Book Review: Robert Blecker’s The Death of Punishment

Recently, we here at Abnormal Use were invited to review The Death of Punishment, a new book by Professor Robert Blecker of New York Law School that deals with the philosophy of punishment in the American criminal justice system. We were somewhat surprised by this opportunity because, as our reading faithful know, our humble blog typically reports on civil product liability cases, which is a substantial part of our bread-and-butter at Gallivan, White & Boyd, P.A. We usually aren’t involved in the criminal side of the bar, except on those all-too-frequent occasions when our editor in chief tries to supplement his income by making bootleg copies of major motion pictures. In any event, we were intrigued by the concept of Professor Blecker’s book and flattered by the request.

First, a note about the author. Professor Blecker has taught criminal and constitutional law courses at New York Law School for more than 35 years. He identifies himself as a retributionist, which – admittedly – is a term I had to look up. Generally, a retributionist believes that society’s primary response to crime should be a proportionate punishment experience. To say it another way, when fashioning a criminal sentence, society should not be as concerned with rehabilitating the criminal, or with deterring other, future crimes, as it should be with imposing punishment against the criminal in an amount commensurate with his offense.

Professor Blecker is probably best known for his reputation as an outspoken advocate for the death penalty. But to be clear, The Death of Punishment is not about capital punishment—at least not exclusively. Instead, The Death of Punishment is an explanation of Professor Blecker’s philosophy on how society should incarcerate the “worst of the worst”—the individuals whose crimes are so morally reprehensible that they deserve a unique punishment experience. So, what’s wrong with how we’re incarcerating prisoners now? In contemporary thought, there are three central objectives of incarceration: (1) punishment of the criminal; (2) deterrence for the criminal and others for committing other, future crimes; and (3) rehabilitation of the inmate for re-introduction into society. After spending years in prisons around the United States meeting with inmates, learning about their crimes, their thoughts on justice, and their individual experiences during incarceration, Professor Blecker has concluded that none of these are being met. To begin with, rehabilitation and re-socialization are largely mythical. Professor Blecker briefly explores the challenges that inmates face upon their release. Job prospects are dim, and very often, inmates do not have positive support networks to facilitate their transition into ordinary, lawful life. Consequently, former inmates very often fall back into criminal behavior and end up not in rehabilitation, but in re-incarceration. To paraphrase one inmate quoted extensively in The Death of Punishment, twenty-five years of rehabilitation is forgotten after twenty-five days on the outside.

Deterrence is also largely an illusion. Many of the individuals who populate our prison system were born into an environment where criminal behavior was just behavior; this is simply how you were taught to act. Consequently, individuals are raised in circumstances where the threat of incarceration was just the cost of doing business. Prison isn’t really a threat; it’s just an opportunity cost. Furthermore, in Professor Blecker’s experience, life inside prison was no worse than life on the outside; all too often, it was better. On several occasions, Professor Blecker met with inmates who confessed to committing crimes in order to return to prison. In some cases, the subsequent crimes were more serious so that the offender could get a longer prison sentence in facilities that offered more privileges to its inmates.

Professor Blecker also concludes that punishment is an illusion. It is not sufficient to presume that incarceration in and of itself is punitive. It may be, if you have something to lose on the outside. But if life inside is no different than—if not better than—life outside, then time spent in prison is not really lost and it’s not really punishment. At least in prison, inmates have nutritious food, shelter, medical care, diverse recreational opportunities, and other privileges. These are things that America’s unincarcerated poor struggle with obtaining; things which inmates struggled with obtaining before they were incarcerated.

In sum, Professor Blecker concludes that the American prison system is failing at administering justice. Crimes are not being addressed with incarceration that provides a truly punitive experience, particularly for inmates who are convicted of committing the worst of the worst types of crimes.

