Wednesday, September 1, 2010

Sixth Circuit Allows State Law Negligence Claims

Last year, the Supreme Court decided Wyeth v. Levine [PDF], stating that Congress, through the FDCA, did not intend to preempt state law failure to warn claims. The Sixth Circuit extended Levine in Wimbush v. Wyeth, No.09-3380, 2010 WL 3256029 (6th Cir. Aug. 18, 2010) [PDF], and reasoned that a plaintiff could pursue negligence claims relating to a manufacturer’s decision to bring a drug to market, i.e., a pre-labeling, pre-approval claim.

Mary Buchanan, the Plaintiff’s decedent, developed primary pulmonary hypertension, allegedly caused by her ingestion of Redux, a weight-control drug pulled from the market in 1997. The pulmonary hypertension was the alleged cause of death. It’s unlikely, at least in Ohio, that there would be many more claims like the plaintiff’s. Ohio statutory law would now preempt any negligence claims based on products liability, but Buchanan filed her claim before the statute became effective. Therefore, Wimbush brings us into a strange scenario where, although the drug manufacturer can successfully defend the failure to warn claim, there are other state law claims that are not preempted and allowed by state tort law.

After explaining why the state law negligence claim would be allowed under state law, the Sixth Circuit reversed the district court’s grant of summary judgment in favor of Wyeth. The Court, leaning heavily on Levine, noted that Congress had never enacted an express preemption provision throughout the 70-year history of the FDCA. In light of the history of the scheme, there could be no preemption of state law claims, express or implied. Nevertheless, the Sixth Circuit acknowledged that its decision was breaking new ground:

Finally, we are aware of no federal appeals court decision since Levine concluding that FDA regulation preempts any aspect of state tort law, though we admit that, until today, there is also no post-Levine court of appeals authority for the proposition that the Levine rationale extends beyond the realm of failure-to-warn claims to apply to all pre-approval state law claims.

Wimbush may be used to open a door in other jurisdictions to allow other state law negligence claims in jurisdictions where the standards, statutes of limitations, or venire may be plaintiff-oriented. Look for plaintiffs’ attorneys to test the state law waters with inventive tort actions. I’m sure that there are all manner of pre-approval state law claims that are about to be manufactured.
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Wednesday, August 25, 2010

No Federal Jurisdiction Over Spoiled Food Case

Wouldn’t it be great to be incarcerated in the state prison system? I imagine that it would lend a great deal of structure to my day, and I could file my lawsuits for free. Perhaps some court would write about me in an opinion. Instead of identifying me by name, the court would simply start the opinion with “Plaintiff is incarcerated at Ironwood State Prison . . . .” Alas, Walter Brown, Jr. was so lucky, as shown in Brown v. Summerset, No. C 09-04764, 2010 WL 3154538 (N.D. Cal. Aug. 9, 2010).

Brown filed a products action based on the peanut products recall in 2009. Apparently, Summerset, the menu coordinator for the state prison system, also tried to punish Brown by providing him with “spoiled beef and textured vegetable protein tacos.” (This and other tidbits are available in the Complaint, which is Document 1 in the case easily found on PACER.) Although the complaint describes the injuries suffered, I’ll spare you most of the details, only to say that Plaintiff complained of an intestinal ailment that he described as “watery.”

Brown must have spent much of his time in prison studying law, as he stated claims for negligence, strict liability, warranty, and even intentional infliction of emotional distress. Brown did an excellent job pleading facts to get past Iqbal and Twombly. He alleged that the “Plaintiffs believed they would succumb to their sickness” and that the Peanut Corporation of America knowingly distributed tainted food. He also alleged damages of at least $35 million, ensuring that he would meet the amount in controversy requirement.

But woe to Brown, that in all of his legal study, the seminal case of Strawbridge v. Curtiss eluded him, and his suit was doomed from the start when he sued Ms. Summerset, a fellow California citizen, thereby destroying complete diversity among the parties. Judge Armstrong went the extra mile, even addressing whether federal question jurisdiction was available. Indeed it was not. Brown’s claim, being dismissed, may be re-filed in California state court, where it will be much harder for me to find and read his complaint on the internet. Good luck, Mr. Brown. May your next meal of beef and textured vegetable protein tacos be more appetizing.

