The Yamaha Motor Corporation has caught a lot of flack recently over the lack of doors on its two-seater Rhino all-terrain vehicle.  After it made some safety modifications to the Rhino in 2007, Yamaha was hit with a number of lawsuits – 175 in California alone.  The national media caught wind of the lawsuits and came down pretty harsh.  In response, Yamaha created its own website, TruthAboutRhino.com, and a Rally Around Rhino widget to garner support for the ATV.  We don’t the know effectiveness of Yamaha’s use of the Interwebs, but something must have worked.  Yamaha prevailed in all but one of the lawsuits.  As to the one that got away?  Well, that one was recently reversed by an appellate court.

Earlier this month, in Yamaha Motor Corp. U.S.A. v. McTaggart, No. A11A1022 (Ga. Ct. App. Nov. 15, 2011), the Georgia Court of Appeals reversed and remanded the case to the trial court with direction to enter judgment granting Yamaha’s motion for a directed verdict.  In 2008, the plaintiff filed suit against Yamaha after he flipped his Rhino and suffered a severe laceration to his leg.  The complaint alleged that his injuries were caused by a latent stability defect and the absence of doors.  (The stability defect claims were abandoned four weeks before trial).  Following a trial, the jury found that the Rhino’s defective design proximately caused the plaintiff’s injuries and returned a verdict in his favor for $317,002.

On appeal, Yamaha argued that the undisputed evidence at trial demanded a finding that the plaintiff assumed the risk of his injuries.  At trial, the plaintiff testified that the Rhino was useful to him “because it had no door.”  When he purchased the ATV, he declined the dealership’s offer to install an after-market door because he preferred the open access.  Further, the plaintiff admitted that he had seen and understood the significance of keeping his legs inside the Rhino during a rollover.  When the salesman reviewed the warning stickers on the Rhino, the plaintiff admittedly laughed and said, “Well, man, common sense would tell you not to do that, right?”  Looking at the evidence as a whole, the Court found that the plaintiff had significant experience operating the Rhino and was clearly aware of the potential danger of injury to his limbs.

Yamaha may champion this decision on its Rhino website, but it should be noted that this decision tells us little, if anything, about the alleged defective design of the Rhino.  That issue was not on appeal.  We can see how some may view doors as a necessary component of a vehicle.  But let’s get real.  We aren’t talking about driving a DeLorean down the freeway.  We are talking about a Rhino – an all-terrain vehicle.  Ever heard of Jeep?  No doors necessary.

Regardless of the potential design defect, the Court of Appeals got this one right.  Buying a product specifically because it doesn’t have doors, then suing for the same reason seems illogical.  The plaintiff admittedly was fully aware of the risks – always a good sign when trying to formulate an assumption of risk defense.

Dear Abnormal Use:

I have been a faithful follower of your blog since its inception back in 2010.  You bring unprecedented personality to the perilous world of legal blogging.  The interwebs would be a sad place without your daily presence.  Your work is greatly appreciated.

I am writing to you, however, not to sing your praises.  Rather, I wanted to advise you of a horrible oversight made on your blog.  In March, you compiled a list of the top songs about lawyers, judges, and attorneys.  After recently re-reading that post, I noticed that you omitted the classic album of Bob Noone & The Well Hung Jury, “2nd Helping of Chicken Suit for the Lawyer’s Soul.”  I respect Abnormal Use tremendously and can only assume this omission was inadvertent.  Mistakes happen.  I understand.  I am not trying to get a negligent associate fired.  I only want to give you time to correct your mistake before the ABA Journal announces its top legal blogs of 2011.

It is almost laughable that a mistake of this magnitude could occur.  “Chicken Suit” contains 14 Grammy-caliber tracks and not one was mentioned by your blog.  How could you forget “Why Don’t We Get Drunk & Sue”?  The song is the perfect blend of Jimmy Buffett and dramshop laws.  How can you include Metallica’s “And Justice For All,” but omit “My Lawyer’s Back”?  Someone is going to get in trouble for this.

Bob Noone is not just a singer – he’s an attorney-singer.  He graduated from the West Virginia School of Law in 1983 and is currently  Of-Counsel at the firm Bucci, Bailey, & Javins, LC in Charleston, West Virginia.  He doesn’t just write great legal music.  He lives its.