What is Professor Blecker’s solution? The criminal justice system should create a separate institutional structure for the worst of the worst; that is, those individuals who commit the most morally outrageous crimes and who will never be capable of re-socialization. For these inmates, rehabilitation is irrelevant. Additionally, because of the morally outrageous nature of their offenses, they should be incarcerated in an environment that provides a uniquely punitive prison experience—permanent punitive segregation. Here, there would be only limited physical contact with other individuals; no television; no internet access; and no recreation. There would be hard labor. For food, only a bland nutrient-rich loaf would be available, just enough to sustain the inmate’s health but lacking any flavor from which the inmate could derive pleasure. For medical care, the inmate would receive only as much as the poorest members of our society routinely do. If this sounds harsh, Professor Blecker intends it to. Because these inmates—the worst of the worst—have deprived other individuals, their victims, of their lives and their opportunities to enjoy life’s simple pleasures, these offenders must be punished to the same extent. In fact, Professor Blecker would say that society has a moral obligation to do so. Anything less deprives justice from being served.

Now here’s the minor tie-in with product liability. Professor Blecker argues that the worst of the worst do not consist solely of those who commit violent crimes. It could also describe white-collar executives who make morally outrageous business decisions that harm others. For example, the Ford executives who green-lighted the Pinto knowing that there was a significant risk of fire presented by the gas tank’s design. In Professor Blecker’s opinion, the color of the collar on your shirt is irrelevant. There is no principled moral distinction between the manufacturing executive who knowingly authorizes the distribution of an inherently dangerous product capable of causing consumers’ disfigurement and death and the common thug who fires a weapon into a crowd of innocent by-standers. Justice demands that each be punished based on their offenses against common morality.

Where does the death penalty fit into all this? Although Professor Blecker is an advocate for capital punishment, he does not take the position that death can only be atoned with death. Not everyone that commits a murder, even if premeditated, should qualify for the death penalty. Capital punishment must be reserved explicitly for those who kill in connection with sufficiently aggravating circumstances as to justify the imposition of the harshest sentence available to civilized mankind. Professor Blecker’s philosophy is rooted in the belief that life – an individual’s life – has incalculable value. And if that life is terminated by another’s morally indefensible conduct, then society has a moral imperative to punish the offender with death. Not because society doesn’t value life; but because society values life so much that it must take the lives of those who don’t exist in the same moral universe. For everyone else, Professor Blecker argues, permanent punitive segregation is enough.

So what did you think of the book? I enjoyed it. While I appreciated Professor Blecker’s philosophy of criminal punishment, the parts I liked the most – and which I believe make The Death of Punishment appealing to a wider audience – are the sections recounting the conversations that Professor Blecker had with inmates. All too often, people talk about inmates, punishment, and justice as abstractions, as if they don’t really exist. The Death of Punishment breaks this mold by presenting specific discussions about punishment and justice as understood by inmates who have been sentenced by our justice system, have experience with “punishment,” and are serving out their periods of incarceration. These conversations provide insight into a world that is absolutely foreign to most – certainly to me. Particularly noteworthy are Professor Blecker’s conversations with convicted murderers awaiting the execution of their death sentences. In a strange twist, at times, Professor Blecker becomes the law student of the death row inmate, sparring in an intellectual game of cat-and-mouse about the philosophy and justice of capital punishment with the very individuals whose fate is death by state execution. Perhaps the most compelling take-away from The Death of Punishment was the sense of humanity I felt for the death-row inmates, people who I and society routinely condemn as the worst of the worst and not worthy of further consideration. Professor Blecker demonstrates that these people, maybe more than most, have a story to tell – a story that’s worth listening to, even though the storyline ends with the main character’s execution, as it justly may. I recommend The Death of Punishment to anyone who would appreciate thoughtful discussion of the philosophy of punishment, particularly from the perspective of the “worst of the worst,” in the American criminal justice system.

Closing Thoughts Of A Simple Blogger

So this is it.  My last post for Abnormal Use.  Instead of taking time to wax comedic about products liability claims, I thought I’d take this to serioustown for an observation about the silent victims of the judicial budget criss.  The victims I’m referring to are the members of the state and federal judiciary.