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Wednesday, August 11, 2010

Products Liability Case Dismissed for No Injury

It’s been a tough year for Toyota. The automaker has built a strong reputation based on quality craftsmanship, but plaintiffs’ lawyers keep piling on, filing suits like the one described here, accusing Toyota of ignoring acceleration problems for years. So far, however, the allegations regard economic loss: “The revised lawsuit was filed in U.S. District Court in Southern California on behalf of nearly 40 consumers and businesses for claims of economic losses, including diminished vehicle values, stemming from complaints of Toyota cars racing out of control.”

Plaintiffs may be better off in California, because the District of Utah granted Toyota’s Motion to Dismiss in a similar case, Winzler v. Toyota Motor Sales USA, Inc., No. 1:10-CV-00003, 2010 WL 3064364 (D. Utah Aug. 3, 2010). In Utah at least, a plaintiff must suffer some kind of injury before recovering money from a defendant. Winzler brought an action based on her 2006 Toyota Corolla. Incredibly, “Ms. Winzler does not claim that she has suffered any problems with the engine in her car.” She alleged that she has been injured because she did operate the car, and such operation exposed her to increased risk of personal injury. Or, I could have been injured, thankfully I was not, please pay me some money anyway. One of the quotes attributed to Winston Churchill is “The greatest thrill a man can experience is to be shot at and missed.” For some reason, plaintiffs do not agree and instead ruminate on the misfortune of not having been injured. It’s a shame really. All of these uninjured people walking around thinking about what they’re life had been like had they been injured.

You might guess that the District of Utah dispensed with the case quickly. To the court’s credit, it reasons through the law, rather then simply saying something like, “Every first year law student knows that you need an injury to recover.” Instead the court reasons why the cases cited by the plaintiff in support for her argument, alleging constitutional violations, have a different analytical framework than your average products liability action. Neither may Winzler recover for her supposed economic damages. In short, the Court noted that a plaintiff must suffer an injury to recover under a products liability, negligence, or breach of warranty theory. Because Winzler did not allege that her car has shown any defect, her suit was dismissed.

Coming back to the California case, it should be interesting to see what the different sovereigns allow in the forms of product liability claims. I imagine the plaintiffs’ lawyers have this figured out, and a great deal of forum shopping has already or will take place. Hopefully Toyota can dispatch with these types of cases quickly and move to the cases where there may actually have been an injury.
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Tuesday, August 3, 2010

Obstacles Can Be Good: South Carolina Supreme Court Affirms Trial Court’s Grant of Summary Judgment on Preemption Grounds in Products Case

Obstacles can be good, especially when they represent preemption defenses against state products liability claims. As we reported yesterday, the South Carolina Supreme Court issued a decision that Federal Motor Vehicle Standard 205 preempts a state claim. Standard 205 deals with glass used in vehicles. The lawsuit sprung from an automobile accident in which an occupant of a Ford F-150 was thrown from the cab. The personal representative filed suit, alleging the Ford should have used glass that would not shatter and would “retain occupants inside the vehicle.” Ford argued that Regulation 205 permitted discretion in which glass to use, and, therefore, the state law claim was preempted.

The South Carolina Supreme Court affirmed the trial court’s order granting Ford summary judgment. The legal issue was whether Regulation 205 merely sets a minimum safety floor (no preemption) or permits the manufacturer a range of choice in the production of its vehicles (preemption). Regulation 205 begins as follows:

S1. Scope. This standard specifies requirements for glazing materials for use in motor vehicles and motor vehicle equipment.
S2.Purpose. The purpose of this standard is to reduce injuries resulting from impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility, and to minimize the possibility of occupants being thrown through the vehicle windows in collisions.

The court noted that Regulation 205 does not specify standards for which glass to use, but instead it references a safety code (ANS Z26) developed by the American National Standards Institute, a nonprofit entity. The code allows two different types of glass: 1) a tempered glass that shatters into dull pieces (safer for restrained occupants) and 2) a laminated glass that does not shatter (safer for unrestrained occupants by decreasing risk of ejection.

Important to the Court’s analysis was the National Highway Traffic Safety Administration’s withdrawal of a proposed rulemaking. The NHTSA contemplated authoring rules in the early 1990s requiring laminated glass to be used for side windows in vehicles. After studying the matter, the NHTSA withdrew its advanced notice of proposed rulemaking, and cited its study that the use of laminated glass increased the chances of injury to restrained occupants. See Notice of Withdrawal, 67 Fed. Reg. 41,365. The Court then examined three recent opinions from the Fifth Circuit, the West Virginia Supreme court, and the Tennessee Court of Appeals examining the potential preemption of Regulation 205. The state court opinions were driven by Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000), which found that Regulation 208 had preemptive effect. Following the state court decisions, it seems that the NHTSA’s withdrawal was the crucial factor:

In issuing the notice of withdrawal, NHTSA declined to modify Regulation 205 and require advanced glazing. Thus, the notice of withdrawal kept Regulation 205 intact, thereby preserving the manufacturer’s option to use tempered glass on side windows.

