The social policies underlying strict product liability are best served by extending strict liability to a successor corporation that acquires the business assets and continues to manufacture essentially the same line of products as its predecessor . . . .

Ryan was then forced to argue based on fairness and policy considerations. Ryan had no remedy absent successor liability. The trial court was not persuaded and stated that the product line test was dispositive. Summary judgment for the defendants was granted. Ryan is an interesting case in transactions of asset sales. Look for potential defendants to incorporate purchased products piecemeal, trying to toe the line in taking advantage of the purchased assets while extinguishing successor liability. Plaintiffs would do better to frame these types of issues in terms of being injured by a complicated piece of machinery as a whole, rather than injury occurring due to one particular part of the machinery. Ryan may have been more (or less) fortunate had he been injured by a more integral part of the mixer.

Oh, Kentucky! I wax maudlin as the spring approaches, when the bluegrass begins to grow, and I am reminded of my love of fried chicken, mint juleps, and Billy Ray Cyrus. How wonderful art thou, great state of the Gray Squirrel and the greatest two minutes in sports! And even with all of these enticements to share a state of domicile with Rick Pitino, there is but one ultimate reason to make the move. Although Greenville is a fine place to live, if I were ever to maim or otherwise injure someone, I would hope to do so in Kentucky. I am surprised that the Kentucky Chamber of Commerce does not openly espouse its one year statute of limitations [PDF] on personal injury cases as a benefit of living, maiming, of doing business there. Unfortunately for Johnny Childress, he lived in Kentucky at the time of his injury, and his claim was dismissed because of it.

For reasons not clear in Childress v. Interstate Battery Systems of America, Inc., 2010 WL 600023, No. 1:09CV-54-M (W.D. Ky. Feb. 18, 2010), Mr. Childress did not bring suit within one year of his accident. On November 26, 2007, Mr. Childress drove home, exited his car, and “noticed the distinct odor of battery fumes emanating from his vehicle.” Id. Mr. Childress disconnected the battery, took the battery into his garage, and placed it on a workbench, where it exploded and sent shards of plastic and acid into Mr. Childress’ face and eyes. Childress, inexplicably, waited too late to file his products liability action, and, therefore, he had to assert a theory of recovery that would allow him to maintain his claim. He argued that his accident sounded in the Motor Vehicle Reparations Act, which allowed a two-year period to bring an action.

The two-year limitations period extends to those who were victims of a motor vehicle accident and whose injuries arose out of the use of a motor vehicle. Id. Because the blog adheres to the strictest of legal writing axioms, you already know what the court decided. Childress was not in his vehicle at the time of the explosion, and “it was the battery, not his vehicle, that was the sole cause of his injuries.” Id. Therefore, Childress was time-barred.

Maybe Childress had some bad facts in his claim that would have precluded a finding against the battery distributor, and he was trying to bring in his auto insurer. It’s unclear. But unfortunately for Mr. Childress, who at the very least had a real injury, and perhaps a valid claim, he can’t recover. Manufacturers take note and take advantage of Citizens United: Elect officials who support a one-year statute of limitations. Then I won’t have to move to Kentucky.

Above: The likely lead exhibit in the litigation predicted below. Click to enlarge.

The appellate court reasoned that because of the status of California law, a showing of individual deception and reliance wasn’t necessary under the UCL and that the trial court used an incorrect legal assumption under the CLRA. The appellate court left open the question whether there is a “reasonable bodybuilder” standard, and, if so, its application in this matter. As noted above, and as found by the trial court, a reasonable bodybuilder might push the limits more than your ordinary reasonable person. Isn’t it at least plausible that a reasonable bodybuilder would hope against hope that his supplement contained a little something extra. Maybe not in the post-Schwarzenegger era. The court’s legal reasoning is straightforward, but the supplement crowd may have fashioned a workable grand scheme: Buy supplements, see if they work, and if they don’t, seek restitution under consumer protection statutes. Those who disagree may just have sand kicked in their faces.

Cunningham filed suit in state court in an ostensibly small class, purchasers of Learjets who had received a certain warranty. Learjet removed the action pursuant to CAFA, and the plaintiffs moved to certify two classes. The district judge denied both classes because neither could satisfy the requirements of Rule 23. This raised the question, however, of what should happen to federal jurisdiction under CAFA when the district court conclusively rules that the pending case is not a class action? While the district judge ruled that denial of certification terminates federal jurisdiction, the panel reversed and noted that the act is, after all, a fairness act.