There are any number of articles you can Google about the judicial budget crisis, so there’s no need to recap them here.  To some extent, this crisis is nothing new for our courts.  The past few years have been difficult for everyone, with relatively few folks in any industry seeing any pay increase.  This has been especially true for judges, who in large part, have seen the value of their salary steadily decline over the past 20 years.  In the federal judiciary, for example, there have been no pay increases over that time period and few cost of living adjustments.  Even as other branches of the federal government have had increases and adjustments.  This is unacceptable. We are glad to see that one group of federal judges has already successfully sued the government for having been unjustly compensated, and that another group is organizing into a class action for the benefit of all similarly situated judges.

There’s something confidence-inspiring about seeing judges sue their own government for the redress of their grievances.

Some may say So what?  Who cares? I care.  And not just because I’m a lawyer.  I care because I believe the judiciary is the soul of the American republic.  An impartial system of dispute resolution is critical for maintaining order and liberty.  If there’s no such system of dispute resolution—or if it’s so slow that it might as well not exist, then people will start taking subjective notions of justice into their own hands.  And that is a frightening thought.  I honestly believe that you could take away executive and legislative institutions right now, and society, in its crippled state, would still hobble forward.  But if you took away judicial institutions, society would collapse on itself in no time at all.

It’s been fun writing for the blog and reporting stupid cases from coast to coast.  However, we’re able to laugh at those cases only because there’s an orderly system through which those disputes may be resolved.  As we head through these strange economic times, I hope and pray that those with the ability to make budgetary decisions for government institutions will act fairly towards members of the judiciary and responsibly towards the longevity of the American experiment.

And with that, goodbye.  Farewell.  And amen.

A Psalm for Google

Admittedly, there is almost nothing I can do on the Internet without Google.  I Google everything.  Sometimes, when I’m feeling lazy, I Google-search for websites even though I know their addresses by heart.  One of my new favorite things is to watch movies at home—especially old movies—with my smartphone in hand.  That way, I can Google the backgrounds of the actors and actresses or the origin of some obscure cinematic reference with ease.  It’s like a do-it-yourself Pop-Up-Video.

In any event, I love Google.  It does a lot for me.

This past weekend, it even got me entangled in an Oklahoma class-action lawsuit.  Here’s how it happened.

For the past couple of months, my TV has been behaving oddly. When you turn it on, it makes a lot of clicking sounds and cycles through on-and-off for about 30 seconds before it actually, finally, turns on.  It’s annoying, but not to the point of ruining my day, so I haven’t done anything about it.  Last week the missus and I were planning to watch something she likes and I hate — “Dance Moms,” “Grey’s Anatomy,” I can’t remember — when the TV began the aforementioned clicking/cycling routine.

At this point, my lovely wife suggested that I Google these symptoms.  And I promptly disregarded her.

Like Google can tell me why my TV is making strange noises.  Please!  It doesn’t know everything.

Oh, ye of little faith.

As whatever godawful show my wife was watching droned on, I needed a distraction.  I navigated to Google and attempted to diagnose my TV’s illness.  It would at least pass the time.  I went to the search bar, typed in the name of the manufacturer of my TV and the word “clicking,” and hit “Search.”  Almost instantaneously, Google returned dozens of sites talking about TVs like mine suffering from the same clicking-and-cycling issues.  Apparently, there’s a defect in some capacitors that causes this problem.  More importantly, for my own selfish interests, someone else had already litigated this issue on behalf of a class of plaintiffs—to which I happened to belong—and obtained a settlement that will provide me with a free repair or replacement.  Now that’s what I’m talking about!