I must admit that as I write this letter, I find myself growing more agitated that your editor could allow this error to occur.  You champion yourself as being a top-tier legal blog, yet you fail to acknowledge “Cover of the A.B.A.”  The song has a distinct message – you can’t be famous until you find yourself on the cover of the ABA Journal.  You of all people should know this.  You were named one of the Top-100 blawgs by the publication last year and have requested that we nominate you yet again.  How dare you bite the hand that feeds you.

Here’s your problem.  You became too enamored with the so-called “music” of Bob Dylan and Bruce Springsteen.  Last time I checked, Dylan and Springsteen never took the Bar Exam.  Guess who did?  Bob Noone.  Noone knows the law.  In order to write about the law, you have to experience the law.  Listen to “Every Minute Must Get Billed,” and tell me it doesn’t bring a tear to your eye.  For the record, Axl Rose knows as much about being a lawyer as Toby Keith knows about war.

Let’s put our differences aside.  Your mistakes are easily corrected.  If you can’t include “Chicken Suit” in its entirety, just give me one song.  “Lawsuit Riot”?  “My Will”?  “Probation Polka”?  The choice is yours.  Ignoring this letter is the only way you can go wrong.

I like you.  I really do.  But for the love of all things sacred, give Bob Noone and the Well Hung Jury the respect they deserve.

Sincerely yours,

A Concerned Reader

Recently, in Osorio v. One World Technologies, No. 10-1824 (1st Cir. October 5, 2011),the First Circuit Court of Appeals affirmed the denial of a table saw manufacturer’s motions for post-trial relief after it was hit with a $1.5 million verdict.  In that case, the plaintiff was severely injured when his hand slipped and slid into the blade of a BTS 15 table saw manufactured by Ryobi.  The saw was equipped with a blade guard and a guiding rip fence, but they had been removed by the plaintiff.  The plaintiff sued Ryobi for negligence and breach of the implied warranty of merchantability.  After an eight day trial, the jury returned a verdict of $1.5 million.  Ryobi moved for judgment as a matter of law and for a new trial.  The district court denied the motions, and Ryobi appealed.

The plaintiff argued the saw was unacceptably dangerous due to a defective design.  To support his claim, the plaintff relied primarily on the testimony of Dr. Stephen Gass.  In 1999, Dr. Gass invented a mechanism known as “SawStop” which immediately stops a blade from spinning when it makes contact with human flesh.   Dr. Gass pitched his product to a number of major table saw manufacturers, including Ryobi, but he didn’t catch any suitors.

Before we go any further, we must admit that we find this scenario perplexing on multiple levels.  First, if SawStop has been shot down by every major table saw manufacturer, Dr. Gass was certainly motivated to stick it to Ryobi at trial.  We can imagine the dollar signs flashing in the plaintiff’s head when he discovered Dr. Gass.  A witness harnessing some beef with the defendant who will also testify to an alternative design?  Sign him up.  Second, if SawStop is so revolutionary, why have all of the table saw manufacturers turned it down?  The plaintiff concocted the conspiracy theory that manufacturers avoided SawStop due to a collective agreement that if any of them adopted the technology, the others would face heightened liability exposure for not doing so.  While it is not in the reported opinion, we hear they also presented evidence that Buzz Aldrin’s moon landing was filmed in a Hollywood studio.

In reality, there may have been a more plausible explanation for not adopting SawStop.  There was some dispute over whether a small benchtop table saw could properly absorb the force necessary to stop a rapidly spinning saw blade.  Ryobi also questioned whether a saw equipped with SawStop could remain portable, a trait necessary for its many contractor customers.  Further, the addition of SawStop would nearly double the cost of the saw.  If that is not enough, Dr. Gass actually testified that SawStop’s flesh-detection system could be erroneously triggered when cutting wet or pressure-treated wood.  These are all factors that Ryobi, and presumably other manufacturers, considered when deciding between the cover blade or adopting SawStop.

