a punch press. Components of the machine were manufactured by defendants, and on May 9, 2008, plaintiff filed a product-liability complaint against defendants in the circuit court of Cook County. The initial complaint identified plaintiff as “Juan Ortiz,” and it did not indicate whether he had ever been known by any other name. Plaintiff filed his first amended complaint on November 4, 2008, naming additional defendants that had been identified during discovery. The first amended complaint also named “Juan Ortiz” as the sole plaintiff.

During written discovery, plaintiff received at least three sets of interrogatories from various defendants. Among other information, each set of interrogatories asked plaintiff to disclose personal identification information, including his name, work history, and social security number. Plaintiff answered the interrogatories on February 25, 2009, identifying himself as “Juan Ortiz.” As required by section 1-109 of the Code of Civil Procedure . . . plaintiff signed and verified each interrogatory with the signature “Juan Ortiz.”

Defendants deposed plaintiff on May 19, 2009. When defendants asked plaintiff to state his full name, however, plaintiff responded that his name was Rogasciano Santiago, not Juan Ortiz. This was the first time during the course of litigation that plaintiff had used this name, and defendants had not previously been aware that plaintiff’s true name was not Juan Ortiz. The record does not disclose whether plaintiff’s attorney was aware of plaintiff’s true name.

Mr. Santiago/Ortiz moved for leave to amend the complaint to substitute his real name. The circuit court granted leave, after the statute of limitations had run on the products claim, and then the court asked for assistance in determining the effect of the amendment on the substantive claim given the facts and the defendants’ motion to dismiss the amended complaint. First, the appellate court ruled that dismissal of the complaint with prejudice is not a mandatory sanction, but it may be an appropriate sanction given the facts of the case. Second, the appellate court held that an amendment to substitute the real name of the plaintiff made after the statute of limitations has run bars the claim because the amended complaint cannot relate back to the original filing. The appellate court then instructed the circuit court to take actions consistent with its opinion.

There are several points for discussion, probably worthy of multiple posts, but here are just a few. First, this may create a certain conundrum for the plaintiffs’ bar. It’s unclear whether there was any willful blindness here, but when a lawyer decides to take on a case of a person who may or may not be properly documented, discovery certainly includes some risks that may have ramifications outside of the lawsuit. I am sure, though, that this would have been a great deposition to take or attend. Not often does the deposition go south right after “Can you please state your full name for the record?”

Next, this case shows that defense counsel should always ask the routine, mundane questions because the answers may let you out of a lawsuit. In addition, the timing of the filing of the complaint and subsequent discovery can certainly impact the merits of the case. Finally, the court shows that it is not going to allow the judicial system to be tampered with. There is a certain calculus in play in this case. Perhaps this was a case where the plaintiff’s goal was to settle prior to deposition. In any event, although a person who may or may not be properly documented has access to the court system, extrajudicial issues certainly play a part in the decision to bring what may otherwise be a meritorious case.

Our Take on the Olive and Kucinich

Before writing this post, I’ve made myself a sandwich, free of foreign material and animal products, with a short stack of lettuce, and which leans to the left. Of course I have named this creation the Dennis Kucinisandwich. I wish that Rep. Kucinich had been more courteous to me, as I did not have a chance to opine on his lawsuit before he went and settled it. Nevertheless, the economy still seems pretty bad in Cleveland, so I can’t fault him for taking the money.

I am talking about the olive pit case, of course, recently filed and settled by Rep. Kucinich from Ohio. Multiple news sites and blogs have lambasted Rep. Kucinich for his suit that claimed serious and personal dental injury. Rep. Kucinich even posted this release on his website, revealing some personal details about the effects of biting into an olive pit. Questions abound about Rep. Kucinich’s reasonable expectations of what comes in a sandwich wrap, especially being a long-time vegan, and, presumably knowing that olives naturally have pits. And before we engage in some deeper thoughts on the issue, we would invite you to comment with 2012 Presidential campaign slogans for Rep. Kucinich. Here are a few to get you started.

1) Olive (pronounced in a Southern Drawl “I – love”) Dennis
2) Vote Dennis. All others are pit-iable.
3) Kucinich – Building bridges (in my mouth)
4) I’m like you. I sue.