Because the federal government authorized that choice, Regulation 205 must preempt a state claim. Note, however, that the Court footnoted the Foreword to ANS Z26, which does not support a finding of preemption, but the Foreword “is not part of” ANS Z26.

The Fifth Circuit decision in O’Hara v. General Motors Corp., 508 F.3d 753 (2007) went the other way. O’Hara reasoned that the NHTSA’s notice of withdrawal did not operate as a rejection of laminate glass in side windows. Moreover, the language of Regulation 208 “strongly supports the conclusion that it expresses a federal policy,” while Regulation 205 did not. Therefore, Regulation 205 was best understood as a minimum safety standard, leaving states free to regulate via tort.

The South Carolina Supreme Court footnoted multiple cases in which courts have dealt with the preemptive effect of Regulation 205. Although it seems both sides have valid arguments, there is the underlying current of rewarding risky behavior in not finding preemption. That is, laminate glass can protect unrestrained occupants from being ejected from a vehicle. Does a court really want to reward a risk-taking plaintiff by denying a defendant the defense of preemption. O’Hara involved the claims of a minor, so perhaps she was a more sympathetic plaintiff. At any rate, be aware of the split of authority, and look for the United States Supreme Court to take a Regulation 205 case on certiorari.

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Monday, August 2, 2010

South Carolina Supreme Court Finds Products Liability Claim Preempted by Federal Motor Vehicle Standard 205

This morning, the South Carolina Supreme Court issued an opinion in Priester v. Ford Motor Co., Op. No. 26846 (S.C. August 2, 2010), in which it ruled that a state law products liability claim is preempted by Federal Motor Vehicle Standard 205 (49 C.F.R. § 571.205). After examining the current split of persuasive authority, the Court ruled that the regulation provides a “range of choices among” different types of glass that could be used in a vehicle, rather than a minimum safety standard. Thus, the Supreme Court affirmed the trial court, which had granted Ford’s motion for summary judgment on those grounds. We’ll write up a full analysis of this decision for tomorrow’s post.
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Thursday, July 29, 2010

Good job, Jury

There is an inherent conflict in the defense attorney. Generally, we understand that our role can be to dispose of litigation as cheaply as possible, whether or not the underlying claim has merit. However, when a case does go to trial, and the defense wins, there is a palpable sense of justice in the room. Many times it is the uncertainty of the jury trial that prods settlement. It behooves us all to remember what a fine device the jury is.

This is not to belittle Eleanor Madden, the septagenarian plaintiff who suffered injury when she fell off a stepstool similar to the one above. Madden v. Cosco, 2010 WL 2867899 (N.J. Super. Ct. App. Div. July 19, 2010) (per curiam) is an appeal from a defense verdict. Ms. Madden was doing what all grandmotherly figures do around the holidays, making holiday gift packages that include some homemade jelly. Ms. Madden used the Cosco chair stepstool in an effort to reach the homemade jelly, which stayed on a shelf in her kitchen. She fell, and you can figure out the rest.

Ms. Madden’s attorney should have figured out that things were not going his way during voir dire:

During juror voir dire, one prospective juror stated that he thought “there are [too] many frivolous lawsuits.” The next juror interviewed stated that he agreed that “there is [sic] too many frivolous lawsuits and people sue-tend to sue a lot of times for just something-they did something stupid and now they want to make the corporation pay for it.”

The court declined to dismiss the potential jurors for cause, since they affirmed that they could be fair and impartial. Madden’s counsel struck them with a peremptory challenge. The trial took its course. Defense verdict for Cosco. On appeal, Madden’s counsel argued that the comments quoted above tainted the entire venire. Appeal denied. There was no evidence that the jurors decided the case in an unfair manner. Not to mention the fact that the evidence supported the jury verdict. Good job, jury.
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Thursday, July 22, 2010

Smells Like Lung Disease

Fate, it seems, is not without a sense of irony. In his bid to quit smoking and improve his health, Larry Newkirk began eating microwave popcorn to suppress his appetite. What Mr. Newkirk could not have known, while on his course to eating five to seven bags of microwave popcorn each day for eleven years, was that the delectable treat (allegedly) caused his severe lung disease, bronchiolitis obliterans. We reported earlier on a recently filed case involving allegations that Diacetyl‘s “characteristic buttery odor” smelled more like lung disease than popcorn flavoring, but the Eastern District of Washington in Newkirk v. Conagra Foods, Inc., No. CV-08-273, 2010 WL 2680184 (E.D. Wash. July 2, 2010) has had a chance to examine the issue. It issued some Defendant-friendly rulings on a few motions on Daubert as well as summary judgment.