While this may seem like a victory for defendants, my guess is that this will result in further structuring of lawsuits to avoid CAFA entirely, as noted in an earlier post. Posner himself notes in the opinion that if it immediately appears that a case cannot satisfy CAFA, i.e. a frivolous class action, then federal jurisdiction would never attach. The effect of this opinion, then, might be to actually reduce the number of class actions in federal court, rather than to increase the number of actions retaining federal jurisdiction subsequent to denial of certification.

A recently released opinion from the Missouri Court of Appeals addresses some interesting points of law involving the Fireman’s Rule. In confronting that issue, the appellate panel in Martin v. Survivair Respirators, Inc., 298 S.W.3d 23 (Mo. Ct. App. 2009) [PDF] affirmed a $27 million verdict and sustained an abnormal use of “but-for” causation.

Regrettably, Martin involves the death of a firefighter. For this particular firefighting squad, each firefighter had a face mask with a valve that expelled the firefighter’s exhaled breath and a PASS alarm. The PASS alarm would screech when it was motionless for twenty seconds. At a fire in St. Louis, Firefighter Morrison, with the above-described equipment, entered a building in which the fire flared up. Morrison became disoriented and eventually non-responsive. After another firefighter, Walters, was unable to rescue Morrison, Walters left the building and informed other firefighters, including Martin, that Morrison was down. Morrison’s PASS alarm failed to activate. Martin entered the building and quickly radioed a personal distress call. Martin activated his PASS alarm in order to be found, but he proved difficult to locate because “the sound bounced off the walls.” Id. Martin was recovered, but not before he died of smoke inhalation. In response to the suit brought against it, the manufacturer, Survivair, claimed, among other things, that the Fireman’s Rule barred recovery, and that there was not a sufficient causal link between the failure of Morrison’s PASS and Martin’s death. Addressing the issue, the panel recited the Fireman’s Rule as follows:

Above: A promotional still from the new ABC series, “The Deep End.”

In an attempt to keep this blog refreshing, the powers that be have consented to a minimal amount of frivolous Friday posts exploring the depiction of the legal profession in popular culture. Today’s post reviews last night’s series premiere of The Deep End, a legal comedy/drama on ABC shown from the perspective of five first-year associates at a BigLaw Los Angeles law firm, Sterling, Huddle, Oppenheim & Craft, not to be confused with Sagman, Bennett, Robbins, Oppenheim & Taft, a firm with a much more esteemed place in TV history.

It’s easy to attack The Deep End for its utter lack of realism. No one would watch a show about associates sitting in their offices 11-12 hours a day staring at documents and holding Dictaphones. So don’t expect realism. Really, don’t. A bitter custody dispute between a mother-in-law and daughter-in-law over the grandson/son ends with the litigants holding hands. (How many bitter family law cases do BigLaw first year associates handle? Don’t ask.).

From a legal perspective, the depicted firm has several strange conflicts of interests. Cliff Huddle (Billy Zane), the Managing Partner, schemes against his firm’s own pro bono client, while new associate Beth Branford (Leah Pipes) fails to protect an elderly, vulnerable corporate CEO (although it wasn’t especially clear who the actual client was or should be – the corporation itself or the officer in his individual capacity.). There is a seemingly ex parte meeting with a judge. Another first year associate, Liam Priory, (Ben Lawson) almost breaks an ethical rule by having sex with a client, but thankfully, any sexual activity that may or may not have occurred took place before any retention agreement was signed. For a group of lawyers who purport to work 24/7, they seem to find enough to time to gather together to lament the fact they work 24/7.

Moreover, the show is simply predictable and boring, flaws which are not confined to legal dramas. Plots and characters are far from compelling, and cliches abound. The idealist associate wins in the end. (Of course). The spineless associate suddenly shows some backbone, earning respect for suddenly showing courage. The privileged associate fails to stand up to her overbearing father, provider of the privileged status. In addition, the writers offer awkward exchanges of dialogue in an attempt to capture the essence of first-year lawyering, e.g., (“Q: Are we supposed to love this job or hate it? A: Both.”). (This dialogue is said with excited smiles). I suppose that some of the shaky camera style was supposed to give us the feeling of a first year as well, along with first year associate Dylan Hewitt’s (Matt Long) constant hugging of his briefcase when things get tough. Yes, you are scared about failing. We get it. What I don’t get is why these first-year associates even have jobs. Who is this firm’s recruiting coordinator, who, I should note is conveniently absent from the pilot episode, perhaps due to the poor hiring choices?

The pilot episode of The Deep End aired at 8 p.m. EST on ABC. The episode was written by David Hemingson and directed by Michael Fresco. The cast includes Matt Long (who plays Dylan Hewitt); Leah Pipes (Beth Branford); Ben Lawson (Liam Priory); Tina Majorino (Addy Fisher); Billy Zane (Cliff Huddle); Nicole Ari Parker (Susan Oppenheim); and Clancy Brown (Hart Sterling).