For some reason, people have a problem with the thought behind number 4, i.e, Rep. Kucinich exercising his right of access to the courts. Surely members of Congress have lots of resources and tremendous insurance, and Rep. Kucinich should have just taken care of this himself. Why? Putting aside our conservative, defense-oriented tint for a moment, why should he do that? Rep. Kucinich was injured by the fault of another and had a potential claim. Why shouldn’t he sue? The thought seems to be that a “rich” person should not litigate matters. (Not Mitt Romney rich, of course, but certainly Cleveland rich.) It’s not really clear that Rep. Kucinich was in a better place to bear the loss. After all, that is what insurance is for, to spread the cost of risk, and the cafeteria was surely insured.

I am at a loss as to why a litigious public would aggrieve Rep. Kucinich over doing what most other Americans would do. Rep. Kucinich represents a precinct in Ohio, where, I’m sure, people file lawsuits over personal injury. My take is that the perceived “outrage” over this “frivolous” lawsuit stems from the institutionalization of what a lawsuit is now. It is no longer a means to monetize losses or allocate damages to an injured party. Lawsuits are a means to gain power and money (with or without injury). Rep. Kucinich, being perceived as rich and powerful, is somewhat mocked for filing a lawsuit that, on the surface, seems to have some merit. He has no need to file a lawsuit, because he is already rich and powerful. Apparently, potential claims are no longer enough. There is in implicit requirement that personal injury lawsuits are now a means to riches rather than a means to restore loss.

Shame on you, Rep. Kucinich, for having a real injury.

New Jersey Sodium Lawsuit Dismissal Affirmed Yesterday

We’ve blogged in the past about the necessity of an actual injury to maintain a lawsuit, and just yesterday, the New Jersey Appellate Division again reminded us that there must be some damage sustained before the law will permit recovery. In DeBenedetto v. Denny’s, Inc., No. A-4135-09T1, 2011 WL 67258 (N.J. App. Div. Jan. 11, 2011) [PDF], the Plaintiff sued Denny’s under the state Consumer Fraud Act [CFA], alleging that the restaurant chain failed to disclose the high sodium content in his typical breakfast of ham, bacon, sausage, and hash browns. Although the Plaintiff framed the action under the CFA (ostensibly because neither he nor his purported class had any injury), the court affirmed a dismissal and stated that crux of the claim was products liability, and, therefore, there must be some injury alleged.

Avid readers our site might predict that we will spend the next few paragraphs poking fun at the Plaintiff’s attorney’s inability to properly frame the cause of action or to understand what the word “damage” really means. But today we take a different tack and offer some litigation planning tips to our friends in the plaintiff’s bar. It’s no secret that excess sodium in the diet is bad for you [PDF]. But like a lot of other ingredients, sodium has some benefits, like extending the shelf-life of food. However, sodium may head the way of the trans fat, as there is an increasing awareness and governmental pressure to force reduction of sodium in food.

DeBenedetto may merely have been a test case to see how the courts would react to such claims. Perhaps the courts would not have been so quick to dismiss the case if the evils of excess sodium had gotten some more media attention over the past ten years. Sodium can cause problems with blood pressure and kidney function, but because causation of high blood pressure is multifactorial, causation may be difficult to prove, even given an injury. Maybe a few years from now, in a different state, a consumer fraud action might be more tolerable. Or maybe there is some political aspiration. Perhaps Mr. Wolf, the Plaintiff’s attorney, sees himself as a future sodium czar, helping to craft some FDA regulations. There’s nothing like being in front of an issue to add credibility to a position.

Nevertheless, it would not surprise me if excess dietary sodium quickly became a mainline issue, and whether it means a future tort suit or some other kind of remuneration, I am hard-pressed to believe that this New Jersey suit doesn’t fit in to some other larger litigation plan.

Abnormal Interviews: Actor Phil Morris a/k/a Jackie Chiles from "Seinfeld"

We can hardly believe it ourselves. But we here at Abnormal Use scored an interview with the actor, Phil Morris, who most know as Jackie Chiles, the bombastic, flamboyant, and opportunistic trial lawyer from “Seinfeld.” So, today, Abnormal Use continues its series, “Abnormal Interviews,” which now includes actors, as well as law professors, practitioners, and other commentators in the field. Though the character only appeared in six episodes of the series (including the 1998 finale), Chiles resonated with viewers. Recently, Morris reprised the role for a series of videos posted on the Funny or Die website (two of which have been posted already with three more on the way in the coming weeks). Less than a week ago, Morris was kind enough to submit to a telephone interview with our own Kevin Couch. In the interview, Morris discusses not just his role as Chiles, but also his upcoming projects, his love of superhero comic books, and his past work and influences. Although you may be able to quote many lines of Jackie Chiles “Seinfeld” dialogue, you probably didn’t know that Morris has studied kung fu, collected 20,000 comic books in his life time, and expressed an interest in one day playing the Silver Surfer on screen. His new sitcom, “Love That Girl!,” premieres in January. Our favorite part: Though his signature character is associated with litigiousness, Morris himself is actually skeptical of the modern litigation culture, going so far as to call it “beyond the pale.”