On appeal Ryobi argued that instead of presenting a viable alternative design, the plaintiff

set out to prove that the entire category of lightweight, inexpensive, benchtop table saws to which the BTS 15 belongs was defective, in part because the saws’ manufacturers have not incorporated flesh-detection braking systems into their designs.

The First Circuit acknowledged that “categorical liability” claims are generally impermissible.  However, it noted that the defining characteristic of a categorical liability claim is the  absence of an alternative design.  Admittedly, the plaintiff clearly offered evidence of an alternative design.  Should the alternative design really count when it has been unanimously rejected by the field?  Even though there is that whole lingering conspiracy thing, its not like Ryobi was without reason for rejecting SawStop.  Perhaps the more viable alternative design would be a saw without a removable blade guard a guiding rail – less expensive and doesn’t affect the integrity of the saw.  Crazy theory, but then what would the plaintiff had done with his star witness?

Last night, plaintiff’s attorney and “Hot Coffee” documentary filmmaker Susan Saladoff appeared as the guest on “The Colbert Report” on Comedy Central.  You might recall that Saladoff’s Hot Coffee documentary debuted at the Sundance Film Festival back in January.  Thereafter, it premiered on HBO in June.  Why the media blitz in late October? Well, Saladoff is now promoting the November 1 DVD release of her documentary.  This is big news.  For just $29.95, you can own a copy of the film complete with extra footage. Just in time for the holidays!

You can find the clip of her appearance on the Colbert Nation website here.

The majority of the interview was a simple rehashing of Saladoff’s standard mantra – tort reform is bad, frivolous lawsuits are uncommon, and corporations are brainwashing us to think otherwise. Obviously, we don’t share Saladoff’s point of view, but her message is one she is free to make. She certainly didn’t dedicate much time to discussing the Liebeck case itself – the litigation from which her film takes its name.  When asked by host Stephen Colbert about the frivolous nature of Liebeck’s lawsuit, Saladoff responded with her all too familiar talking points:  1)  Liebeck’s injuries were real; 2) McDonald’s only offered $800 to settle the case; and 3) McDonald’s knew its coffee was capable of causing burns and continued to serve it nonetheless.  That’s all true, of course.  Liebeck did sustain third-degree burns.  McDonald’s did initially offer $800 to settle the case, presumably believing it could not be held liable for damages caused by an individual drinking a hot beverage.  The testimony in the case indicates that McDonald’s did know that hot coffee could cause burns. But even if we take those three points as a given, so what?

As we’ve often asked on this site, why should McDonald’s be held liable for damages caused by a beverage which by its nature is meant to be served hot?  When presented with that question, Saladoff claimed that McDonald’s knew its coffee could not be consumed at the temperature at which it was served.  Seriously?  It seems absurd to think that a business would serve a product it knew no one could consume.  We suppose someone forgot to tell the billion customers who purchased – and presumably drank – McDonald’s coffee in the decade prior to Liebeck’s accident.  Further, Saladoff alleged that McDonald’s coffee was capable of causing third-degree burns in as little as three seconds.  Three seconds?  Really?  If true, one would expect far more burn complaints considering the billions of cups of coffee sold.  Why not mention the fact that Liebeck sat in the coffee for 90 seconds?  Why not mention that Liebeck’s clothing actually held the coffee closer to her skin?  Why not mention that Liebeck could have suffered the same extent of burns had the coffee been served at a temperature as low as 130 degrees?  Apparently, these facts aren’t necessary components of the “real story.”

Saladoff also mentioned that Liebeck’s settlement agreement with McDonald’s included a gag order.  As we’ve noted before, Saladoff was a plaintiff’s personal injury attorney for 20 years prior to her turn as a filmmaker.  We suspect she’s previously encountered confidentiality provisions in settlement agreements, which are included for all sorts of legitimate reasons.

We here at Abnormal Use continue to question Saladoff’s inclusion of the Liebeck case in her anti-tort reform documentary.  We also wonder if the DVD “extras” she mentioned actually contain new information about the Liebeck case or if they are comprised of more out of context anti-tort reform talking points. If you pick up a copy on November 1, be certain to let us know.