In a recent case, the Eighth Circuit illustrated the power that plaintiffs wield in a putative class action through Rule 20 of the Federal Rules of Civil Procedure. In In re Prempro Products Liability Litigation, No. 09-1205, 2010 WL 21090 (8th Cir. Jan. 6, 2010) [PDF], the Eighth Circuit reversed the district court’s denial of the plaintiffs’ motion to remand. The central issue in the case was a thorny issue of misjoinder, i.e., whether plaintiffs’ filing of omnibus-type cases can defeat a removal based on diversity jurisdiction.

Without getting into the intricacies of the procedural history, the crux of the problem is as follows: Unrelated plaintiffs in a group of hormone replacement therapy cases banded together to defeat diversity jurisdiction by combining their claims against multiple defendants in one case, ensuring that at least one plaintiff asserted a claim against a defendant with the same state citizenship. This approach differs from the “traditional” method of diversity destruction, fraudulent joinder, where a plaintiff joins a non-diverse defendant on a meritless claim.

Although the Eighth Circuit did not adopt a position on “fraudulent misjoinder,” its ultimate disposition was not sympathetic towards the defendants. It did not dispute the district court’s findings that the plaintiffs had taken different HRT drugs, made by different manufacturers, prescribed by different doctors in different states, for varying amounts of time causing various injuries. Instead, the Eighth Circuit noted that “[p]laintiffs‘ claims arise from a series of transactions between HRT pharmaceutical manufacturers and individuals that have used HRT drugs.” Id. “Furthermore, given the nature of the plaintiffs’ claims, this litigation is likely to contain common questions of law and fact.” Id. Note that even if there was a misjoinder, there is apparently some level of misjoinder that would still defeat diversity but would not approach the type of “egregious misjoinder” necessary to sustain federal subject matter jurisdiction.

Plaintiffs are structuring suits in the products liability realm to defeat complete diversity but are stopping short of reaching removal jurisdiction under the Class Action Fairness Act of 2005 (“CAFA“). Perhaps the defense bar should remain satisfied with CAFA for the time being. Cases go both ways, but a straight-forward reading of 28 U.S.C. 1446(b) seems to suggest that a court’s analysis of removal should be more akin to a Rule 12(b) motion as opposed to a summary judgment motion. The defense bar may need to balance the need to move its cases forward with the possibility of asking a federal court to gaze into the future, review discovery, define what a transaction or “series of transactions” is in the context of the particular matter, and determine whether any misjoinder is so egregious that federal jurisdiction is proper.

Apple wins, always. In Birdsong v. Apple, Inc., No. 08-16641, 2009 WL 5125776 (9th Cir. Dec. 30, 2009) [PDF], the Ninth Circuit affirmed the dismissal of a complaint alleging that Apple’s iPods are defective because it is possible to listen to music at an unsafe volume, and, therefore, they pose an “unreasonable risk of noise-induced hearing loss.”

The plaintiffs planned to represent a nationwide class of iPod users, but the Court rebuffed the plaintiffs’ two main arguments. First, the Court stated that the plaintiffs had alleged no facts that could support a breach of the implied warranty of merchantability. Second, plaintiffs had no standing to assert a claim under California’s unfair competition law.

The plaintiffs alleged that the iPod could be made safer, by the use of some noise-reduction technology or software that could relay the volume in decibels to the iPod user. Simply because a product could be used in a risky manner, however, is not enough to prevail on a warranty of merchantability claim. Put simply, the iPod performs exactly as intended, and there is no breach of the warranty of merchantability.

In addition, the plaintiffs’ claims under the unfair competition law were not supported by an injury, and, therefore, plaintiffs had no standing to assert their claims. First, the plaintiffs did not claim any actual hearing loss as a result of their iPod use, ostensibly because they were not, at any time, actually injured by their iPod. Neither did they assert that such harm was “actual or imminent.” The court observed as follows:

[T]he plaintiffs’ third amended complaint reveals the conjectural and hypothetical nature of the alleged injury as the plaintiffs merely assert that some iPods have the “capability” of producing unsafe levels of sound and that consumers “may” listen to their iPods at unsafe levels combined with an “ability” to listen for long periods of time.

Id. Finally, plaintiffs’ contention that the iPods’ lack of safety diminished their value to the plaintiffs could not satisfy the injury-in-fact requirement, and the Court noted the plaintiffs’ admission that “Apple provided a warning against listening to music at loud volumes.”

What remains to be seen is where a similar case could go if there were actual injury. Such an injury could support an unfair competition claim as well as additional negligence claims.