The interview transcript is as follows:


KEVIN COUCH: [I]t’s been 12 years since the finale of “Seinfeld,” and you have revived the Jackie Chiles character recently. Can you tell me about that?

PHIL MORRIS: Well, you know, Jackie had a life of his own even during the run of “Seinfeld.” You know, I had done a couple of commercials for Honda and Diet Dr. Pepper. He was one of the few characters, actually maybe the only character, that Larry [David] and Jerry [Seinfeld] would allow to do his own thing outside of the “Seinfeld” universe. So, you know, I mean, I just never really tired of him. I don’t think the public did, and we never got a chance to do a show that was – we had in development, and it was always just kind of percolating beneath my skin, and when the “Curb Your Enthusiasm” shows came out last season with the “Seinfeld” reunion kind of run, or arc, everybody was asking me about Jackie. I mean, you know, it was like Jackie had come back, and Jackie wasn’t even in it. So, I sat down with a friend of mine who’s a pretty high powered agent here in town, and he was asking me about Jackie. You know, we loved this reunion stuff, and we finally had something to talk about at the water cooler again, and you know, the only thing missing is Jackie. Where’s Jackie? I was like, “You know, man, Jackie, that ship has sailed, and blah, blah, blah.” He goes, “Oh, no, it has not sailed. We want that guy back.” And he gave me the idea to kind of put it on the web and, you know, test the waters, see if people were interested. You know, Kevin, I work a lot. I do a lot of shows. I do a lot of stuff. I’m on “Smallville” on the occasion. I’m doing a new show called “Love That Girl!” for TV One. So, it’s not like I was sitting around waiting on stuff to do.

COUCH: Right.

MORRIS: It’s like, this came to me, and as an actor, rarely do you get a character that you feel so committed to and it speaks to you so fully as a Jackie Chiles. So I was like, “Why not?” Let me give it a shot. You know, so, I wrote a couple of these interstitial commercial kind of things. You know, Jackie’s back, and he’s wanting new clients kind of deal. And, a buddy of mine and I who are writing it, he told Funny or Die that we were doing this. And we hadn’t even started. And they came right at us. They were like, “We’ll produce it, we’ll distribute them, we love this guy, he’s perfect for us!” So I wrote these five with Whit’s help, Whit Hertford’s help, and went to Castle Rock and cleared their legal. It took about two months. And the result is kind of, you know, what you see. They’re parceling out one episode or one segment every few weeks and judging the public’s interest. And so far, the public is very interested.

COUCH: [W]ould you be interested in pursuing the Jackie Chiles character further? I mean, it sounds like you’ve got some good feedback from Funny or Die, and from the public on Funny or Die, would that be something you’re interested in pursuing in the future?

MORRIS: Of course, of course. Like I said, it’s rare for an actor to have characters that you so firmly connect to. Now, I don’t really relate to Jackie personally, but as an actor, I get it completely. So, I find that it’s refreshing for me to try to fit into that skin all the time, and like I said, I have barely scratched the surface of Jackie Chiles, so it’d be great to be able to pursue this path, you know, the computer screen and maybe into a television series, or I don’t even know what’s next for him, but I really don’t think there’s a limit.

COUCH: [H]ow much of you is in Jackie? Is he a completely foreign character, or is there some part of you that can identify with who Jackie is?

MORRIS: Well, I’m sure you have people in your family or people that you know that you can imitate or you can represent because they’re such great characters, but they’re not – it’s not really you, but you know them so well, you know, and I think Jackie is a combination of many men that I have grown up with and seen, from my father to my great uncle, Uncle Phil, my namesake, that just remind me of this kind of force of nature that is Jackie Chiles. You know, of course, Johnnie Cochran is in there as well. He was the template. For my purposes as an actor, Jackie is a hustler, he’s a pimp, he’s a preacher, and he’s an attorney. So, do I relate to all those things? I relate to them. Are they Phil Morris? No, not all of them.

COUCH: Did you have a chance to meet Johnnie Cochran?

MORRIS: I did, actually. Interestingly enough, we went to the same barber shop for years and years and years here in Los Angeles. So, I would see him as a kid come in and pontificate on everything from the Raiders moving to L.A. to any of the number of egregious acts of civil unrest. So I think I was doing some subconscious study on him for a long, long time.