For nearly 20 years, the story of the New Mexico woman awarded millions of dollars after burning herself with McDonald’s hot coffee has been a fixture of litigation lore.  To many, the case is an example of the need for tort reform.  To others, it represents a success of our tort system.  But what really happened in the Stella Liebeck McDonald’s hot coffee case?  Why has one cup of coffee prompted so much discussion of our litigation system? Well, guess what? You can now learn the answers to those questions from us – on a brand new live CLE webinar tomorrow!

As you know, we here at Abnormal Use have written extensively on the McDonald’s hot coffee case.  We have presented you with an extensive FAQ file on the litigation.  We have offered our review of Susan Saladoff’s recent Hot Coffee documentary.  We continue to keep you apprised of news on the hot coffee litigation front.  Our work on this subject has been cited by both NPR and The New York Times.  Now, dear readers, we are pleased to announce that Abnormal Use is set to give you hot coffee news like you have never seen it before – live over the interwebs!

So, here is your chance to finally interact with us in real time on this controversial topic! Tomorrow, on Thursday, October 20, 2011, we will present an online CLE webinar on the Stella Liebeck McDonald’s Hot Coffee case.   Due to the amount of comments on our hot coffee posts, we know you would relish the opportunity to hear our presentation and pepper us with your comments and questions.

The webcast – sponsored by Thomson Reuters – will be conducted tomorrow from 10:30 am – 11:30 am (EST) and has been approved for CLE credit in about 40 states.  You can sign-up here.  The cost of the CLE is a mere $135, and participants will be provided with course materials (prepared by your friends at Abnormal Use), an hour-long audio presentation, and the opportunity to submit questions to us during the webinar.

Some familiar names from Abnormal Use will be presenting, including Nick Farr and our editor, Jim Dedman. To show that this webcast is kind of a big deal, we have also called in Gallivan, White, & Boyd, P.A. senior partner Howard Boyd to offer his wisdom on the subject matter.

We hope you’ll be able to join us tomorrow. If you can’t make it, you can always listen to the presentation – and earn CLE credit – later by accessing the presentation in the Thomson Reuters/West Legal Education webinar archive at your convenience.

You can access all the information about the webinar here.

Last month, the thriller Drive starring Ryan Gosling opened in theaters nationwide.  From what we can discern from the film’s trailer, its follows a Hollywood stunt driver and his perils following some dirty-handed contract work.  For those who need a touch of romance alongside their action, the driver falls in love with the married woman whose family he entered the contract to protect.  Or something like that.  We here at Abnormal Use have not seen the film, but we think it looks somewhat entertaining.  One litigant, however, wants her money back.

A Michigan woman has filed a lawsuit against the film’s distributor, FilmDistrict, and the Michigan theater in which she saw the film, seeking a refund of her ticket price.  Yes, we know it sounds absurd to accumulate legal fees and court costs over an $8 ticket.  The movie can’t be that bad, right?  After all, it did gross nearly $12 million (with a $15 million budget) during its opening weekend.  If people can sit through three hours of The English Patient without feeling the need to sue its distributor, Drive must be horrible. Oh, and here’s the best part: She wants to certify the suit as a class action!

What could possible make Drive so horrendous that a federal class action lawsuit becomes necessary to save cinema goers from seeing it?  According to the lawsuit, the woman claims that FilmDistrict marketed Drive as being very similar to The Fast and the Furious when, in actuality, the film “bore very little similarity to a chase, or race action film . . . having very little driving in the film.”  Oh, the horror!

After you have regained your composure, let’s take a closer look at these allegations.  First, is the plaintiff really claiming she has been damaged because Drive did not meet the high standards of The Fast and the Furious?  Seriously?  While Fast was the career high point for both Vin Diesel and Paul Walker, it is a movie that can only be enjoyed along side a $3 bottle of gas station wine.  Claiming that a movie is dissimilar to Fast should be considered a compliment.  If the plaintiff claimed she had been duped into watching a pseudonymous Fast sequel, we would feel her pain.  After all, the fact that five Fast films have already been made is a grave injustice to the film industry.  But the fact that the plaintiff is actually complaining that the move is not like Fast is beyond our comprehension.