This is fascinating on a couple of levels.  Literally, in the span of one minute, I went from being resigned about the weirdness of my TV’s clicking and cycling to hopeful about the free repair or replacement coming my way.  The only thing that separated those two perspectives was the fact that I ran a simple Google search.  Which was free.  As opposed to the value of the benefit that I received.  If I were to have paid for my own repair, it would have been at least $50.  Or, if I had bought another TV, it would have been 20-30 times that.  Perhaps the most important observation is that, in the not-too-distant past, this would have been impossible.  I mentioned previously that the class action settlement was obtained in Oklahoma state court.  Without Google, it’s likely that I never would have learned of the litigation or the settlement.  After all, the manufacturer had no way to know that I owned one of its TV’s and that I was experiencing a problem.  And I had no way to know that the problem I was experiencing was common to a lot of other people.  Google therefore supplemented a tremendous information gap in a way that was ultimately beneficial for me, the almighty consumer, but also—strangely—for the manufacturer.  Rather than talk trash about my TV and its clicking-and-cycling issues, I can talk about how the manufacturer fixed my TV and extended its useful life for several more years.  By informing me about the class action settlement and the opportunity for repair, Google was protecting the goodwill of the TV’s manufacturer in the eyes of its customers.  And I’m likely to buy another TV from that manufacturer in the future.

There’s no question that the Internet has been a transformative innovation, certainly with regard to economic issues.  But it also holds the potential to be transformative with regard to legal interests.  In the globalized world, regardless of where products may move geographically, it is now possible for individual owners to express their frustrations about those products in a virtual public environment, to become connected with each other’s opinions and experiences by simply by surfing the Internet, and incredibly, to opt in remotely to litigation and/or settlement from the comfort of their couch as a consequence of running a simple Google search on a random Thursday night.

Water, Water Everywhere and Not a Drop to Drink (If You’re Downstream)

Recently, I had a great conversation with the executive director of a facility that processes wastewater. Inevitably, the conversation turned to the scandalous parts of his job. So, I asked, ever find anything unusual in this stuff? Of course he had. Blah, blah, blah, alligators, turtles, et cetera. The usual. Here’s what he’s also found: chemical evidence of illegal drug use. Which only makes sense, right? People are going to take drugs, excrete waste, and their excrement will contain evidence of the habit. Very interesting.

Here’s where the story takes a turn for the disturbing. It’s something I never thought about, and maybe you haven’t, either.

What about prescription drugs? Ever dumped any leftover prescription pills into the toilet? Know anyone that has? How about all the folks who take prescription pills on a daily basis and then use the bathroom? You know who that describes? Literally everyone. Regardless of the manner of entry, the chemical remnants of prescription drug use end up in the water supply.

Here’s the bad news: almost no locality does any pre-treatment for the chemicals in the water supply that would address this issue. Although government agencies are studying these circumstances, there is no published information on the ultimate effect of the consumption of chemical remnants on downstream consumers.  But if we’re taking bets on whether having chemical remnants of prescription and non-prescription drugs in your water supply is a good thing, I’ll take the under on that.

It’s probably just a matter of time before claims are brought against someone for this water supply issue. I say “someone” because it’s not entirely clear who claims could be brought against. It’s foreseeable that an individual would try to sue pharmaceutical companies, but there would be obvious problems with causation, among other issues. It’s also conceivable that a downstream individual or body politic would sue an upstream body in nuisance for the contamination of the water supply. But again, there would seem to be causation problems.

In any event, the immediate priority should be making sure that everyone has clean, safe water to drink.

Post-Electoral Products Liability Litigation As A Political Weapon

Politics is messy business, especially in presidential elections. And as Bush v. Gore taught us in 2000, the messiness of presidential politics can go on even after the election is over. This is especially true when states like Florida prove they can’t get their acts together . This past election cycle, I was shocked the election seemed decided by about 8 pm. This was approximately the time that Fox News’ reporters showed visible signs of clinical depression, which I thought was funny. Those guys need a healthy dose of keep calm and carry on.

In any event, I found myself on Election Night contemplating the intersection between messy presidential politics and products liability litigation. And where, you may be asking, is that intersection? Well, Bush v. Gore showed us that presidential campaigns are not above using post-electoral litigation as a strategic political tool. But why should politicians have all the fun? Why can’t average joes like myself – who may or may not be acting as political operatives – file post-electoral complaints against the manufacturers of voting machines or the writers of software code used in voting machines, claiming that my vote was not counted, and more broadly, that the machines failed to accurately capture the votes of my fellow Americans? The downside of this litigation strategy is that it wouldn’t undo the results of the election. The upside to this litigation is that, assuming the hypothetical plaintiff could reach the discovery phase of the suit, the resulting fishing expedition could find some voting irregularity that could be used to compromise the winning candidate’s legitimacy.