COUCH: [B]ut you never had a chance to discuss the Chiles character with him?

MORRIS: Yeah, I did. And he loved it. I mean, I think he thought it was very flattering – at first.

COUCH: At first. Understood. Of course, one of the story lines from “Seinfeld” was, I guess, Kramer’s burns from the hot coffee. Do you have any feeling about that? What about people filing these lawsuits for burning themselves on hot coffee?

MORRIS: Well, we’re so litigious in this society, too much. It’s way beyond the pale. So that’s where I kinda jump off from Jackie. I certainly wouldn’t put stock in a lot of that stuff. I think, it’s just, we’ve gotten away with way too much here in the United States in terms of the legal ramifications of everything. I think, again like I said, beyond the pale. Jackie is an opportunist. So anything like that is manna for him. But personally, I think we’re really hurting ourselves and shooting ourselves in the foot. Not only are we giving our legal system a bad name, but we’re abusing it! We’re misusing those bits of legal power that we have – we’re fortunate enough to have in this country. It kind of drives me crazy.

COUCH: Have you ever had any lawyers come up to you and talk about Jackie Chiles?

MORRIS: All the time.

COUCH: What’s common in what they talk to you about?

MORRIS: Most of them – all of them, to me, are very positive. In fact, there is a Jackie Chiles Law Society at the University of Utah. I bet you didn’t know that!

COUCH: I did not go to the University of Utah, or I assure you, I would have been a member.

MORRIS: Is that crazy? So, anyway, their club, their society is about the public’s perception of law as the media represents it. And it’s very interesting, a very interesting phenomenon. But, yeah, most of the lawyers that come up to me are very supportive. They get the joke! You know what I’m saying? And I think people need to know that. As crazy as we think lawyers are and as crazy as the lawyers might actually be – on a whole, especially when it comes to Jackie – they get it! They’re like – man, this man is a lightning rod for all that’s good and all that’s bad.

COUCH: Anybody talk to you about not getting the joke?

MORRIS: No. Not one lawyer has gone – you know, “What the heck are you doing, I can’t understand why people even like this character!” Not one. Not one has come up to me with any sort of negative spin on this [character].

COUCH: It’s not the first time you’ve played a lawyer. I’ve got to ask you about Tyrone Jackson. I don’t know if anybody else will know who Tyrone Jackson is. But you played a character on “The Young and the Restless,” right?

MORRIS: You’re good, Kevin, you are good!

COUCH: Well, you know, I have the Internet to thank for that. . . . Is [there] anything from Tyrone that’s in the Jackie Chiles character?

MORRIS: Only his determination. That’s it. Tyrone actually was a very good natured, “Johnny Be Goode” kind of character, and Jackie certainly isn’t that. But what they have in common is their dogged determination to make sure the truth – as far as they see it – will out. That’s pretty much the only connection there.


COUCH: Like you mentioned earlier, you’ve done a lot of different work – voice work and animated features, Doc Saturday, Jonah Hex, work in the “Justice League.” . . . I guess you’re a fan of this genre of entertainment?

MORRIS: Yep, oh, yeah.

COUCH: What motivated that? . . . From what I can tell your sister [actress Iona Morris] has done some voice work and animation, as well.

MORRIS: She actually turned me on to voice over work early on. I was so busy with the on camera stuff. Voice over is not easy. It’s a very clique-ish insider type of circle that you get into. But, hey, I’m a comic book fan, man. I’m sitting here right now in my bedroom, and I’m looking at the 20,000 comic books I have in my library. 20,000!

COUCH: Wow. That is impressive.

MORRIS: I’ve collected since I was a child. So, all of that helps me as an actor. It helps my imagination. It helps my fantasy life. All that stuff. So, it’s a natural to kind of transition into voice-overs. I’m just a child. Man, I haven’t grown up.

COUCH: Are you a fan of anything in particular in the comic book genre?

MORRIS: Now, I’m a big fan of the writers. Before, I used to be a Marvel guy. When you’re a kid you kinda take allegiances with either Marvel or DC – those are the two big dogs. But there’s a lot of independent books out there, and a lot of writers and artists that – now that I’m in that world – that I’ve known and been fortunate enough to become friends with. I really like the writing. Obviously, it’s not kid stuff anymore. They’re dealing with some interesting themes in the comic book world.

COUCH: Well, you mentioned earlier you played a super hero on “Smallville.” Do you have a favorite superhero? If you could play one, who would it be?