Second, even if we assume Fast has some cinematic merit, was Drive really trying to market itself as such?  Take a look at the Fast trailer from 2001. To the plaintiff’s credit, there are a lot of similarities between the two trailers.  Both have cars.  Both show people kissing.  Both have dramatic music as a background.  We can see how the plaintiff might see a resemblance.  Despite all these similarities, however, the movies are not marketed as one in the same.  In the Drive trailer, it is apparent that the movie has some story line.  After watching the Fast trailer, all we know about the film is that the actors do something in cars, and they like to do it fast.  Of course, it was probably hard to reveal a plot in the Fast trailer considering the film’s utter lack thereof. Oh, well.

Over the past year, we here at Abnormal Use have often written on hot coffee litigation lore.  We have provided you with a comprehensive FAQ file on the famous Stella Liebeck McDonald’s hot coffee case.  We have offered our critique of Susan Saladoff’s recent documentary on the subject.  We have even tried to keep you up-to-date on hot coffee cases around the country.  Why?  With each new case, we can present a new twist on the ridiculousness that is the “unreasonably dangerous” beverage.  Enter exhibits #1,234 and #1,235.

Last week, news broke of litigation in New York and California involving spilled coffee.  In California, a man ordered a Big Mac and two coffees at a McDonald’s drive-thru in Huntington Beach California.  He claimed that a McDonald’s employee dumped “scalding” coffee into his lap, causing him to suffer first- and second-degree burns.  In his lawsuit filed in the Orange County Superior Court, the man now alleges that McDonald’s served coffee at “extremely unsafe” temperatures and used defective cup lids.  He is seeking more than $25,000 in damages.  The report was silent as to any further details.

In New York, a 10-year old girl was awarded $600,000 by a special referee for past and future pain and suffering after she too was burned with hot coffee.  The girl was a guest at a Sweet 16 birthday party when she came into contact with the electrical cord of a 40-cup commercial coffee urn.  Her contact with the cord caused the urn to overturn, spilling coffee onto unspecified parts of her body.  As a result, she suffered second- and third-degree burns and was hospitalized for ten days.  Her mother sued Mastrantonio Catering, Inc. in a New York state court.  After Mastrantonio failed to file a timely answer, the plaintiff moved for a default judgment.  The motion was intially denied, but later reversed and granted by a New York appellate court.

What can we learn here?  Hot coffee litigation spans from coast-to-coast.  Some may argue that the continued expansion of hot coffee cases is evidence that the beverage is unreasonably dangerous.  Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief.  McDonald’s, as well as anyone, is familiar with these lawsuits.  Catering companies certainly recognize the need to serve products suitable to their customers.  Despite the threat of litigation, people will continue to demand that their coffee be served hot.

In the California case, the McDonald’s employee allegedly spilled the coffee onto the plaintiff.  It wasn’t that the coffee itself was unreasonably dangerous and defective; rather, the allegation is that an employee negligently spilled hot coffee onto the customer.  In the New York case, the plaintiff was awarded $600,000 after Mastrantonio went into default.  The plaintiff’s motion for default judgment was granted, not because Mastrantonio failed to present a meritorious defense, but rather, because it failed to demonstrate a justifiable excuse for its default.  Once the issue of liability was decided, the special referee was left to determine the extent of the injuries themselves.  Liability was never at issue.  We have never disputed the extent of hot coffee burns in these cases.  Rather, we fail to understand how a maker of coffee can be held liable for preparing and serving a beverage in its expected form.

These cases have one common theme – coffee is hot and can cause burns when spilled.   Some may find these cases ripe for litigation while others feel they have no place in our courtrooms.  Its all a matter of perspective.  You obviously know our perspective.  If you want to read a well-written counter-proposal from a different perspective, check out this piece from Christopher Pascale at Suite 101.

My grandfather lived by the adage, “If a product was any good, the company wouldn’t have to advertise.”  As a child, I never knew if he took the saying seriously, or if it was simply a means to justify his incessant channel surfing.  Today, as an adult, I think about his proverb every time I turn on the television.  It is amazing the lengths to which companies will go for a 30-second window in which to pitch their products.  Advertisements make outstanding claims, leading viewers to believe a product is a life necessity.  If all products worked as advertised, we would live in a commercial utopia.  Unfortunately, we can’t believe everything we see.