This is not so far-fetched. Many elections are decided by slim margins. Given that votes are now taken by machines, there will be a fail-rate associated with the use of those machines. In elections with slim margins, the fail-rate associated with a particular model of voting machine may cover the spread, which could establish that the failure to properly account for the vote was outcome determinative. This tees up a scenario of explosive litigation with a nasty propensity for undermining confidence in the electoral system.

So why haven’t we seen this yet? I have no idea. My brief amount of research has not found any claims to this effect. But I have to believe it’s only a matter of time.

Banana Boat: A Product Recall Observed

Now that I’m in my early thirties, I have to worry about things I never had to before. Like putting sunscreen on. Specifically, like putting sunscreen on the top of my head. I’m not thrilled about this development in my life. But it turns out I really wasn’t given a choice. Somewhere between genetics and the practice of law, I never had a chance of having a full head of hair.

In any event, I’m told that since my hairline has entered the autumn of my life, I have to put sunscreen on my head to avoid skin cancer. But last week, I learned that depending on the sunscreen I use, my head might catch on fire. That’s because Banana Boat issued a recall for some of its spray-on sunscreen products that may have a nasty tendency to react aggressively to open flames and sparks. When it comes down to it, I really only have two requirements for sunscreen: (1) it must prevent my skin from sunburn; and (2) it must not result in my face burning off. Other than that, I’m pretty low maintenance.

There’s no doubt that Banana Boat regrets the injuries that have been caused by its product. But we have to give them credit for their response. After the first injury was reported, Banana Boat conducted an internal investigation to determine whether the report was founded, and if so, what the cause was. Banana Boat followed that up with voluntarily engaging in the recall. It’s not easy or convenient for a company to conduct a massive product recall; there’s certainly an adverse impact to the company’s sales and reputation in the short term. But taking this type of affirmative action to address a problem is the responsible thing to do, and we salute Banana Boat’s response.

First World Problems: Litigating A Really Sweet Pool Table

Several weeks ago, a breach of contract/failure-to-warn lawsuit was filed in California state court against a specialty billiard table manufacturer. The case is Desert Beach, LLC v. Nottage Design Pty Ltd. et al, (Orange County). The complaint alleges that Desert Beach, which is a luxury resort, purchased a futuristic pool table from the defendants that – in my immodest opinion – is really, really sweet. Basically, instead of being covered in traditional green or blue felt, the defendants’ pool table is made entirely of glass. Make no mistake, regardless of the threat of war with Iran or the fact that some jerk-wad from Chicago literally just tried to hijack my bank account (props to Wells Fargo for shutting that down), this pool table represents a future I’m proud to live in.

Here’s the problem: The table is apparently easier to break than Michael Vick, who I’m told is also made of glass. Well of course, you may be thinking. A glass pool table is begging to be broken. That’s what I thought, too. However, the defendants allegedly coat each table in a synthetic known as “Vitrik,” which is supposed to make the table top highly durable. That’s one piece of the equation. The other piece is that only specialty billiard balls are to be used on the table. You could also get the best new pinball machines.

Which brings us to the lawsuit. The complaint alleges that defendants failed to tell Desert Beach about the fact that they had to use specialty billiard balls. So guess what Desert Beach did. They went to the Orange County equivalent of Wal-Mart (which may, in fact, be Wal-Mart, I don’t know) and bought the first set of billiard balls they laid their eyes on. And shot pool with them. And damaged the table so badly that not even Obi Wan could offer any hope.

Desert Beach called the defendants and asked them to make it right. And in a power-move befitting of a company who charges $73,000 for a pool table, the defendants allegedly told Desert Beach to pound sand. Then, again allegedly, the defendants tried to reverse engineer their website and other documents to show that Desert Beach knew they were only supposed to use specialty billiard balls with the table. Desert Beach was not amused by the underwhelming customer service and decided to double-down on the insanity with a lawsuit in California, the land of crazy lawsuits.