MORRIS: It would be the Silver Surfer, actually, from the Fantastic Four comics. He was a very existential, philosophical being who kind of belonged to no world and no universe, and sometimes, I feel like that. [Laughs.]

COUCH: Well, I’m sure it wasn’t hard to play a super hero right after playing a lawyer, right?

MORRIS: [Laughs.] You know, perfect study. I’ll have to be honest with you.

COUCH: You would agree that lawyers are pretty much like super heroes?

MORRIS: No doubt, no doubt. You’ll get no argument from me, Kevin.


COUCH: You ever think about doing anything other than being an actor? Like, being something like a lawyer?

MORRIS: I was very interested in automotive design for a long, long time. When it got a bit too math intensive, I bounced out of that. You know, I think I sort of expanded my ability to create and express within this particular career choice. You know, Jackie, I wrote and produced, and obviously, am Jackie. Since then, I’ve produced something else that we want to turn into a feature film. So, I went from producing nothing in 30 years of acting to the last couple of months producing two very diverse and very extravagant products. I would really like to pursue that more – to produce and to write and use all of my skills as opposed to just the acting part of my tool kit.

COUCH: Is there anything you’re working on now as far as production or writing?

MORRIS: There’s a movie that we’re trying to put together called Surf Men, which is a historical piece about the turn of the century, actually 1880’s, Reconstruction lifesaving service back in the East Coast which is a precursor of the Coast Guard and the African American lifesaving crew that was a part of that service. It’s an incredible story, so my buddy Dennis Haysbert from “The Unit” and “24” and the Allstate commercials – he and I are producers on this project. And we’re very excited to get it out there and have people see what we’re really all about beyond our acting skills.


COUCH: Now, you’re a kung fu guy.


COUCH: How’d you get into that?

MORRIS: Well, my dad [Greg Morris] did the original “Mission Impossible” . . . years ago, back in the sixties. At first, they started to take karate lessons because they were doing some exotic hand-to-hand combat then – it really wasn’t seen. So, when my dad started, I started. In ’66, I was seven. So, I’ve been involved with the martial arts since I was seven years old. This particular master that I study with now, Hawkins Cheung, I’ve been with for a little over 20 years. I started with him here in Los Angeles, and he was Bruce Lee’s best friend back in Hong Kong. So, there was no better teacher I could find than him. And I was a huge Bruce Lee fan, so it just fell right in my lap. I’ve been with him for over 20 years.

COUCH: So if I were to anger you in some way during this interview, would you be more likely to file a lawsuit Jackie Chiles style or just put me in some kind of kung fu grip?

MORRIS: I think I’d just file a lawsuit. Jackie would come after me if I put hands on you. He would say, “You should know better.” And I should. I need to walk away. I’d rather come after you with humor. [Laughs.]

COUCH: Now, you talked about your dad, Greg Morris. You grew up in a household where he was an actor. Did you ever think to yourself, “He’s got a much cooler job than being a lawyer?”

MORRIS: Yeah, I think so. Yeah.


COUCH: . . . [W]ho else helped shape your career – who have you wanted to be as far as an actor and now maybe this production and writing?

MORRIS: A big influence – not as much personally, although I do know him personally, professionally, in terms of his legacy is Sidney Poitier. I remember when my father came up, he was one of the first African Americans to present an image on television that was palpable, acceptable, mainstream, strong, intelligent. It was a huge deal in the country, period, but especially in my community. And certainly one of the great idols and icons in my community, Sidney Poitier. And I had the fortune to meet him as a child and to see him come to our house, hear him speak, he was a good friend of my father’s. And every time I run into Sidney, he has great words of wisdom and is always checking on my well-being and my understanding of this business beyond just being an actor. So, he’s been a huge influence. The way he carries himself, his intelligence, his bearing. So two of the greatest – Sidney in film and my father in television – were two of the greatest influences a young African American actor could have. Those two. Bill Cosby, ironically enough. Another very good friend of my father’s who is such a solid individual. He’s a professor. He’s very much a family man. A staple of entertainment, black, white, indifferent, for years and years and years. In fact, decades. So he’s been a very close friend. Not so much personally [that] I call him up on the phone and say, “Hey, Bill, what do you think about this?” Just that when you grow up the way I grew up, the influences are everywhere. You’re fortunate, and you’re smart, if you take a page out of the people’s books who’ve been there before you. I’m hoping to find that and further that in my own creative career.


COUCH: . . . You have got a new sitcom coming. Tell me about that.