Recently, the Federal Trade Commission filed a complaint against Reebok International, Ltd. in the Untied States District Court for the Northern District of Ohio regarding advertisements for its EasyTone and RunTone line of athletic shoes.  According to the complaint, Reebok engaged in “unfair or deceptive acts” by representing in both television and print media that

laboratory tests show that when compared to walking in a typical walking shoe, walking in EasyTone footwear will improve muscle tone and strength by 28% in the gluteus maximus, 11% in the hamstrings, and 11% in the calves.

and that

running in RunTone shoes will tone and strengthen the legs and butt more than running in a typical running shoe.

According to the FTC, these allegations cannot be replicated in independent laboratory settings.  You can view one of the allegedly “unfair and deceptive” commercials here.

While we must commend the FTC for promoting truth in advertising, this lawsuit raises a number of issues.  First, if the shoes do not tone and strengthen by 28%, what do they do?  The complaint is silent as to the results of the FTC’s study.  If the shoes only increase muscle tone by 25%, is it really necessary to hold Reebok accountable for false advertising?  Even if the shoes increase tone and strength by a marginal percentage, customers still gain a net benefit versus conventional shoes.  We doubt the average consumer is overly concerned about the exact percentage points.  If the shoes actually decreased muscle tone and strength, then this lawsuit may be necessary.

Second, how have the consumers been harmed by Reebok’s advertisements?  FTC alleges that consumers have suffered from “substantial injury.”  However, the complaint neglects to mention any specifics.  In fact, consumers may have actually derived a benefit from the shoes.  Aside from the aforementioned increase in tone and strength, the shoes may have provided consumers with added incentive to walk or run.  As we here at Abnormal Use can attest, we could all benefit from more exercise.

While the allegedly deceptive advertisement may have had little, if any, effect on consumers, FTC’s complaint had a major effect on Reebok.  Shortly after FTC commenced its lawsuit, Reebok settled with the FTC for $25 million.  As a part of the settlement, the FTC has arranged for those affected by Reebok’s “deceptive act” to request a refund.  In order to receive the refund, consumers are not required to demonstrate a lack of increase in muscle tone.

Was my grandfather correct?  Are advertised products less effective than the non-advertised competition?  While we here at Abnormal Use can not attest for the sufficiency of EasyTone shoes, we do believe advertisements are prone to some embellishment.  As consumers, we have come to temper our expectations. As for Reebok?  Following the settlement, it issued a statement, saying, “Settling does not mean we agree with the FTC’s allegations; we do not.”

Last week, Qualitest Pharmaceuticals announced that it was recalling birth control pills due to a packaging error which left women at risk for unplanned pregnancies.  Qualitest discovered that select blisters were rotated 180 degrees within the packaging. As a result, the weekly tablet orientation was reversed and the daily orientation was incorrect.  According to the report, no immediate health risks were expected (except the possibility of pregnancy, of course).  This recall poses a few intriguing issues.

First, it is rare to see a drug recalled due to its packaging under these circumstances.  Drug recalls themselves are not uncommon.  Certainly, we can all remember at least one drug pulled from the shelves after the discovery of adverse side effects.  However, recalling a drug due to a packaging error is a completely different story.  If a product is recalled due to a “packaging error,” we might expect it to be the result of mislabeling or an injury-causing plastic bottle.  Seldom, does a packaging error actually affect the performance of the drug itself.

The fact that the mere 180 degree rotation of a product’s packaging can render a product completely ineffective seems curious.  If Crayola accidentally packaged its product in reverse-rainbow order, the crayons would not cease to become coloring utensils.  One would think that if a company is capable of designing a product that can alter reproductive hormones and prevent unwanted pregnancies, it could also design a package not affected by a reverse rotation is what a popular vascular doctor notes.

Second, what legal liability may Qualitest face as a result of this error?  We anticipate plaintiffs who have experienced an unwanted pregnancy will expect to hold Qualitest accountable.  They may elect to assert a claim for wrongful pregnancy; however, this cause of action is typically filed against medical providers for failing to perform a sterilization procedure correctly.  If a medical provider can be held liable for failing to perform a vasectomy, so too might a pharmaceutical company for negligently packaging its birth control pills.  If the plaintiffs are unable to assert a wrongful pregnancy cause of action, it is unlikely their “unwanted children” would have a cause of action for wrongful life.  Only a small number of states permit wrongful life actions, and those that do typically require the child to be born with some birth defect.