The defendants haven’t answered the lawsuit yet, so we don’t know their side of the story. But let’s be honest. The pool table cost $73,000. Did the defendants think that Desert Beach would just walk away from that? I mean, if you’ve got that much money to blow on a pool table, you’ve got that much money to blow on litigation to prove a point.

The “Popcorn Lung” Case: A Lesson in Marketing to the Jury

There has been a $7 million verdict in Wayne Watson v. Dillon Companies, Inc. et al., in Colorado. Watson is a products liability case, and the basic allegation is that microwaveable popcorn gave the Plaintiff lung disease. Hence, the “Popcorn Lung” case, as these cases are being called. When I first heard of this type of litigation, my first thought was that this was yet another case mocking the integrity of the American judicial system, and I was frankly surprised that a federal judge had allowed this abomination to survive summary judgment. After all, the thought that microwaveable popcorn—of all things—could cause lung disease strikes me as utterly preposterous.

But after some investigation, I’ve been forced to temper my initial judgment.

Don’t get me wrong. I’m not saying I’m buying what the plaintiff is selling, even though the jury apparently did. I’m just saying I don’t think it’s as implausible as I first believed. Here’s why.

The theory of the case was not that microwaveable popcorn per se causes lung disease. It’s that a particular chemical that was commonly used to give microwaveable popcorn its buttery taste—diacetyl—can cause lung disease. And this argument is not new. In the early 2000s, there were a series of cases brought by folks who worked in commercial popcorn production facilities who made the same claim; that because of their long-term exposure to significant amounts of diacetyl in the air, they developed certain forms of lung disease. So ostensibly, there may be some science to back up the claims in those cases, which may be applicable to the Watson case.

Let’s assume – just for the sake of this post, mind you – that the research in the commercial popcorn workers’ cases is somehow founded. We’ve not reviewed all that literature, nor have we looked into the expert reports in the Watson case. But bear with us. Even if that research is founded, there seems to be a leap of faith that must be taken to get from those cases to Watson’s. Watson wasn’t a commercial popcorn worker. However, his claim is that during the corn-popping process, diacetyl is vaporized into aerosol form, and like the commercial popcorn workers, he inhaled the diacetyl which is now claimed to have caused his lung disease. We would expect Watson’s dose to be significantly less than the doses presumably inhaled by commercial popcorn workers—even though Watson claims to have eaten 2 to 3 bags of microwaveable popcorn every day for several years. The critical scientific question, then, is where does a person’s exposure to diacetyl cross the line into the danger zone?

I don’t think the importance of this question can be overstated. After all, I’ve eaten microwaveable popcorn. You’ve eaten microwaveable popcorn. And probably every member of that jury has eaten microwaveable popcorn (although after the trial, we suspect that the jurors who found the defendants liable may be cutting down on their microwavable popcorn intake). Yet, somehow, the icy hand of Orville Redenbacher reached out from beyond the grave and struck Watson down with popcorn-induced lung disease? That seems hard to believe. To win this case, plaintiff’s counsel needed to enable the jury to overcome their natural suspicion towards these claims, and the science is going to have to be pretty darn good.  Apparently, it worked.

But there’s a marketing point here to be made. “Popcorn Lung” sounds ridiculous. The name trivializes the purported issues and conjures up the same ghosts that haunt the “McDonald’s Coffee” case. To many an average person, this verdict will represent everything that is wrong with the American judicial system. The proposition that microwaveable popcorn—a staple of each American household and every family movie night—is associated with lung disease will be difficult for many readers to overcome.  The jury somehow overcame that skepticism. If I’m plaintiff’s counsel, the enemy here should be diacetyl, if the science truly supports that theory. Sure, it was applied to microwaveable popcorn. But that product is safe. Perhaps that explains it.