A large part of the opinion focuses on the expert testimony of Dr. David Egilman, the plaintiff’s expert, who is board certified in Occupational and Internal Medicine. Holding degrees from Brown and Harvard, Dr. Egilman is certainly no intellectual lightweight. Mr. Newkirk put forth Dr. Egilman to establish general causation and specific causation. The court excluded Dr. Egilman’s testimony and ultimately granted summary judgment.

Unfortunately for Mr. Newkirk, there was no scientific foundation for Dr. Egilman’s opinions, and, neither does it appear that there will be any scientific foundation, because “manufacturers of microwave popcorn stopped using diacetyl in or around 2007.” Previously, there had been some research on the employees in microwave popcorn plant, and that research tracked the employees according to their particular job function. In addition, there was an EPA study released in 2007 studying the chemicals released when a bag of microwave popcorn is opened. But the “scientific community has yet to determine a safe level of diacetyl exposure.” Dr. Egilman made leaps in logic, equating the diacetyl exposure of a manufacturing worker (those who worked around the large vats of flavoring tantalizingly called slurry) to the purported exposure of a consumer opening a bag of popcorn in the home.

However, there is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical.

Newkirk at *9. The court pointed out this “analytical gap,” even to the point of quoting from Dr. Egilman’s affidavit and expert report (several times), followed by the explanatory parenthetical “citing nothing.” I might try that in my next response brief if I ever need to quote the plaintiff: “[Ridiculous point of law asserted by plaintiff.] (citing nothing).”

Unlike some plaintiffs, Mr. Newkirk has an actual injury. Unfortunately for him, there is no science supporting his allegation of the causation of his injury. We applaud the District Court for demanding science, and, seeing none, dismissing this case.
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Thursday, July 8, 2010

The Death Grip

Answering complaints about the new iPhone 4’s reception when held a certain way, Steve Jobs tersely responded “Just avoid holding it in that way.” According to this article from pcmag.com and numerous other sources, Jobs’ enviable smugness has not been well taken. Shortly after the iPhone 4’s release, “[r]eports soon emerged that holding the phone with fingers covering the three black lines on the phone’s edge and the bottom left corner caused its data reception to plummet.” Multiple suits have been filed claiming that the iPhone 4 is a defective product. Although the problem may be fixed by using a case for the phone, holding it a different way, or perhaps a software workaround, does the $199/$299 price entitle the user to hold the iPhone in any way she sees fit? Perhaps RIM or another competitor can parody Apple’s 1984 commercial, showing a frustrated Apple consumer shot-putting the iPhone 4 (using the death grip of course) at a photo of Steve Jobs. Certainly the drones from commercial could be re-worked as your average thirty-something, Apple-loving, Jobs-doesn’t-make-mistakes consumer. Too bad this didn’t happen in 2012, or we could point to the failure of Apple as a sign of the impending apocalypse.

What were the consumer expectations of the new iPhone anyway? Anyone with an older model iPhone has some anecdotal evidence that call quality is questionable. No one buys the phone for its call quality. No one. You buy it so you can ignore others in public places. You buy it because it has an Apple on the back case. However, as is the case with evolving technology, it’s not clear how big a problem really has to be before its called a defect. Wasn’t Windows 98 really a less buggy version of Windows 95? Even after all of the years of development, Microsoft Windows wasn’t able to escape the blue screen of death, but instead added a black screen of death. Surely sophisticated software consumers are smart enough to know that no gadget is perfect. Even if you can define a shortcoming as a defect legally, the proper remedy is not clear. How much is annoyance really worth? There’s no doubt that the iPhone 4 can make calls. But you might need to buy a case, or hold it a certain way. For now, Apple has not admitted that there is a design defect in the hardware, but the problem can be corrected with a software fix.