MORRIS: Yeah. Martin Lawrence is one of our producers, and Bentley Kyle Evans, who produced the “Martin” show and “The Jamie Foxx Show,” created a show called “Love That Girl!” starring Tatyana Ali from the “Fresh Prince.” It’s basically – Tatyana plays this young divorcee’ who moves back to Los Angeles and deals with her father. I play her dad. And deals with her brother, played by Alphonso McAuley and her crazy neighbors. It’s really a traditional four camera sitcom that is just funny and has great value and is not just good for my community but good for television overall, and TV One is a brand new network that has been out maybe five or six years and is being run by some of the most forward thinking African American executives I’ve ever worked with. We air in January. We have a 26 show initial order. So, I think the public will like that, as well.


COUCH: Do you have a favorite project that you’ve done? You’ve done a multitude, you know, “Star Trek” and all the other stuff that you’ve done. Can you point to a favorite? Is that hard to do?

MORRIS: It’s kind of hard to do because I’ve done so much and so different. I loved “The Young and The Restless.” I really did. We started talking about that a little bit. That was a great initial offering for, again, a young actor.

COUCH: I tried to look that up on YouTube. I did not find any Tyrone Jackson videos. I don’t know if there’s some legal reason for that. But if we can dig one of those up, we’ll put that up.

MORRIS: I don’t know where that would exist either. “The Young and The Restless” has been on forever. They’re a daily show, so the archives have got to be very convoluted, but “The Young and The Restless” was great. Certainly, “Seinfeld” was phenomenal. I did a television movie for Disney called “Tracks of Glory” about Marshall “Major” Taylor who was a world champion cyclist. That’s a project that not a lot of people saw, but again, very close to my heart and helped me a lot as a creative person. I did the new “Love Boat.” This was a weird one to pick up and talk about. The new “Love Boat” I did with Robert Urich and Joan Severance, and it was one of the most incredible times I’ve ever had. First of all, Robert Urich was a fabulous guy. He had had – he was post-operative cancer, he’s since passed away from cancer. But to know him was just a joy, and he just was a brilliant guy, and I got a chance to work with him. I worked with Peter Graves on the new “Mission Impossible,” which was phenomenal. Here, he was my Uncle Peter, I grew up with him and his kids, now we’re working together! It was just – I’ve had a great life, a great creative life, Kevin.


What Role Would Toxicogenomics Play in Causation

I’m sure research on the human genome will reveal some spectacular results, such as explaining why once a person reaches age 60, he feels compelled to buy bright, white tennis shoes, and to continue upping the brightness and whiteness as he ages, to the point where he will eventually wear shoes equipped with xenon headlamps. (As an aside, I wonder how the pioneers satisfied this primal urge.) Today, we give a hat tip and comment on this post by Christopher J. Robinette at the TortsProf blog discussing a word we had never heard before: toxicogenomics. Robinette cites this article from LegalNewsline discussing the advances in science and what “the study of the relationship among the cell’s genome, chemicals in the environment, and disease” could mean in the future of toxic tort. We don’t live in 1958 anymore, and we know that cigarette smoking and exposure to asbestos can cause lung disease. The question then, is, when we map an individual’s genome, how specific can we get with causation in relation to genetics and exposure to certain toxicants.

The LegalNewsline article focuses on the potential for toxicogenomics in causation, pointing to better evidence in linking exposure to disease. When science links exposure to disease, this should lead to an explosion in litigation. By the same token, science can lead to better evidence in defense of a toxicant-exposure case.

While all this remains to be seen, the impacts will not be felt merely in causation. Litigation outcomes inform future courses of action for people not parties to the action (or so we learned in torts class). Indeed, is it that hard to imagine that certain employers could require genome testing of their employees? After all, one central theme of products liability is imagining all the inane things that a potential plaintiff could do and defending design in a court. Isn’t a failure to warn claim really a “you should have protected me from myself” claim. Certainly you can see a plaintiff testifying in a case of occupational exposure that his employer should have protected him from his genetic predispositions. Employer-mandated pre-employment genetic testing would be a reasonable means of defense in a lawsuit, but there certainly would be some resistance to this cellular “love pat.”

I would hazard a guess that within ten years, we will see the first wave of pre-employment genome screening. Removal of asbestos from products and warnings on cigarette packs demand this. I’m just glad that, as a lawyer, I personally don’t have to worry about occupational exposure to anything but stress, but maybe the bar will start genome testing for pre-disposition toward substance abuse. Until then, products like Four Loko should be banned from the market. Right?