Plaintiffs’ Bar Tries to Run the Option on Res Ipsa Loquitur; Sacked by Supreme Court

The South Carolina Supreme Court recently shut down an attempt by the Plaintiffs’ bar to make an end-run around the rules of evidence. The case centered around the admissibility of expert testimony that would have made Rule 703 about as effective as the Maginot Line. See Graves v. CAS Medical Sys., Inc., Op. No. 27168 (Aug. 29, 2012).

Here’s how the play developed: It was alleged that defendant CAS designed and manufactured a medical device that monitored the breathing and heart rates of newborn children. If either of those rates became too fast or too slow, the device would sound an alarm, and data about the event would be recorded. The device also had a separate system that tracked whether the alarm sounded. On the night of April 10, 2004, Plaintiffs’ daughter, who was being monitored by the device, experienced a significant decline in her breathing and heart rates and ultimately passed away. Her cause of death was later diagnosed as Sudden Infant Death Syndrome.

Make no mistake: this was an unspeakable tragedy for Plaintiffs’ family, and our deepest sympathies go out to them for their loss. It is regrettable that any discussion of products liability cases almost always involves difficult facts. This is especially true in this case and cases like it, where the injured party is a child and the nature of the injury is death. We here at Abnormal Use would much prefer a world where there was no need to report on such cases ever again.

In any event, a case was eventually brought against CAS on the theory that their device failed. Plaintiffs’ testimony (which was ostensibly obtained at deposition) was that the CAS device’s alarm never sounded. As a consequence of the device failing, Plaintiffs did not know that their daughter’s breathing and heart rates were falling, and never had an opportunity to resuscitate her.

Here’s where the theory of the case gets interesting. Plaintiffs’ counsel alleged that the CAS’s alarm did not sound due to defect in the device’s software. In furtherance of this theory, counsel retained three experts in software design to discuss “spaghetti code,” which is apparently when an electronic signal working its way through software code gets misdirected by certain external inputs, resulting in the device’s failure to perform as intended. In this case, it was alleged that the CAS device properly detected that Plaintiffs’ daughter was experiencing respiratory distress, but that due to spaghetti code, the signal to the device’s alarm was misdirected, causing the alarm to never sound.

Let’s stop here for a second. Hypothetically, there are three possible explanations for why the device “failed.” One is that the device was defective. However, the device was tested and found to function properly. Therefore, it was conceded that “hardware error” was not at issue. The second cause of failure is that the software failed, as discussed above. The third cause—which is not really failure—is that the device functioned as intended, but that Plaintiffs never heard the alarm sound. This case essentially boiled down to a contest between “software error” and “complaint error.”

Plaintiffs’ position was that software error must necessarily have been the cause, according to an analysis which was novel in the state of South Carolina: the “reasoning to the best inference” analysis. Or as I like to call it, the Sherlock Holmes analysis. In The Sign of the Four, Sherlock Holmes famously quipped, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” And that is the intellectual underpinning of the “reasoning to the best inference” analysis. If all the possible causes for an event can be identified and eliminated, save for one, the one possible cause that remains must have been the actual cause for the event’s occurrence.

In this case, hardware error had been eliminated. And from Plaintiffs’ perspective, complaint error had been eliminated. There was testimony from each adult in the house at the time of the decedent’s passing that no alarm had sounded. Therefore, again from Plaintiffs’ perspective, the only possible cause that remained was software error.

Critically, the Supreme Court seemed willing to accept the Sherlock Holmes analysis as a viable way to establish circumstantial evidence of causation, at least in the abstract. But the Court was not impressed with how it was applied in this case. First, there was the inherent, self-serving nature of the testimony. Of course Plaintiffs’ position would be that the alarm never sounded. It would seem somewhat unfair to allow complaint error to be ruled out by the unilateral testimony of the Plaintiffs. Especially since the device was tested later and found to work properly. Relatedly, there was an equally likely explanation for the device’s alarm to have not been heard: Plaintiffs slept through it. The Court’s opinion notes that the CAS device reported that the alarm had sounded. Ultimately, these questions created an issue of fact that prohibited complaint error from being ruled out as a possible cause of the alarm’s failure.