This also brings up the practical issue of how hardware defects are a lot harder to fix than software defects. I assume that Apple does not want to provide a free case to all iPhone 4 purchasers, but a software fix is likely not a big deal. Nevertheless, we’ll be able to tell how much this has affected Apple when its exclusivity contract with AT&T ends. My guess is that when other carriers have access to the iPhone 4, there will be no shortage of purchasers. Phones maybe, but no purchasers.

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Thursday, July 1, 2010

No Opinions Please

Before you file your motion for recusal, you better be pretty sure of yourself. When you petition for a writ of mandamus to order the judge to recuse himself, well, you’d better be really sure of yourself. I’m not certain how the lawyers for Sherwin Williams are feeling right now, but, if you’re confident enough to file said motion and petition, then maybe you think a lot of yourself regardless of the circumstances. In In re Sherwin Williams Co., No. 10-1639, 2010 WL 2244119 (7th Cir. June 7, 2010) [pdf], Judge Lynn Adelman is still in the case, despite the best efforts of Sherwin Williams.

Sherwin Williams took issue with a law review article co-authored by Judge Adelman, discussing several Wisconsin cases, one of which extended risk-contribution theory to manufacturers of white lead carbonate pigment manufacturers. See Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523 (Wis. 2005) [pdf]. If a plaintiff can prove that her lead poisoning injuries were caused by such pigments, then the plaintiff can recover against a manufacturer of the pigments. Though the Wisconsin decision was heavily criticized, Judge Adelman pointed out in his article that the decision was consistent with the judicial power endowed to the court by the state constitution. Sherwin Williams, of course, is not a big fan of this extension of liability. At the time that Judge Adelman authored the article, there were no pigment cases before him, but I’m sure shortly after the case was docketed, counsel for Sherwin Williams started the internal debate to decide whether to file the motion for recusal.

I think defendants ought to be aggressive. Too many times, in too many cases, defendants make the easy decision to settle, but I’m not sure that this was the case to say to the Judge, “Judge, we think you’re not capable of being impartial, and please step aside.” There seems to be a jurisdictional issue, in that Thomas is a decision by the Wisconsin Supreme Court, and Judge Adelman, sitting in diversity, would have to follow the law as set out by that court. To that end, it’s not clear what Sherman Williams hoped to gain by this move. Had the case been reassigned, the judge would still have to apply the substantive law of Wisconsin.

Second, extrajudicial writing should be encouraged, for the benefit of the law and for insight into how that judge perceives certain areas of the law. As lawyers, we should want judges to write. After all, if judges didn’t write, what would Congress use to grill judicial appointees for days on end while accomplishing relatively little unearthing of opinions heretofore unknown? Or perhaps judges might have some insight into how the system might be made better.

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Monday, June 28, 2010

My Next Birthday Present

My commute isn’t too bad, but I’m sure a jet pack with a maximum speed of 63 mph could speed things up a bit in the morning. Many thanks to Jim Dedman, fellow contibutor, who sent me the link to this Business Week article published on June 15, which heralds the coming of the Martin Jetpack, introduced on the Martin website as the “World’s First Practical Jetpack.” While I am initially enamored of this invention, the tagline may be a bit much.

How practical can a 535 pound rocket attached to your back be? One that would surely pull you in to the dangerous activities exclusion on your life insurance policy. To Martin’s credit, they designed it as an Ultralight, to get around any requirement for a pilot’s license. I’m not sure that harness looks so comfortable either.

Practicality aside, Martin must have great confidence in its design of the jet pack. According to the Business Week article, it seems that Martin will sell the jet pack for about $86,000, which, all things considered, doesn’t seem like a whole lot of money to relive the story of Daedalus and Icarus. Unless, of course, you turn out to be Icarus on your first trip in the jet pack. Moreover, it’s not clear what type of waiver would be available, if any, to protect Martin from a strict liability claim. See, e.g., Simeone v. Bombardier-Rotax GMBH, No. 02-4852, 2005 WL 2649312 (E.D. Pa. Oct. 12, 2005). Unless a purchaser waives a known product defect, waiver is probably not viable defense. Martin would likely have a public policy problem, i.e., their fantastic waiver drafted by their presumably fantastic lawyers would not be useful in a strict liability action.

Maybe the jet pack will be a huge success. If I read the technical data correctly, the jet pack can hover at around 8000 feet, or more than a mile and a half from the ground, which sounds ridiculously awesome. I’ll wait for the tandem jet pack, as I have no desire to die alone.
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