Third, even if plaintiffs have a cause of action against Qualitest, there most certainly would be some issues of comparative negligence.  While the birth control pills may have been rotated and disoriented, they are also color-coded – the first three weeks of hormone-producing pills are one color, while the last week of placebo pills is another.  By taking these pills on a monthly basis, plaintiffs would undoubtedly have noticed this distinction.

What should we learn from all of this?  Two things: 1) If you are a consumer of birth control pills, check your packaging to make sure you are staying on schedule; and 2) If you are a manufacturer of birth control pills, try using circular packaging.

A law professor (who shall remain anonymous) once said that the use of Latin phrases in an opinion is an indicator that the judge has no idea what he/she is doing.  Hyperbolic?  Yes.  Plausible?  Of course.  We all know nothing screams “astuteness” like a foreign language – especially a dead one.  Accordingly, Latin is the perfect culprit for disguising unsound legal reasoning and maintaining judicial integrity.  On a similar note, Latin phrases are also the ideal substitute for the greatest legal argument ever made – “that just doesn’t sound right.”  What to do when the facts of a case leave but one logical conclusion and the common and statutory law do not pave a clear path to get there?  Toss in some Latin.  Works every time.  Recently, in Tang v. Synutra International, No. 10-1487 (4th Cir. Sept. 6, 2011), the Fourth Circuit put our theory to the test when a class of Chinese citizens attempted to bring certain product liability claims against a Chinese manufacturer in Maryland.  The Court’s answer?  Forum non conveniens. That’s Latin, right?

In Tang, the plaintiff class consisted of a group of Chinese residents who had been injured in China by melamine-contaminated infant formula.  The formula was manufactured and distributed in China by Sheng Yuan Nutritional Food Company, a Chinese subsidiary of Syuntra International, Inc.  Because Syuntra has its principal place of business in Maryland, the plaintiffs elected to file suit in federal district court in Maryland, alleging various causes of action pertaining to the manufacturing, distributing, and marketing of the formula.  The district court granted Synutra’s motion to dismiss the complaint on the basis of forum non conveniens. The Fourth Circuit agreed, holding that China was an available, adequate forum for the plaintiffs’ claims.

Forum non conveniens (Latin for “forum not agreeing”) is a well-established common law concept.  Accordingly, no archaic language creativity was needed (but certainly the first judge to coin the phrase must have first thought, “that just doesn’t sound right”).  Like the many cases that came before it, this case could lead to but one conclusion.

The plaintiffs’ argued that the American venue was the proper venue to adequately protect their interests.   There was some evidence in the record showing that Chinese courts had thwarted contaminated formula lawsuits.  Voluntary lawyers had been warned that their involvement in the litigation could lead to social unrest.  Affidavits from two Chinese lawyers indicated that Chinese courts unreasonably delayed the litigation even after the Supreme People’s Court announced its readiness to hear the claims.  If true, the plaintiffs would obviously face difficulty in pursuing their claims through the Chinese legal system.

Despite their apparent struggles, allowing Chinese residents who were injured in China by a product manufactured and distributed in China to bring their claims in the United States just doesn’t sound right.  People deserve an avenue for redress, but there must be some legal concept – or Latin phrase – to prevent our courts from having to adopt an open door policy.  The Fourth Circuit held that these plaintiffs had an adequate forum – a fund established by the Chinese government to compensate those affected by the contaminated formula.  While the American court system may provide the potential for greater relief, it seems unreasonable to allow the plaintiffs to forum shop under the facts of this case.

The Fourth Circuit used Tang as a platform to affirm the reach of the forum non conveniens doctrine to non-judicial remedies.  However, we wish the Court could just informally state what the rest of use are thinking – “that just doesn’t sound right.”  Certainly there must be a Latin phrase for that.

For a thorough summary of the Fourth Circuit’s opinion, please read this piece from our friends at the Product Liability Monitor.