There was a third problem with Plaintiffs’ case though. None of Plaintiffs’ experts had been able to identify any portion of the source code that would have misdirected the alarm’s signal. Instead, they had merely postulated that, because hardware error and complaint error had (in their opinion) been eliminated, software error must have been the cause. Furthermore, according to their “spaghetti code” theory, a misdirected signal could have been triggered by any type of unanticipated external input, which may never be capable of identification.

As if this weren’t enough to give the Court heartburn, there was more to Plaintiffs’ theory. For proof that the device was subject to software error, Plaintiffs wanted to introduce other complaints (approximately fifty) that had been filed with the federal Food and Drug Administration of the CAS device’s failure. There was no way to determine the underlying circumstances of these other complaints, nor was there any way to substantiate them.

Under these circumstances, the Supreme Court did the only thing it reasonably could do: the Court shut the Plaintiffs’ case down. There was absolutely no evidence that the CAS device failed. At best, there was a question of fact as to causation between software error and complaint error. Ordinarily, for purposes of summary judgment (which is when Plaintiffs’ case was dismissed by the trial court), a question of fact is sufficient to survive and present the case to the jury. But in a products liability case, there must be some evidence that the product in question was defective. In this case, there was none. And it is a matter of black-letter law in South Carolina that products are not presumed defective merely because an injury occurred.

All things considered, it appears reasonably clear that Plaintiffs were trying to use the Sherlock Holmes theory as a back-door way of introducing the doctrine of res ipsa loquitur into South Carolina law. Res ipsa is the theory that an injury would not have occurred but for the fact that some negligent act also occurred which caused the injury. Although res ipsa is a favorite topic of first-year Torts professors, in South Carolina, the doctrine has been expressly rejected. First, in Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 79 (Ct. App. 1991), and more recently, in Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 684 (2010). It is worth noting that the same counsel who represented the plaintiffs in Watson also represented Plaintiffs in Graves. He gets a big ol’ Abnormal Use A+ in persistence.

Graves is an excellent decision for defendants in products liability actions. However, it remains to be seen how the Sherlock Holmes analysis will be used, and perhaps abused, in subsequent litigation, now that it appears to be a viable method of establishing causation.

The Journal of Frivolous Tort Claims: Carrillo v. The Dallas Cowboys (Post 2 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Steve’s views, while yesterday, as you may recall, we shared Nick”s thoughts. We hope you enjoy reading about it as much as we did.]


The Dallas Cowboys were sued last week by Plaintiff Jannelle Carrillo, who alleged that she sustained third-degree burns while sitting on a bench outside the stadium before a preseason game in 2010. The allegations of the complaint, which is linked here, speak for themselves. The bench in question was made of black marble, and “was uncovered and openly exposed to the extremely hot August sun. The combination of the nature of the black, marble bench and hot sunlight caused the bench to become extremely hot and unreasonably dangerous. No signs were posted at or near the bench warning that it was too hot for persons to sit on.” It is alleged that as a consequence of the unreasonably dangerous condition of the bench, “plaintiff suffered third degree burns to her buttocks,” which required her to undergo hospitalization and skin grafts that have left her disfigured.

Ms. Carrillo’s injuries are no laughing matter. But the fact that she would try to hold the Cowboys franchise accountable is utterly preposterous. The sun is hot. Things left out in the sun, in August, in Texas, get hot. Are we really supposed to believe that Ms. Carrillo needed a written warning about any of this? Please.

But let’s give her the benefit of the doubt. Let’s assume she didn’t know that the sun made stuff hot. It seems to me she would have figured out that the bench was hot approximately 1 split second after she sat down. Why not just stand up? The complaint doesn’t say how long Ms. Carrillo continued to sit on the bench, but I’m willing to bet she didn’t stand up for a while. I bet she kept on sitting there, complaining to her friends and anyone who would listen, “Man, this bench is hot.” Meanwhile, her goose was slowly getting cooked.

Generally, there is no duty to warn folks against open and obvious dangers, and dangers – to the extent this bench presented one – don’t get much more open and obvious than this. It is my prayer to the God of justice and wisdom that this case is thrown out on a motion to dismiss.